A Report of the Debates and Proceedings in the Secret Sessions of the Conference Part 72

Mr. MASON:--The language of the section is, that neither Congress nor the Territorial Legislature shall interfere to impair the rights arising from this relation of master and slave; "but the same"--that is, this relation between master and slave--"shall be subject to judicial cognizance in the Federal courts, according to the course of the common law."

Now, the honorable Senator says that means only the remedy of the common law; that you are to take the law of the Territory, whatever it may be, and administer that, by confining it to the remedies known to the common law. I deny the interpretation. The Senator may be right, or I may be right. I say the text does not warrant the interpretation.

The text refers to the rights in the relation of master and slave, and says they (those rights) shall be the subject of judicial cognizance, according to the course of common law. Now, I ask, what is the common law that is thus made a part of the Const.i.tution for the subject to which it refers? Is it the law of England? There is no common law, that I am aware of, known to jurists as the law of England. There is no law in the State of Virginia, and, I presume, none in the State of Kentucky, known as common law. The State of Virginia, when it became independent as a colony of Great Britain, adopted and made its own that which before had been the common law of England, and therefore the common law of the colony. The State of Virginia (and I instance that only because I am familiar with it), when it became independent, adopted as its law the common law of England, as that common law stood at the commencement of the fourth year of James I.; and thereby, by statute, made that which had been the common law, the law of Virginia.

Now, it is the law of Virginia, not because it is the common law, but because statutes made it the law of Virginia. But is the common law of Virginia, if you will call it by that name, the common law of Kentucky; or is the common law of Kentucky the common law of Missouri; or is the law of those three States, or any other State, now the common law of England? I demand to know, therefore, when we make the common law a part of the Const.i.tution, if this enactment should prevail, what is meant by the common law? To that vague, grand residuum of judicial legislation we are to be remitted for our rights between master and slave, if this is enacted.

Now, sir, suppose it were so: my colleague has well said (and I will not repeat it after him, for I should only weaken it), that there is not one judicial interpreter or expounder of the common law, in any one of the free States, in reference to the relation of master and slave, that does not deny that the master has any property in his slave, at this day and this hour. Why, sir, what is the pending controversy between the State of Ohio, one of the free States, and the State of Kentucky, one of the slave States--a controversy depending here recently in the Supreme Court? The Governor of Kentucky demanded, under the Const.i.tution, the rendition of a fugitive from justice, who had abducted a slave from Kentucky, and carried him into Ohio. The Governor of Ohio refused the demand, upon the ground that there could be no stealing of a man; that there could be no property in man; and that the slave, being a man, was not a subject of theft, of larceny; and he refused, and refuses up to this day, under the common law, to recognize the existence of property in man.

Now, take the common law of England at this day: here, within the last three or four weeks, the Queen's Bench, in England, has declared as the common law, that if a slave murders his master, or murders the agent of his master, in the attempt to recapture him, he is justified.

That is the common law to which we are to be remitted for the rights resulting from the relations of master and slave. Sir, I have looked back a little to see what the common law was in England in this famous Somerset case, I find this in the argument of the counsel there, expounding the common law, which was afterwards sustained by Lord MANSFIELD in his decision:

"But it has been said by great authorities, though slavery, in its full extent, be incompatible with the natural rights of mankind, and the principles of good government, yet a moderate servitude may be tolerated, nay, sometimes must be maintained."

And again:

"There is now, at last, an attempt, and the first yet known, to introduce it [slavery] into England. Long and uninterrupted usage, from the origin of the common law, stands to oppose its revival."

And again:

"A new species has never arisen till now; for had it, remedies and powers there, would have been at law; therefore, the most violent presumption against it, is the silence of the laws, were there nothing more. It is very doubtful whether the laws of England will permit a man to bind himself by contract to serve for life; certainly will not suffer him to invest another man with despotism, nor prevent his own right to dispose of property."

And again:

"There are very few instances, few, indeed, of decisions as to slaves in this country. Two in Charles II., where it was adjudged trover would lie. Chamberlayne and Perrin, William III., trover brought for taking a negro slave; adjudged it would not lie. 4th Ann., action of trover; judgment by default. On arrest of judgment, resolved that trover would not lie. Such the determinations in all but two cases; and those the earliest, and disallowed by the subsequent decisions. Lord HOLT: 'As soon as a slave enters England he becomes free.'"

In the opinion of the court, of Lord MANSFIELD, as to these principles of common law, that very distinguished and able judge, who made the law, as I understand, for the occasion, but certainly ruled it as the common law, says this:

"The state of slavery is of such a nature that it is incapable of being introduced for any reasons, moral or political; but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory. It's so odious that nothing can be suffered to support it but positive law.

Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England."

I need not go back to authority. We have it abundantly in our own country, in all the free States, so far as I know, without exception.

They deny what the amendment of my honorable friend from Kentucky affirms. They deny that there is property in a slave. The amendment of the Senator affirms there is property in a slave. This section is silent, ominously silent, portentously and potentially silent. It is not only silent, Mr. President, but when it refers you to that code of law which is to protect the right of the master to the slave, it refers you to the common law, and the common law to be expounded by the Federal courts, and the common law, which is judicially and historically known to the whole country, to be expounded in all the free States as one that denies that very property which we say must be secured. That is our position under this section. Sir, the State of Virginia has said that we must have adequate guarantees; and I am asked here to vote away what little guarantees we have. I am asked, almost in the high ethics or morals of revealed religion, when my adversary takes away my cloak, that I shall give him my coat also. I am required to do that by this section. We believe that our rights are secured under the present Const.i.tution; we know that they have been withheld by the political party which has now come into power; we believe that they are insecure unless there are further and adequate guarantees; but, so far from their being proposed by the section before us, in my judgment, what little we have is taken away. Sir, I cannot vote for these propositions. I regret it. I was prepared, whether it had the approval of my judgment or not, to follow the instructions of my State, and to vote for the amendment offered by the honorable Senator from Kentucky after it had been modified, as was required by the resolutions of my State.

The amendment of the Senator from Kentucky was so modified, I do not know whether at the instance of Virginia or not; but it was modified by a vote of this Senate, so as to embrace what was required in the resolutions of Virginia. I am not at liberty to recommend, or, in the language of the Const.i.tution, to propose to the States this section of the thirteenth article; because it not only withholds, but denies by withholding, any security, far less that security which the State of Virginia requires.

There are further provisions in this proposition that are objectionable, one of which was pointed out by my colleague: that which calls upon Congress to legislate on that clause of the Const.i.tution which secures to the citizens of one State all the privileges and immunities of citizens of the several States. I need not say that any legislation on that subject by Congress would be any thing but the messenger of peace to which the honorable Senator from Kentucky looks. Why, sir, it has been found indispensable in slaveholding States, as a part of their police regulations, to punish all persons who were either of the State or otherwise, who tamper with the slaves, who have intercourse with them that is forbidden by law, far more those who preach to them sedition, or insurrection, or revolt; and yet, if we were to be controlled within the body of the State by Federal relations in our interior police, we should be completely at the mercy of the free States.

Mr. President, I should have been certainly gratified, if my honored State of Virginia had been successful in the mediation which she invited of all the States, with a view to agree upon an adjustment which would guaranty the rights of the South. I deeply deplore, and I doubt not my State will deplore, that that mediation has not been effected. So far from impugning any motives or purpose of that honorable and distinguished body, I doubt not that, in the short time that was allowed to them, they got together the best mode of adjustment which would satisfy their judgment, but which I am sure will not satisfy the judgment of the Southern States, but would place them in still greater peril, if they were to admit that to become a part of the Const.i.tution. I did not intend to do more than state my objections to it as briefly as I could. I have done so temperately and without heat, I regret that I cannot, as one Senator, propose this as an amendment to the Const.i.tution.

Mr. CRITTENDEN:--I wish only to reply for a single moment to the material objection urged by the Senator from Virginia. The portion of the article to which the Senator from Virginia objects, declares that the _status_ of persons bound to service and labor shall remain unchanged; that neither Congress nor the Territorial Legislature shall pa.s.s any law affecting the relation, or the rights growing out of the relation between master and servant--I do not pretend to recite the exact words; but that is the exact idea--well knowing that, according to the laws of the Territory, the _status_ of slavery was fully established, and all the rights of the master in and to his servant established, as they exist in the State of Missouri, or the State of Virginia, by positive law of the Territory. It is therefore equivalent to saying that that law shall stand, when it says that the _status_ shall continue unchanged. It then goes on to say (which I admit was altogether unnecessary) that the remedy for the violation of the rights of the master, whatever they might be, shall be had in the Federal courts, and according to the course of the common law. Now, sir, what right does this take away from any slaveholder? That law which secured and gave him a right, is declared to be unchangeable.

That law acknowledges his property in any sense in which you please to take it, or in any sense in which it is applicable. It acknowledges it, and gives legal remedies for the violation of it; and in addition to all that, and, as I admit, by a sort of pleonasm of expression, it says that he shall have his remedy in the Federal court, according to the course of the common law.

Mr. MASON:--Will the Senator allow me a moment?

Mr. CRITTENDEN:--Certainly.

Mr. MASON:--With the permission of the Senator I will put this proposition to him: He says that the meaning of the language, "according to the course of the common law," is confined to the remedy. Now, admitting that to be the case, for the sake of the argument, suppose, in one of these Territories, a slave is purloined, seduced, got away; the slave of A gets into the possession of B, and he is there at work for him upon his farm, or in his house, and A brings an action of trover to recover him; that is an action known to the common law; and the decision of the Federal court is, that trover lies only to recover property, and a slave is not property: what is the remedy? That is the decision in England; and I presume it would be the decision in the free States, if the suit were brought.

Mr. CRITTENDEN:--It was to avoid going into definitions of that sort that this language was employed in the amendments of the Convention.

They saw and had before them the law of New Mexico, which did acknowledge the existence of this right as fully as it is acknowledged by the law of Virginia. However it may be disputed here, however legal opinions may differ about it, the law of New Mexico established property in slaves; and there the law stands; and the Convention now comes and says that _status_ shall remain unchanged.

Mr. BRAGG:--Oh, no.

Mr. CRITTENDEN:--That is the resolution.

Mr. BRAGG:--Will the honorable Senator allow me a word, for I am very anxious to understand it?

Mr. CRITTENDEN:--Certainly.

Mr. BRAGG:--The Senator says it provides that that law, the law of New Mexico, whatever it may be, shall remain unchanged, if I understand him, and that that fixes the _status_ of slavery in the Territory. I call the attention of the Senator to the language. I think that only fixes the _status_ of persons now in the Territory, and not those to be carried there hereafter--not the _status_ of slavery, but the _status_ of persons who are there now, held to service or labor, and not the _status_ of those who are to be carried there in future. That is provided for in the language which it follows in another part.

Mr. CRITTENDEN:--Here it is, sir:

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

Which I have explained, and which gentlemen admit to be embraced in the Territory of New Mexico--

"the _status_ of persons held to involuntary service or labor, as it now exists."

It is not as to such slaves as are now there, but such slavery as now exists.

Mr. BRAGG:--If it said that, I admit that it would cover the _status_ of slavery.

Mr. CRITTENDEN:--It does say that. It seems to me that is the only construction that can be given to the language. It could not be intended to confine it to the twenty-six slaves that are now held there, especially when they provided, in a subsequent article, that it shall be lawful for any one to carry slaves there.

Mr. BRAGG:--Will the honorable Senator again allow me to interrupt him?

Mr. CRITTENDEN:--Certainly.

Mr. BRAGG:--I have not the slightest doubt that a great many who voted for the proposition consider it as the Senator does. I have equally as little doubt that others intended it to mean precisely what I have stated. I cannot see, for my life, while they were framing a const.i.tutional provision, why they did not place this matter beyond any sort of doubt. If they intended to recognize slavery, they could have said so in one word. If they intended not to recognize it, they could have said it in another word. If they intended to mystify and leave in doubt, then they have been very successful in accomplishing their purpose.

Mr. CRITTENDEN:--"In all the present territory south of that line, the _status_ of persons held to involuntary service or labor, as it now exists;" not as they now exist; not in respect to those that are there now; but part of the same sort of slavery which now exists, shall continue to exist unchanged until the Territory becomes a State; and in the mean time persons shall be admitted to go into that Territory and carry their slaves with them. Now, I submit it to my honorable friend if it is not entirely improbable that any such construction as he suggests can prevail before any court that seeks to attain the real intention of the parties who made this proposition? It is such slavery as now exists. Persons held to that service--you may carry as many there as you please. Put them both together, and they would read so; and they being in the same instrument, can there be a doubt that ought to alarm us here, that the construction will be given to it which I place upon it, that it was intended not to be confined merely to persons now there and held to servitude, but as well to those who might be carried there hereafter? This is all I will say in reference to that; and I submit it to the candor and the judgment of my honorable friend from North Carolina, in which I have entire confidence, whatever result he may come to, that if we put the two propositions together, all doubt would seem to be removed.

Now, sir, my friend from Virginia will argue this question as if the question of slavery was to be decided according to the course of the common law, and then refers us to the express declarations and decisions as though the common law decided that slavery could not exist. What sort of construction would that make of this provision?

Here they have provided that the law establishing slavery shall exist, that the property of the master in him shall be recognized as it is there established by law; and then the gentleman supposes that to be exactly contradictory, to refer to the common law as furnishing the rule of decision, which common law says there can be no property, as he interprets it, in man, and that when trover was brought for a slave--

Mr. MASON:--Not as I interpret it, but as interpreted in England.

Mr. CRITTENDEN:--I know that. He says it may be so interpreted; that when trover was brought for a slave in England, the judges decided there was no property in man. Could the same judges, sitting in a court in New Mexico, have given that decision when the law there established such property? In such a case, their decision must be different. They are referring, according to him, to two contradictory rules: one establishing slavery and acknowledging property in the master, and the other the common law denouncing and deciding against the right of property in man. This could not have been their intention, nor can this be the construction. We cannot consider these gentlemen to have changed their opinion from one sentence to another, to have left an incongruity and a contradiction expressed upon the face of the same section.

Nor, sir, do they refer--and that is my answer to my friend from Virginia--to the common law as furnishing the rule of decision at all.

The proceedings shall be according to the course of the common law; that is all. If any violation is done to the rights of the master, he may sue; and, for his greater security, he may sue in the Federal courts; and, for greater security still, the law shall be administered according to the course of the common law. The common law is referred to as determining the mode of trial. We say according to the course of the civil law, and we say according to the course of the common law.

What do we mean? We mean this marked and characteristic and essential difference: the course of the civil law is for the judge, without the intervention of a jury, to decide facts as well as the law. The common law takes away from the judge the power of deciding the facts, and demands a trial by jury. What this convention mean, therefore, by this provision is, that trial shall be by jury, according to the course of the common law. That is the explanation of the difficulty, and thus all doubt is removed. By these plain provisions--plain in themselves, and made plainer still by being taken with the context--they say you shall have your rule of right, according to the law of the Territory, which is in your favor as to the right to hold persons as property; that law shall be your security; you shall have a remedy for any violation of that right in the Federal courts, and you shall have that remedy, not according to the course of the civil law, in which the judge is to decide, who might be against you, but in which a jury shall be called to decide the fact according to the course of the common law. That is the whole of it.

Mr. MASON:--Mr. President--

Mr. POLK:--If the Senator will allow me, before the Senator from Kentucky sits down, I will ask him if the Mexican law establishes slavery, or if it does any thing more than to protect the right of the master to his slave? If that is the only establishment of it, then it is established by implication merely.

Mr. CRITTENDEN:--I really do not know whether the gentleman would consider it as establishing or merely protecting. I do not know that there is a law in any State of the Union that _eo nomine_ establishes slavery; I do not know.