Thirty Years' View (Vol. II of 2)

CHAPTER CXCVI.

THE ADMISSION OF THE STATE OF CALIFORNIA: PROTEST OF SOUTHERN SENATORS: REMARKS UPON IT BY MR. BENTON

This became the "test" question in the great slavery agitation which disturbed Congress and the Union, and as such was impressively presented by Mr. Calhoun in the last and most intensely considered speech of his life – read for him in the Senate by Mr. Mason of Virginia. In that speech, and at the conclusion of it, and as the resulting consequence of the whole of it, he said:

"It is time, senators, that there should be an open and manly avowal on all sides, as to what is intended to be done. If the question is not now settled, it is uncertain whether it ever can hereafter be; and we, as the representatives of the States of this Union, regarded as governments, should come to a distinct understanding as to our respective views, in order to ascertain whether the great questions at issue can be settled or not. If you, who represent the stronger portion, cannot agree to settle them on the broad principle of justice and duty, say so; and let the States we both represent agree to separate and part in peace. If you are unwilling that we should part in peace, tell us so, and we shall know what to do, when you reduce the question to submission or resistance. If you remain silent, you will compel us to infer by your acts what you intend. In that case, California will become the test question. If you admit her, under all the difficulties that oppose her admission, you compel us to infer that you intend to exclude us from the whole of the acquired territories, with the intention of destroying irretrievably the equilibrium between the two sections. We would be blind not to perceive, in that case, that your real objects are power and aggrandizement, and infatuated not to act accordingly."

Mr. Calhoun died before the bill for the admission of California was taken up: but his principles did not die with him: and the test question which he had proclaimed remained a legacy to his friends. As such they took it up, and cherished it. The bill was taken up in the Senate, and many motions made to amend, of which the most material was by Mr. Turney of Tennessee, to limit the southern boundary of the State to the latitude of 36° 30', and to extend the Missouri line through to the Pacific, so as to authorize the existence of slavery in all the territory south of that latitude. On this motion the yeas and nays were:

"Yeas – Messrs. Atchison, Badger, Barnwell, Bell, Berrien, Butler, Clemens, Davis of Mississippi, Dawson, Downs, Foote, Houston, Hunter, King, Mangum, Mason, Morton, Pearce, Pratt, Rusk, Sebastian, Soulé, Turney, and Yulee – 24.

"Nays – Messrs. Baldwin, Benton, Bradbury, Bright, Cass, Clarke, Cooper, Davis of Massachusetts, Dayton, Dickinson, Dodge of Wisconsin, Dodge of Iowa, Douglass, Ewing, Felch, Greene, Hale, Hamlin, Jones, Norris, Phelps, Seward, Shields, Smith, Spruance, Sturgeon, Underwood, Upham, Wales, Walker, Whitcomb, and Winthrop – 32."

The amendments having all been disposed of, the question was taken upon the passage of the bill, and resulted in its favor, 34 yeas to 18 nays. The vote was:

"Yeas – Messrs. Baldwin, Bell, Benton, Bradbury, Bright, Cass, Chase, Cooper, Davis of Massachusetts, Dickinson, Dodge of Wisconsin, Dodge of Iowa, Douglass, Ewing, Felch, Greene, Hale, Hamlin, Houston, Jones, Miller, Norris, Phelps, Seward, Shields, Smith, Spruance, Sturgeon, Underwood, Upham, Wales, Walker, Whitcomb, and Winthrop – 34.

"Nays – Messrs. Atchison, Barnwell, Berrien, Butler, Clemens, Davis of Mississippi, Dawson, Foote, Hunter, King, Mason, Morton, Pratt, Rusk, Sebastian, Soulé, Turney, and Yulee – 18."

Immediately upon the passage of the bill through the Senate, ten of the senators opposed to it offered a protest against it, which was read at the secretary's table, of which the leading points were these:

"We, the undersigned senators, deeply impressed with the importance of the occasion, and with a solemn sense of the responsibility under which we are acting, respectfully submit the following protest against the bill admitting California as a State into this Union, and request that it may be entered upon the Journal of the Senate. We feel that it is not enough to have resisted in debate alone a bill so fraught with mischief to the Union and the States which we represent, with all the resources of argument which we possessed; but that it is also due to ourselves, the people whose interest have been intrusted to our care, and to posterity, which even in its most distant generations may feel its consequences, to leave in whatever form may be most solemn and enduring, a memorial of the opposition which we have made to this measure, and of the reasons by which we have been governed, upon the pages of a journal which the constitution requires to be kept so long as the Senate may have an existence. We desire to place the reasons upon which we are willing to be judged by generations living and yet to come, for our opposition to a bill whose consequences may be so durable and portentous as to make it an object of deep interest to all who may come after us.

"We have dissented from this bill because it gives the sanction of law, and thus imparts validity to the unauthorized action of a portion of the inhabitants of California, by which an odious discrimination is made against the property of the fifteen slaveholding States of the Union, who are thus deprived of that position of equality which the constitution so manifestly designs, and which constitutes the only sure and stable foundation on which this Union can repose.

"Because the right of the slaveholding States to a common and equal enjoyment of the territory of the Union has been defeated by a system of measures which, without the authority of precedent, of law, or of the constitution, were manifestly contrived for that purpose, and which Congress must sanction and adopt, should this bill become a law.

"Because to vote for a bill passed under such circumstances would be to agree to a principle, which may exclude for ever hereafter, as it does now, the States which we represent from all enjoyment of the common territory of the Union; a principle which destroys the equal rights of their constituents, the equality of their States in the Confederacy, the equal dignity of those whom they represent as men and as citizens in the eye of the law, and their equal title to the protection of the government and the constitution.

"Because all the propositions have been rejected which have been made to obtain either a recognition of the rights of the slaveholding States to a common enjoyment of all the territory of the United States, or to a fair division of that territory between the slaveholding and non-slaveholding States of the Union – every effort having failed which has been made to obtain a fair division of the territory proposed to be brought in as the State of California.

"But, lastly, we dissent from this bill, and solemnly protest against its passage, because, in sanctioning measures so contrary to former precedent, to obvious policy, to the spirit and intent of the constitution of the United States, for the purpose of excluding the slaveholding States from the territory thus to be erected into a State, this government in effect declares, that the exclusion of slavery from the territory of the United States is an object so high and important as to justify a disregard not only of all the principles of sound policy, but also of the constitution itself. Against this conclusion we must now and for ever protest, as it is destructive of the safety and liberties of those whose rights have been committed to our care, fatal to the peace and equality of the States which we represent, and must lead, if persisted in, to the dissolution of that confederacy, in which the slaveholding States have never sought more than equality, and in which they will not be content to remain with less."

This protest was signed by Messrs. Mason and Hunter, senators from Virginia; Messrs. Butler and Barnwell, senators from South Carolina; Mr. Turney, senator from Tennessee; Mr. Pierre Soulé, senator from Louisiana; Mr. Jefferson Davis, senator from Mississippi; Mr. Atchison, senator from Missouri; and Messrs. Morton and Yulee, senators from Florida. It is remarkable that this protest is not on account of any power exercised by Congress over the subject of slavery in a territory, but for the non-exercise of such power, and especially for not extending the Missouri compromise line to the Pacific Ocean; and which non-extension of that line was then cause for the dissolution of the Union.

