tion, with its overriding control over all the laws and institutions of Mexico inconsistent with it. The second was formally proposed in a bill to give governments to California, New Mexico, and Oregon, all lumped together in one conglomerate enactment, with a special provision to authorize the initiation of freedom proceedings in the two former by the slave against his master, either in a trial at law, or upon a writ of habeas corpus; with appeal to the Supreme Court. This bill passed the Senate, after a curious debate, of more import now than then, but was unceremoniously repulsed from the House without even the respect of a first reading-being tabled for ever the instant its advent was announced. It was a strange bill, and voted for by those who did vote for it, upon most contradictory reasons—some because they deemed it the best kind of a Wilmot proviso-some to gratify Mr. Calhoun, whose solicitude for it was excessivesome as for an absurdity which could not pass, and if it did, could have no operation, as no man would carry a negro free or bond, to California or New Mexico, just to try the question of freedom with him, with appeal to the Supreme Court—a trial in which the owner would be loser, whether he won or lost the suit. For the slave being entitled to his liberty while the suit was going on, would be free during that period, say seven years; and having no property, and subject to no process for costs or damages, the owner would merely get him back at the end of the suit-if he could catch him after seven years of free range from the shores of the Pacific to Washington City-minus the loss of his labor for the time, his court fees, and lawyers' fees, his personal expenses attending courts in California, and in the District of Columbia, and in his journeyings backwards and forwards all the while, and damage to his other neglected business-besides the degradation of being sued by his own negro, and dragged by him across the continent, and outshone by him in the splendor of his living and in liberality to his counsel (for the anti-slavery societies would supply him with bags of gold, while his poor master would be selling his stinted crops to get the means of carrying on the suit). With such shall be necessary, shall be appropriated to the trial of causes arising under the said Constitution and laws; and writs of error and appeals, in all such cases, shall be made to the Supreme Court of said Territory, the same as in other cases."-Section 24 of the Conglomerate bill. consequences before him, no man would carry his slave six thousand miles by water, and over free soil at Panama or Nicaragua, or three thousand miles over land and Indian country between the old States and the Pacific Ocean, just to begin that suit with him which the Senate's bill proposed. Yet the bill was the work of a Select Committee, eight in number, (being three more than the usual Senate committees,) including Mr. Calhoun, and a majority of his friends on the slavery question.* Mr. Badger, of North Carolina, saw in it a surrender of the rights of the South, and as effectual a bar to the introduction of slavery as the Wilmot proviso could have been. He said, “ He regarded this bill as a complete surrender of the rights of the South. He believed negro slavery would be as effectually excluded by this bill as if the Wilmot proviso, or any other bill, had passed.+" It was in the discussion on this bill that those remarks upon the probable decision of the Supreme Court were made which were quoted in the Introductory Note, and which foreshadowed the fate of any judges who should have to pronounce upon the question of African slavery, as a political question under our Constitution. The remarks and speculations ran right off to the geographical locus in quo of each judge! and when that could take place in the American Senate, and in anticipation of any decision, what might not be expected after an actual decision, and a strongly developed geographical line, in the line of division between different opinions? It was also in the same bill-the conglomerate for giving governments to three Territories together—that was placed that section, unobserved at the time, as mentioned in the Introduction to this Examination, which proposed to extend the Consti * They were :-Messrs. John M. Clayton, of Delaware; Bright, of Indiana; Calhoun, of South Carolina; Clarke, of Rhode Island; Atchison, of Missouri; Phelps, of Vermont; Dickenson, of New York; Underwood, of Kentucky. Of this committee, two of its members, Messrs. Clarke and Underwood, voted against the bill. Of course, the authors of the bill believed that a slave of the African race could maintain a suit in the United States Supreme Court. + Mr. Benton voted for it, (taking care to condemn it in his speech,) “to estop Mr. Calhoun," with a measure of his own-a Wilmot proviso of his own concoction. Certainly, no Wilmot ever devised so efficacious a measure for keeping slavery out of New Mexico and California, and Mr. Benton was perfectly willing that Mr. Calhoun should have that credit. . tution to Territories. It was in section 35 of the bill-that is to say, in the penultimate section of an enormous bill of 36 sections, where no one would look for a new principle, that this unprecedented novelty found its berth. Nothing but details and matters of form go to the end of the bill-its whole power and character being in a few of the front sections. Parliamentarily, nothing but formal details to carry out a principle can follow the principle, always put foremost. To these front sections the opponents of bills look; and fighting the battle upon these main sections, the details are left with the friends of the measure. They are considered matters of form, to carry out what the leading sections establish; and, in that point of view, are left to the committee who prepares the bill. This is the case in all bills, even those of considerable length, where the whole could be read in a reasonable time. How much more so in an enormous bill of six and thirty sections! and that upon as old a subject as territorial government, all the details of which had been a matter of course since the ordinance of 1787. Of such a bill it may well be conceived that none but those who drew it ever saw the concluding sections; and such I am able to say, upon the highest presumptive evidence, was the case with this conglomerate bill of 36 sections. That presumption is founded upon two facts: first, that no speaker for, or against the bill, ever alluded to it in a single word spoken! an absence of remark on such a new and startling provision which can only be accounted for upon the hypothesis of a total absence of all knowledge of its existence. Secondly, that I myself knew nothing of it! and so actually voted for a bill containing a novel provision, never heard of before-and of absurd impossibility. The section was in these words: SECTION 35. And be it further enacted, That the Constitution and laws of the United States are hereby extended over, and declared to be in force in said Territories of California and New Mexico, so far as the same, or any provision thereof, may be applicable." As the bill did not pass the House, this section, though it passed the Senate, became in fact as if it never had been; but it answers a purpose now, in showing that the framers of the bill then deemed an act of Congress necessary to extend the Constitution over Territories, and give it force and effect therein -the same as acts of Congress are so extended: with this incongruity, that the laws so extended being rules of action, are capable of operation; while the Constitution, being a collection of principles, can operate nowhere until these principles are vitalized by law and that can only be done by CongressCongress alone being the body which can legislate under the Constitution. So that, if the Constitution could be extended to a Territory, not a provision in it could take effect until Congress had passed an act to put it in operation. Nine months afterwards, that is to say, at the end of the ensuing session, (March 3d, 1849,) that attempt was made through Mr. Walker, of Wisconsin, to extend the Constitution to the three Territories in a lump, which has been noticed heretofore, and which being repulsed, the higher ground is taken that the Constitution goes of itself to Territories, carrying slavery along with it, in defiance of Congress and the people of the Territory. And this is what the Supreme Court has decidedthe judicial power deciding a political question! and in a way which the political power had twice repulsed.* * One good effect the decision of the Court has had, and that is the extermination of Squatter Sovereignty. It tears up that doctrine root and branch; and, it would seem, to the gratification of its votaries. For they rally to the Court's decision, and make adherence to it the test of democracy, with the same zeal with which they supported that doctrine during its brief day. Adherence to the What tests of democracy we have seen in three brief years! Missouri Compromise the test when Mr. Douglass brought in his until Mr. Dixon's proposed amendment started new game. Then destruction to the Compromise, and devotion to Squatter Sovereignty was the test. And this test continued for about two years, when it was exploded by the Supreme Court's decision. Then that decision becomes the test, and the democrat is politically excommunicated who does not change again—give up Squatter Sovereignty, as he did the Compromise ; and take the Constitution, per se, as sole slavery legislators in a territory, and only a one-sided legislation! to carry slavery into all territories, and abolish it in none! and keeping it, and protecting it, there in defiance of Congress, and the people, and in defiance of all laws previously existing there. And this to be done by virtue of a Constitution in which its framers would not permit the word "slave," or any equivalent phrase, to be used! CONCLUSION. This completes the historical view which I proposed to take of the Supreme Court's decision on the two points deemed political-1. The invalidation of the Missouri Compromise Act; 2. The self-extension of the Constitution to Territories, carrying African slavery along with it. And the result is, that the decisions conflict with the uniform action of all the departments of the Federal Government from its foundation to the present time, and cannot be received as rules to govern Congress and the people without reversing that action, and admitting the political supremacy of the Court, and accepting an altered Constitution from its hands, and taking a new and portentous point of departure in the working of the Government. These decisions being political, are dependent upon moral considerations for their effect. They cannot be enforced. No mandamus can be directed to Congress and the people: no process of contempt can issue against them. Influence-not authority—is the only power the Court can wield. This being the case, and the two conflicting powers, (that of two generations on one hand, and the Supreme Court on the other,) being reduced to moral considerations to establish the best title to supremacy, it becomes indispensable to run a comparison between their respective claims to superiority, and strike the balance on the side that shows the best title. This I propose to do, and to make the points of comparison co-extensive with the influencing considerations in the whole case 1. Numbers on each side. 2. Qualifications for forming a correct judgment. 3. Adaptation of times to calm consideration. 4. Freedom from connection with party contests. 5. Jurisdiction. 6. Unanimity, 7. Weight of reasons:-and of these, each in its order. |