with the Democratic party. He was an ardent supporter of the war, and
of the administration of Mr. Madison, yet not a blind advocate of
every measure proposed by the party, as the journals of that period
will show. His votes were all given in reference to principle. The
idea of supporting a dominant party, merely because it was dominant,
did not influence his judgment, or withdraw him from the high path of
duty which he had marked out for himself. He was well aware, that the
association of individuals into parties was sometimes absolutely
necessary to the prosecution and accomplishment of any great public
measure. This he supposed was sufficient to induce the members
composing them, on any little difference with the majority, to
sacrifice their own judgment to that of the greater number, and to
distrust their own opinions when they were in contradiction to the
general views of the party. But as party was thus to be regarded as
itself, only an instrument for the attainment of some great public
good, the instrument should not be raised into greater importance than
the end, nor any clear and undoubted principle of morality be violated
for the sake of adherence to party. Mr. McLean often voted against
political friends; yet so highly were both his integrity and judgment
estimated, that no one of the Democratic party separated himself from
him on that account. Nor did his independent course in the smallest
degree diminish the weight he had acquired among his own constituents.
"Among the measures supported by him, were the tax bills of the extra
session at which he first entered Congress. He originated the law to
indemnify individuals for property lost in the public service. A
resolution instructing the proper committee to inquire into the
expediency of giving pensions to the widows of the officers and
soldiers who had fallen in their country's service, was introduced by
him; and the measure was afterward sanctioned by Congressional
enactment. By an able speech he defended the war measures of the
administration; and by the diligent discharge of his duties in respect
to the general welfare of the country, and the interests of his people
and district, he continued to rise in public estimation. In 1814, he
was re-elected to Congress by the unanimous vote of his district,
receiving not only every vote cast in the district for representative,
but every voter that attended the polls voted for him--a circumstance
that has rarely occurred in the political history of any man. His
position as a member of the committee of foreign relations and of the
public lands, indicates the estimation in which he was held, and his
familiarity with the important questions of foreign and domestic
policy which were in agitation during the eventful period of his
membership."
In 1815, he was urgently solicited to become a candidate for the U.S.
Senate, but he declined. He was then but thirty years of age. In 1816,
he was unanimously elected judge of the Supreme Court of the state of
Ohio and he resigned his seat in Congress. While in Congress he voted
for a bill giving to each member a salary of $1,500 a year instead of
the per diem allowance.
Judge McLean presided on the bench in Ohio for six years, during which
time he won for himself an enviable judicial reputation. In 1822, he
was appointed commissioner of the general Land Office by President
Monroe; and in 1823, he entered the cabinet as Postmaster General. As
Postmaster General he secured a fine reputation, improving its
finances and in every possible way improving the postal facilities of
the country. By an almost unanimous vote of Congress his salary was
increased from $4,000 to $6,000.
"The distribution of the public patronage of his department exhibited
in another respect his qualities as an executive officer, and
manifested the rule of action that has always marked his character.
The principle upon which executive patronage should be distributed,
has been one of the most important questions in this government, and
has presented the widest variation between the profession and practice
of individuals and parties. In the administration of the post-office
department by Judge McLean, an example was presented in strict
consistence with sound principles of republican government, and just
party organization. During the whole time that the affairs of the
department were administered by the judge, he had necessarily a
difficult part to act. The country was divided into two great parties,
animated by the most determined spirit of rivalry, and each bent on
advancing itself to the lead of public affairs. A question was now
started, whether it was proper to make political opinions the test of
qualification for office. Such a principle had been occasionally acted
upon during the preceding periods of our history; but so rarely, as to
constitute the exception, rather than the rule. It had never become
the settled and systematic course of conduct of any public officer.
Doubtless every one is bound to concede something to the temper and
opinions of the party to which he belongs, otherwise party would be an
association without any connecting bond of alliance.
"But no man is permitted to infringe any one of the great rules of
morality and justice, for the sake of subserving the interests of his
party. It cannot be too often repeated, nor too strongly impressed
upon the public men of America, that nothing is easier than to
reconcile these two apparently conflicting views. The meaning of
party, is an association of men for the purpose of advancing the
public interests. Men thrown together indiscriminately, without any
common bond of alliance, would be able to achieve nothing great and
valuable; while united together, to lend each other mutual support and
assistance, they are able to surmount the greatest obstacles, and to
accomplish the most important ends. This is the true notion of party.
It imports combined action; but does not imply any departure from the
great principles of truth and honesty. So long as the structure of the
human mind is so varied in different individuals, there will always be
a wide scope for diversity of opinion as to public measures; but no
foundation is yet laid in the human mind for any material difference
of opinion, as to what constitutes the great rule of justice.
"The course which was pursued by Judge McLean was marked by the
greatest wisdom and moderation. Believing that every public officer
holds his office in trust for the people, he determined to be
influenced by no other principle in the discharge of his public
duties, than a faithful performance of the trust committed to him. No
individual was removed from office by him, on account of his political
opinions. In making appointments where the claims and qualifications
of persons were equal, and at the same time one was known to be
friendly to the administration, he felt himself bound to appoint the
one who was his friend. But when persons were recommended to office,
it was not the practice to name, as a recommendation, that they had
been or were warm supporters of the dominant power. In all such cases,
the man who was believed to be the best qualified was selected by the
department."
In 1829, General Jackson appointed Mr. McLean to the bench of the
Supreme Court of the United States, he having previously declined the
War and Navy Departments, although the two men differed somewhat in
their ideas of public policy. In January, 1830, he took his seat upon
the bench, and since that time the only indications of Judge McLean's
opinions on the political issues of modern times which the public
could notice, have been afforded by his published decisions involving
the question of slavery. Some years since, the private friends of
Judge McLean were aware that he sympathized very deeply with the
Anti-Slavery reformers of the West and North, and that he did not
approve of the political principles of the Democratic party, as laid
down in their regular platforms, on this subject. He may be safely set
down as a conservative opponent of negro slavery, and its extension
into the territories of the republic. In the last Presidential
election he voted for John C. Fremont, which would seem to settle the
question as to his political affinities. He is a Republican.
From Judge McLean's opinion, delivered in the Dred Scott case, we
gather his views upon some of the more prominent political issues of
the day:
"As to the locality of slavery. The civil law throughout the
continent of Europe, it is believed, without an exception, is,
that slavery can exist only within the territory where it is
established; and that, if a slave escapes, or is carried beyond
such territory, his master cannot reclaim him, unless by virtue of
some express stipulation.
"There is no nation in Europe which considers itself bound to
return to his master a fugitive slave, under the civil law or the
law of nations. On the contrary, the slave is held to be free
where there is no treaty obligation, or compact in some other
form, to return him to his master. The Roman law did not allow
freedom to be sold. An ambassador or any other public functionary
could not take a slave to France, Spain, or any other country in
Europe, without emancipating him. A number of slaves escaped from
a Florida plantation, and were received on board of ship by
Admiral Cochrane; by the King's Bench, they were held to be free.
In the great and leading case of Prigg _v._ the State of
Pennsylvania, this court says that, by the general law of nations,
no nation is bound to recognize the state of slavery, as found
within its territorial dominions, where it is in opposition to its
own policy and institutions, in favor of the subjects of other
nations where slavery is organized. If it does it, it is as a
matter of comity, and not as a matter of international right. The
state of slavery is deemed to be a mere municipal regulation,
founded upon and limited to the range of the territorial laws.
This was fully recognized in Somerset's case, which was decided
before the American Revolution.
"There was some contrariety of opinion among the judges on certain
points ruled in Prigg's case, but there was none in regard to the
great principle, that slavery is limited to the range of the laws
under which it is sanctioned.
"No case in England appears to have been more thoroughly examined
than that of Somerset. The judgment pronounced by Lord Mansfield
was the judgment of the Court of King's Bench. The cause was
argued at great length, and with great ability, by Hargrave and
others, who stood among the most eminent counsel in England. It
was held under advisement from term to term, and a due sense of
its importance was felt and expressed by the Bench.
"In giving the opinion of the court, Lord Mansfield said:
"'The state of slavery is of such a nature that it is incapable of
being introduced on any reasons, moral or political, but only by
positive law, which preserves its force long after the reasons,
occasion, and time itself, from whence it was created, are erased
from the memory; it is of a nature that nothing can be suffered to
support it but positive law.'"
In relation to the connection between the Federal Government and
slavery, Judge McLean remarks:
"The only connection which the Federal Government holds with
slaves in a State, arises from that provision in the Constitution
which declares that 'No person held to service or labor in one
State, under the laws thereof, escaping into another, shall in
consequence of any law or regulation therein, be discharged from
such service or labor, but shall be delivered up, on claim of the
party to whom such service or labor may be due.'