Mr. Winthrop, newly appointed senator from Massachusetts, in place of Mr. Webster, appointed Secretary of State, immediately raised the question of reception upon this protest, for the purpose of preventing it from going upon the Journal, where, he alleged, the only protest that could be entered by a senator (and that was a sufficient one) was his peremptory "no: " and then said:

"Sir, does my honorable friend from Virginia (Mr. Hunter), know that there is but one parliamentary body in the world – so far as my own knowledge, certainly, goes – which acknowledges an inherent right in its members to enter their protests upon the Journals? That body is the British House of Lords. It is the privilege of every peer, as I understand it, to enter upon the Journals his protest against any measure which may have been passed contrary to his own individual views or wishes. But what has been the practice in our own country? You, yourself, Mr. President, have read to us an authority upon this subject. It seems that in the earliest days of our history, when there may have been something more of a disposition than I hope prevails among us now, to copy the precedents of the British government, a rule was introduced into this body for the purpose of securing to the senators of the several States this privilege which belongs to the peers of the British Parliament. That proposition was negatived. I know not by what majority, for you did not read the record; I know not by whose votes; but that rule was rejected. It was thus declared in the early days of our history that this body should not be assimilated to the British House of Lords in this respect, however it may be in any other; and that individual senators should not be allowed this privilege which belongs to British peers, of spreading upon the Journals the reasons which may have influenced their votes."

Mr. Benton spoke against the reception of the protest, denying the right of senators to file any reasons upon the Journal for their vote; and said:

"In the British House of Lords, Mr. President, this right prevails, but not in the House of Commons; and I will show you before I have done that the attempt to introduce it into the House of Commons gave rise to altercation, well-nigh led to bloodshed on the floor of the House, and caused the member who attempted to introduce it, though he asked leave to do so, to be committed to the Tower for his presumption. And I will show that we begin the practice here at a point at which the British Parliament had arrived, long after they commenced the business of entering the dissents. It will be my business to show that, notwithstanding the British House of Lords in the beginning entered the protestor's name under the word 'dissent,' precisely as our names are entered here under the word 'nay,' it went on until something very different took place, and which ended in authorizing any member who pleased to arraign the sense of the House, and to reproach the House whenever he pleased. Now, how came the lords to possess this right? It is because every lord is a power within himself. He is his own constituent body. He represents himself; and in virtue of that representation of himself, he can constitute a representative, and can give a proxy to any lord to vote for him on any measure not judicial. Members of the House of Commons cannot do it, because they are themselves nothing but proxies and representatives of the people. The House of Lords, then, who have this privilege and right of entering their dissent, have it by virtue of being themselves, each one, a power within himself, a constituent body to himself, having inherent rights which he derives from nobody, but which belong to him by virtue of being a peer of the realm; and by virtue of that he enters his protest on the Journal, if he pleases. It is a privilege belonging to every lord, each for himself, and is an absolute privilege; and although the form is to ask leave of the House, yet the House is bound to grant the leave."

Mr. Benton showed that there was no right of protest in the members of the British House of Commons – that the only time it was attempted there was during the strifes of Charles the First with the Parliament, and by Mr. Hyde (afterwards Lord Clarendon), who was committed prisoner to the Tower for presuming to insult the House, by proposing to set up his judgment against the act of the House after the House had acted. Having spoken against the right of the senators to enter a protest on the Journal against an act of the Senate, Mr. Benton proceeded to speak against the protest itself, and especially the concluding part of it, in which a dissolution of the Union was hypothetically predicated upon the admission of California.

"I now pass over what relates to the body or matter of the protest, and come to the concluding sentence, where, sir, I see a word which I am sorry to see, or hear used even in the heat of debate in this chamber. It is one which I believe I have not pronounced this session, not even hypothetically or historically, in speaking of every thing which has taken place. But I find it here, and I am sorry to see it. It is qualified, it is true; yet I am sorry to see it any where, and especially in a paper of such solemn import. It is in the concluding sentence:

'Against this conclusion we must now and for ever protest, as it is destructive of the safety and liberties of those whose rights have been committed to our care, fatal to the peace and equality of the States which we represent, and must lead, if persisted in, to the dissolution of that confederacy in which the slaveholding States have never sought more than an equality, and in which they will not be content to remain with less.'

"I grieve to see these words used with this deliberation; still more do I grieve to see an application made to enter them on the Journal of the Senate. Hypothetically they use the words; but we all know what this word "if" is – a great peacemaker, the poet tells us, between individuals, but, as we all know, a most convenient introduction to a positive conclusion. The language here is used solemnly, and the word protest is one of serious import. Protest is a word known to the law, and always implies authority, and one which is rarely used by individuals at all. It is a word of grave and authoritative import in the English language, which implies the testification of the truth! and a right to testify to it! and which is far above any other mode of asseveration. It comes from the Latin – testari, to be a witness – protestari, to be a public witness, to publish, avouch, and testify the truth; and can be only used on legal or on the most solemn occasions. It has given a name to a great division of the Christian family, who took the title from the fact of their 'protesting' against the imperial edicts of Charles V., which put on a level with the Holy Scriptures the traditions of the church and the opinions of the commentators. It was a great act of protesting, and an act of conscience and duty. It was a proper occasion to use the word protest; and it was used in the face of power, and maintained through oceans and seas of blood, until it has found an immortality in the name of one division of the Christian family.

"I have read to you from British history – history of 1640 – the most eventful in the British annals – to show the first attempt to introduce a protest in the House of Commons – to show you how the men of that day – men in whose bosoms the love of liberty rose higher than love of self – the Puritans whose sacrifices for liberty were only equalled by their sacrifices to their religion – these men, from whom we learned so much, refused to suffer themselves to be arraigned by a minority – refused to suffer an indictment to be placed on their own Journals against themselves. I have shown you that a body in which were such men as Hampden, and Cromwell, and Pym, and Sir Harry Vane, would not allow themselves to be arraigned by a minority, or to be impeached before the people, and that they sent the man to the Tower who even asked leave to do it. This period of British history is that of the civil wars which deluged Great Britain with blood; and, sir, may there be no analogy to it in our history! – may there be no omen in this proceeding – nothing ominous in this attempted imitation of one of the scenes which preceded the outbreak of civil war in Great Britain. Sir, this protest is treated by some senators as a harmless and innocent matter; but I cannot so consider it. It is a novelty, but a portentous one, and connects itself with other novelties, equally portentous. The Senate must bear with me for a moment. I have refrained hitherto from alluding to the painful subject, and would not now do it if it was not brought forward in such a manner as to compel me. This is a novelty, and it connects itself with other novelties of a most important character. We have seen lately what we have never before seen in the history of the country – sectional meetings of members of Congress, sectional declarations by legislative bodies, sectional meetings of conventions, sectional establishment of a press here! and now the introduction of this protest, also sectional, and not only connecting itself in time and circumstances, but connecting itself by its arguments, by its facts, and by its conclusions, with all these sectional movements to which I have referred. It is a sectional protest.

"All of these sectional movements are based upon the hypothesis, that, if a certain state of things is continued, there is to be a dissolution of the Union. The Wilmot proviso, to be sure, is now dropped, or is not referred to in the protest. That cause of dissolution is dead; but the California bill comes in its place, and the system of measures of which it is said to be a part. Of these, the admission of California is now made the prominent, the salient point in that whole system, which hypothetically it is assumed may lead to a dissolution of the Union. Sir, I cannot help looking upon this protest as belonging to the series of novelties to which I have referred. I cannot help considering it as part of a system – as a link in a chain of measures all looking to one result, hypothetically, to be sure, but all still looking to the same result – that of a dissolution of the Union. It is afflicting enough to witness such things out of doors; but to enter a solemn protest on our Journals, looking to the contingent dissolution of the Union, and that for our own acts – for the acts of a majority – to call upon us of the majority to receive our own indictment, and enter it, without answer, upon our own Journals – is certainly going beyond all the other signs of the times, and taking a most alarming step in the progress which seems to be making in leading to a dreadful catastrophe. 'Dissolution' to be entered on our Journal! What would our ancestors have thought of it? The paper contains an enumeration of what it characterizes as unconstitutional, unjust, and oppressive conduct on the part of Congress against the South, which, if persisted in, must lead to a dissolution of the Union, and names the admission of California as one of the worst of these measures. I cannot consent to place that paper on our Journals. I protest against it – protest in the name of my constituents. I have made a stand against it. It took me by surprise; but my spirit rose and fought. I deem it my sacred duty to resist it – to resist the entrance upon our Journal of a paper hypothetically justifying disunion. If defeated, and the paper goes on the Journal, I still wish the present age and posterity to see that it was not without a struggle – not without a stand against the portentous measure – a stand which should mark one of those eras in the history of nations from which calamitous events flow."

The reception of the protest was refused, and the bill sent to the House of Representatives, and readily passed; and immediately receiving the approval of the President, the senators elect from California, who had been long waiting (Messrs. William M. Gwinn and John Charles Frémont), were admitted to their seats; but not without further and strenuous resistance. Their credentials being presented, Mr. Davis, of Mississippi, moved to refer them to the Committee on the Judiciary, to report on the law and the facts of the case; which motion led to a discussion, terminated by a call for the yeas and nays. The yeas were 12 in number; to wit: Messrs. Atchison, Barnwell, Berrien, Butler, Davis of Mississippi, Hunter, Mason, Morton, Pratt, Sebastian, Soulé, Turney. Only 12 voting for the reference, and 36 against it; the two senators elect were then sworn in, and took their seats.

CHAPTER CXCVII.

FUGITIVE SLAVES – ORDINANCE OF 1787: THE CONSTITUTION: ACT OF 1793: ACT OF 1850

It is of record proof that the anti-slavery clause in the ordinance of 1787, could not be passed until the fugitive slave recovery clause was added to it. That anti-slavery clause, first prepared in the Congress of the confederation by Mr. Jefferson in 1784, and rejected, remained rejected for three years – until 1787; when receiving the additional clause for the recovery of fugitives, it was unanimously passed. This is clear proof that the first clause, prohibiting slavery in the Northwest territory, could not be obtained without the second, authorizing the recovery of slaves which should take refuge in that territory. It was a compromise between the slave States and the free States, unanimously agreed to by both parties, and founded on a valuable consideration – one preventing the spread of slavery over a vast extent of territory, the other retaining the right of property in the slaves which might flee to it. Simultaneously with the adoption of this article in the ordinance of 1787 was the formation of the constitution of the United States – both formed at the same time, in neighboring cities, and (it may be said) by the same men. The Congress sat in New York – the Federal Convention in Philadelphia – and, while the most active members of both were members of each, as Madison and Hamilton, yet, from constant interchange of opinion, the members of both bodies may be assumed to have worked together for a common object. The right to recover fugitive slaves went into the constitution, as it went into the ordinance, simultaneously and unanimously; and it may be assumed upon the facts of the case, and all the evidence of the day, that the constitution, no more than the ordinance, could have been formed without the fugitive slave recovery clause contained in it. A right to recover slaves is not only authorized by the constitution, but it is a right without which there would have been no constitution, and also no anti-slavery ordinance.

One of the early acts of Congress, as early as February, '93, was a statute to carry into effect the clause in the constitution for the reclamation of fugitives from justice, and fugitives from labor; and that statute, made by the men who made the constitution, may be assumed to be the meaning of the constitution, as interpreted by men who had a right to know its meaning. That act consisted of four sections, all brief and clear, and the first two of which exclusively applied to fugitives from justice. The third and fourth applied to fugitives from labor, embracing apprentices as well as slaves, and applying the same rights and remedies in each case: and of these two, the third alone contains the whole provision for reclaiming the fugitive – the fourth merely containing penalties for the obstruction of that right. The third section, then, is the only one essential to the object of this chapter, and is in these words: