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 repose. can "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 destruc tive 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 Virginis (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 disents. 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 at tempted 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 It is in the concluding senany where, and especially in a paper of such solemn import. tence: Against this conclusion we must now and for ever protest, as it is destructive of the safety and liberties of those whose equality of the States which we represent, and must lead, rights have been committed to our care, fatal to the peace and 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! It and a right to testify to it! and which is far above any other mode of asseveration. 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 immor- belonging to the series of novelties to which I tality in the name of one division of the Chris- have referred. I cannot help considering it as tian family. part of a system-as a link in a chain of mea"I have read to you from British history-sures all looking to one result, hypothetically, history of 1640-the most eventful in the Brit- to be sure, but all still looking to the same reish annals-to show the first attempt to intro- sult-that of a dissolution of the Union. It is duce a protest in the House of Commons-to afflicting enough to witness such things out of show you how the men of that day-men in doors; but to enter a solemn protest on our whose bosoms the love of liberty rose higher Journals, looking to the contingent dissolution than love of self-the Puritans whose sacrifices of the Union, and that for our own acts-for the for liberty were only equalled by their sacrifices acts of a majority-to call upon us of the mato their religion-these men, from whom we jority to receive our own indictment, and enter learned so much, refused to suffer themselves to it, without answer, upon our own Journals-is be arraigned by a minority-refused to suffer certainly going beyond all the other signs of the an indictment to be placed on their own Jour- times, and taking a most alarming step in the nals against themselves. I have shown you progress which seems to be making in leading that a body in which were such men as Hamp-to a dreadful catastrophe. 'Dissolution' to be den, and Cromwell, and Pym, and Sir Harry entered on our Journal! What would our anVane, would not allow themselves to be ar- cestors have thought of it? The paper conraigned by a minority, or to be impeached be- tains an enumeration of what it characterizes as fore the people, and that they sent the man to unconstitutional, unjust, and oppressive conduct the Tower who even asked leave to do it. This on the part of Congress against the South, period of British history is that of the civil which, if persisted in, must lead to a dissoluwars which deluged Great Britain with blood; tion of the Union, and names the admission of and, sir, may there be no analogy to it in our California as one of the worst of these measures. history-may there be no omen in this pro- I cannot consent to place that paper on our ceeding-nothing ominous in this attempted Journals. I protest against it-protest in the imitation of one of the scenes which preceded name of my constituents. I have made a stand the outbreak of civil war in Great Britain. Sir, against it. It took me by surprise; but my this protest is treated by some senators as a spirit rose and fought. I deem it my sacred harmless and innocent matter; but I cannot so duty to resist it-to resist the entrance upon consider it. It is a novelty, but a portentous our Journal of a paper hypothetically justifying one, and connects itself with other novelties, disunion. If defeated, and the paper goes on the equally portentous. The Senate must bear Journal, I still wish the present age and posterwith me for a moment. I have refrained hith-ity to see that it was not without a struggleerto 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 pro test. "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 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 February, '93, was a statute to carry into effect The third clear, and the first two of which exclusively Ir is of record proof that the anti-slavery clause of such judge or magistrate to give a certificate This act was passed on the recommendation of President Washington, in consequence of a case having arisen between Pennsylvania and Virginia, which showed the want of an act of Congress to carry the clause in the constitution into effect. It may be held to be a fair interpretation of the constitution, and by it the party claiming the service of the fugitive in any State or territory, had the right to seize his slave wherever he saw him, and to carry him before a judicial authority in the State; and One of the early acts of Congress, as early as upon affidavit, or oral testimony, showing his 1793 right, he was to receive a certificate to that effect, by virtue of which he might carry him back to the State from which he had fled. This act, thus fully recognizing the right of the claimant to seize his slave by mere virtue of ownership, and then to carry him out of the State upon a certificate, and without a trial, was passed as good as unanimously by the second Congress which sat under the constitution-the proceedings of the Senate showing no division, and in the House only seven voting against the bill, there being no separate vote on the two parts of it, and two of these seven from slave States (Virginia and Maryland). It does not appear to what part these seven objectedwhether to the fugitive slave sections, or those which applied to fugitives from justice. Such unanimity in its passage, by those who helped to make the constitution, was high evidence in its favor the conduct of the States, and both judiciaries, State and federal, were to the same effect. The act was continually enforced, and the courts decided that this right of the owner to seize his slave, was just as large in the free State to which he had fled as in the slave State from which he had run away-that he might seize, by night as well as by day, of Sundays as well as other days; and, also, in a house, provided no breach of the peace was committed. The penal section in the bill was clear and heavy, and went upon the ground of the absolute right of the master to seize his slave by his own authority wherever he saw him, and the criminality of any obstruction or resistance in the exercise of that right. It was in these words: "That any person who shall knowingly and 'wilfully obstruct or hinder such claimant, his agent or attorney, in so seizing or arresting such fugitive from 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 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 five hundred 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." though not bound to act under the law of Con gress, yet did so; and State jails, though not obligatory under a federal law, were freely used for the custody of the re-captured fugitive. This continued till a late day in most of the free States-in all of them until after the Congress of the United States engaged in the slavery agitation-and in the great State of Pennsylvania until the 20th of March, 1847: that is to say, until a month after the time that Mr. Calhoun brought into the Senate the slavery resolutions, stigmatized by Mr. Benton as "fire-brand," at the moment of their introduction, and which are since involving the Union in conflagration. Then Pennsylvania passed the act forbidding her judicial authorities to take cognizance of any fugitive slave case-granted a habeas corpus remedy to any fugitive arrested-denying the use of her jails to confine any one-and repealing the six months' slave sojourning law of 1780. Some years before the passage of this harsh act, and before the slavery agitation had commenced in Congress, to wit, 1826 (which was nine years before the commencement of the agitation), Pennsylvania had passed a most liberal law of her own, done upon the request of Maryland, to aid the recovery of fugitive slaves. It was entitled, "An act to give effect to the Constitution of the United States in reclaiming fugitives from justice." Such had been the just and generous conduct of Pennsylvania towards the slave States until up to the time of passing the harsh act of 1847. Her legal right to pass that act is admitted; her magistrates were not bound to act under the federal lawher jails were not liable to be used for federal purposes. The sojourning law of 1780 was her own, and she had a right to repeal it. But the whole act of '47 was the exercise of a mere right, against the comity which is due to States united under a common head, against moral and social duty, against high national policy, against the spirit in which the constitution was made, against her own previous conduct for sixty years; and injurious and irritating to the people of the slave States, and parts of it unconstitutional. The denial of the intervention of her judicial officers, and the use of her prisons, though an inconvenience, was not insurmount able, and might be remedied by Congress; the State officers, the magistrates and judges, repeal of the act of 1780 was the radical injury, |