"This being a fundamental law of the Federal Government, it rests
mainly for its execution, as has been held, on the judicial power
of the Union; and so far as the rendition of fugitives from labor
has become a subject of judicial action, the federal obligation
has been faithfully discharged.
"In the formation of the Federal Constitution, care was taken to
confer no power on the Federal Government to interfere with this
institution in the States. In the provisions respecting the slave
trade, in fixing the ratio of representation, and providing for
the reclamation of fugitives from labor, slaves were referred to
as persons, and in no other respect are they considered in the
Constitution.
"We need not refer to the mercenary spirit which introduced the
infamous traffic in slaves, to show the degradation of negro
slavery in our country. This system was imposed upon our colonial
settlements by the mother country, and it is due to truth to say
that the commercial colonies and States were chiefly engaged in
the traffic. But we know as a historical fact, that James Madison,
that great and good man, a leading member in the Federal
Convention, was solicitous to guard the language of that
instrument so as not to convey the idea that there could be
property in man.
"I prefer the lights of Madison, Hamilton, and Jay, as a means of
construing the Constitution in all its bearings, rather than to
look behind that period, into a traffic which is now declared to
be piracy, and punished with death by Christian nations. I do not
like to draw the sources of our domestic relations from so dark a
ground. Our independence was a great epoch in the history of
freedom; and while I admit the Government was not made especially
for the colored race, yet many of them were citizens of the New
England States, and exercised the rights of suffrage when the
Constitution was adopted, and it was not doubted by any
intelligent person that its tendencies would greatly ameliorate
their condition.
"Many of the States, on the adoption of the Constitution, or
shortly afterward, took measures to abolish slavery within their
respective jurisdictions; and it is a well-known fact that a
belief was cherished by the leading men, South as well as North,
that the institution of slavery would gradually decline, until it
would become extinct. The increased value of slave labor, in the
culture of cotton and sugar, prevented the realization of this
expectation. Like all other communities and States, the South were
influenced by what they considered to be their own interests.
"But if we are to turn our attention to the dark ages of the
world, why confine our view to colored slavery? On the same
principles, white men were made slaves. All slavery has its origin
in power, and is against right."
In reference to the power of Congress to prohibit slavery in the
territories, we quote the subjoined paragraphs from Judge McLean's
opinion:
"On the 13th of July, the ordinance of 1787 was passed, 'for the
government of the United States territory northwest of the river
Ohio,' with but one dissenting vote. This instrument provided
there should be organized in the territory not less than three nor
more than five States, designating their boundaries. It was passed
while the federal convention was in session, about two months
before the Constitution was adopted by the convention. The members
of the convention must therefore have been well acquainted with
the provisions of the ordinance. It provided for a temporary
government, as initiatory to the formation of State governments.
Slavery was prohibited in the territory.
"Can any one suppose that the eminent men of the federal
convention could have overlooked or neglected a matter so vitally
important to the country, in the organization of temporary
governments for the vast territory northwest of the river Ohio? In
the 3d section of the 4th article of the Constitution, they did
make provision for the admission of new States, the sale of the
public lands, and the temporary government of the territory.
Without a temporary government, new States could not have been
formed, nor could the public lands have been sold.
"If the 3d section were before us now for consideration for the
first time, under the facts stated, I could not hesitate to say
there was adequate legislative power given in it. The power to
make all needful rules and regulations is a power to legislate.
This no one will controvert, as Congress cannot make 'rules and
regulations,' except by legislation. But it is argued that the
word territory is used as synonymous with the word land; and that
the rules and regulations of Congress are limited to the
disposition of lands and other property belonging to the United
States. That this is not the true construction of the section
appears from the fact that in the first line of the section 'the
power to dispose of the public lands' is given expressly, and, in
addition, to make all needful rules and regulations. The power to
dispose of is complete in itself and requires nothing more. It
authorizes Congress to use the proper means within its discretion,
and any further provision for this purpose would be a useless
verbiage. As a composition the Constitution is remarkably free
from such a charge.
"The prohibition of slavery north of 36 deg. 30', and of the State of
Missouri, contained in the act admitting that State into the
Union, was passed by a vote of 134, in the House of
Representatives, to 42. Before Mr. Monroe signed the act, it was
submitted by him to his Cabinet, and they held the restriction of
slavery in a territory to be within the constitutional powers of
Congress. It would be singular, if, in 1804, Congress had the
power to prohibit the introduction of slaves in Orleans territory
from any other part of the Union, under the penalty of freedom to
the slave, if the same power embodied in the Missouri Compromise
could not be exercised in 1820.
"But this law of Congress, which prohibits slavery north of
Missouri and of 36 deg. 30', is declared to have been null and void by
my brethren. And this opinion is founded mainly, as I understand,
on the distinction drawn between the ordinance of 1787 and the
Missouri Compromise line. In what does the distinction consist?
The ordinance, it is said, was a compact entered into by the
confederated States before the adoption of the Constitution; and
that in the cession of territory, authority was given to establish
a territorial government.
"It is clear that the ordinance did not go into operation by
virtue of the authority of the confederation, but by reason of its
modification and adoption by Congress under the Constitution. It
seems to be supposed, in the opinion of the court, that the
articles of cession placed it on a different footing from
territories subsequently acquired. I am unable to perceive the
force of this distinction. That the ordinance was intended for the
government of the northwestern territory, and was limited to such
territory, is admitted. It was extended to southern territories,
with modifications by acts of Congress, and to some northern
territories. But the ordinance was made valid by the act of
Congress, and without such act could have been of no force. It
rested for its validity on the act of Congress, the same, in my
opinion, as the Missouri Compromise line.
"If Congress may establish a territorial government in the
exercise of its discretion, it is a clear principle that a court
cannot control that discretion. This being the case, I do not see
on what ground the act is held to be void. It did not purport to
forfeit property, or take it for public purposes. It only
prohibited slavery; in doing which, it followed the ordinance of
1787."
In 1840, Judge McLean lost his wife, and in 1843, married his present
wife, Mrs. Sara Bella Gerrard of Cincinnati. In his personal
appearance, Judge McLean is imposing, for he is tall and well
proportioned, and his face is one of the finest among the list of
American jurists. As a judge, he is above reproach; and as a
Christian--he is a member of a Christian church--he has won the
esteem of all who know him in that relation.
HENRY A. WISE.
Governor Wise is certainly one of the ablest of the southern
democrats. He may lack judgment and that balance of character which
is necessary in the truly great man; but he is a decided genius.
Whatever he has attempted he has accomplished, thus far, from his
wonderful energy and activity. Whether he has reached that bound
in his political triumphs beyond which he cannot pass, remains to
be seen. We will very briefly glance at his past history and his
present views upon the great political issues of the country.
Henry A. Wise was born in Drummond Town, Accomack County, Virginia,
December 3, 1806. He was a precocious lad, for he graduated at
Washington College, Pa., when he was but nineteen years old. He then
studied law, and was admitted to the bar of Winchester, Va., in 1828.
With a western fever in his bones, and desirous of a new field in a
new country, he emigrated to Nashville, Tennessee, where he practised
law for two years. He soon grew homesick for old Virginia, and
returned to Accomack County. The district showed its estimation of the
young man by returning him to Congress in 1833. He continued to
represent it in the House of Representatives for ten years. In 1843,
he resigned his place and took the mission to Brazil. He remained
there for a Presidential term. In 1848, he was a Presidential elector
in Virginia; in 1850, was a member of the Reform Convention which
adopted the present constitution of the State. In 1852, he was again a
Presidential elector, and in 1855 was nominated by his party as their
candidate for Governor. This caucus will always be remembered and will
give him unfading political laurels. The contest was probably one of
the most exciting, close, and bitter, which ever took place, even in
Virginia. The Know Nothings, or Americans, were then in the height of
power and were sanguine of success. Mr. Wise took the stump with the
prophets against him, and in fact with a general impression abroad
that he would be defeated. He carried on the year's canvass as no
other man beside Henry A. Wise could have done it. He bearded
Americanism in its den--forced it upon its own territory--and
triumphed in the popular vote by thousands. However rash and
extravagant his speeches were, he had that overwhelming enthusiasm and
vigor, which carried down all opposition, and placed him in the
Governor's chair.
As a politician, Governor Wise has always been true to the Virginian
school. Rigidly in favor of State rights, and as rigidly opposed to
protective tariffs--in short, bitterly anti-Whig in all his opinions.
On the slavery question, from the outset, he has been ultra
pro-slavery, though he was opposed to the Lecompton policy of Mr.
Buchanan's administration. He has favored internal improvements in
Virginia, and has in this respect differed from Mr. Hunter. This is
the bright feature in Governor Wise's political character. He never
was an old fogy, but is brimful of originality and reform. To see what
is Governor Wise's position on many of the issues of the day, we will
quote a few passages from his letter of January 3, 1859, to Hon. David
Hubbard: