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the United States. For, if it be true in one case, it is equally so in the other. Mr. Upshur was himself a local judge in Virginia; but history does not record the instance of his having referred to the General Assembly of that state, which passed the laws instituting his court, and which appointed him to the office, for its directions as to the extent of his judicial jurisdiction, although many perplexing cases of that kind must have occurred before him.
"The argument, so often repeated in Mr. Upshur's remarks, that because the constitution was a compact between the states, one with the other, each must possess the right to construe it for itself, is deemed a very dangerous fallacy. According to our ideas, every government is the result of a compact, express or implied, by those who submit to it. In the states then the citizens who are the parties to this compact must respectively have the same right to construe it for themselves, and in a clear case of judicial usurpation must have the right to nullify the decision.' Before admitting such consequences it will be well to test the soundness of the premises from which they flow. Now, as remarked in General Jackson's proclamation in 1832, it is precisely because it is a compact that the parties cannot depart from it. It is an agreement, a binding obligation, entered into for mutual benefit, and upon a mutual consideration between the respective parties, that they will respectively fulfil the obligations and perform the duties which it enjoins. Each party has an interest in its performance by the other, and therefore no party can withdraw from that performance without the consent of the others. To secure this performance, all the parties have agreed upon the creation of a distinct and independent tribunal to determine their controversies, not only with each other, but with the common or federal government, and have further agreed that such determination shall be final. That tribunal is not the agent or functionary of the federal government alone. Its members must be appointed with the advice and consent of a majority of the states, expressed by their representatives in the senate. They are the umpires chosen by the federal government and the states conjointly. The very first step which that tribunal must always take when a case is presented to it, is to inquire whether it be one of those that have been agreed on to be submitted to its determination. Now the pretence that one of the parties may under this agreement revise the decision of this tribunal, and decide for itself whether a given case was subject to its jurisdiction, is to nullify not only the decision but the agreement itself. But this it has no moral or political right to do. It would be a shameful violation of not only its faith, but an outrage upon all the other parties to the compact, which they would have the unquestionable right to resent and to punish. This then would immediately bring on a war. It is to avoid this very consequence that the tribunal created to decide these controversies is armed with power to enforce its decisions; and, fortunately, it operates not on states, but on individuals, on the citizens composing the people of the United States. If a state should, through its courts, imprison or otherwise punish an officer of the United States, for executing one of its laws, the persons committing the offence would be held responsible, and to enforce that responsibility the whole power, civil and military, of all the other states, would be put in requisition. Such are the guarantees of our constitution, and that they are effectual and will be called into action whenever occasion shall require, has already been proved in a case peculiarly calculated to test their value and strength.
"With these remarks Mr. Upshur's views on the doctrine of nullification are dismissed, although the subject is far from being exhausted. Many incidental matters have been purposely omitted, with the view of engaging atten tion to the one single point involved. It is hoped that it will at least appear that the constitution of the United States is not the miserable rope of sand which the nullifying doctrine would render it, and that we do not hold our
liberties, our rights, and our property, by the feeble tenure of the fitful caprice of a state exasperated into fury by faction, or overawed by combinations of powerful interests.
"I have no disposition to follow Mr. Upshur in his remarks upon that clause of the constitution which allows representation to three-fifths of the slaves. It is enough to say that it was one of the results of a compromise without which no constitution could have been formed. Whatever doubts of its justice or its expediency may be entertained, every good citizen will observe and obey it in its integrity.
"He also remarks upon the omission in the constitution to provide for removals from office. He might have noticed a hundred other omissions of details which necessarily flow from express provisions, or which are supplied by the usages of the country from which we borrow our language and so many of our legal and political institutions.
"He regards as a 'striking imperfection' in our constitution the existence of the veto-power, and adds the right to forbid the people to pass whatever laws they please, is the right to deprive them of self-government.' Can this be the view of a statesman, or even of a lawyer! The veto power, or the veto, does not forbid the people to pass what laws they please. How much more accurate and discriminating is the accomplished author of 'Democracy in America!' The veto is, as he represents it, an appeal to the people by a president, in defence of the independence which the constitution awards him. It is an appeal to the sober second thought of the representatives of the people, to re-consider the matter, and if two-thirds of both houses still believe the proposed bill to be just and constitutional, they may pass it notwithstanding the president's objections. It is a suspensive veto, not an absolute one, as in England; and without it the president would long since have been stripped of every valuable function of his office, or rendered utterly dependent on the Congress. In fifty-five years that have elapsed since the power was granted, it has not been exercised more than ten or twelve times; and in every instance but one its exercise has been sanctioned by the people.
"The re-eligibility of the president from term to term is also complained of by Mr. Upshur, and he thinks proper to add, 'Presidents are now made, not by the free suffrages of the people, but by party management.' But he has not intimated that the ineligibility of a president would have the least effect in preventing party management. A president has the same means of choosing his successor-nay, greater means than of promoting his own reelection; and we have not found less party management during the second term to which our presidents are limited by the unwritten law of public opinion, than during their first term, when they were candidates for re-election. It is obvious that exigencies may arise, such as a foreign war, which would require indispensably the continuance in power of an existing administration, that it might carry out a plan of measures it had devised. The opinion that ordinarily the same person should not serve more than once in the presidential office is becoming prevalent: and a sound public sentiment will doubtless regulate the matter as well, if not better, than it could be done by a positive provision of the constitution.
"In conclusion, I ask leave to express a deep regret that Mr. Upshur could have found nothing in the constitution of his country worthy of his commendation, and that his ingenuity should have been employed in attempting to prove it utterly defective, as the foundation of a government of laws, incapable of restraining the oppressions of powerful states, and of affording the shelter and protection which it promised to every citizen. If these remarks shall have the effect of dispelling such a reflection upon the wisdom of that distinguished body of men who calmly and deliberately weighed every sugges tion that sprang from their own minds, or was suggested to them by others;
who investigated most carefully the very peculiar condition of the states, and understood their various local interests; who had felt the defects of the confederation in seven years of war and six of peace; and invoking the blessing and aid of Divine Providence, devoted themselves to their task with a fidelity, patience, and forbearance which have been the admiration of the world, and finally produced the first written constitution of government that ever emanated direct from the people themselves-a constitution venerated by the intelligence of all Europe, and enshrined in the hearts of all patriotic Americans; if that constitution shall have been in any degree cleared of the mists with which a partial, theoretic, and heated imagination had invested it, I shall be thankful, and shall feel that neither my time nor the patience of the reader has been misspent.
"Albany, State of New York, June 14, 1845.
J. C. SPENCER."
THE ADDRESS OF THE SOUTHERN DELEGATES IN CONGRESS TO THEIR CONSTITUENTS.*
We, whose names are hereunto annexed, address you in discharge of what we believe to be a solemn duty, on the most important subject ever presented for your consideration. We allude to the conflict between the two great sections of the Union, growing out of a difference of feeling and opinion in reference to the relation existing between the two races, the European and the African, which inhabit the southern section, and the acts of aggression and encroachment to which it has led.
The conflict commenced not long after the acknowledgment of our independence, and has gradually increased until it has arrayed the great body of the North against the South on this most vital subject. In the progress of this conflict, aggression has followed aggression, and encroachment encroachment, until they have reached a point when a regard for your peace and safety will not permit us to remain longer silent. The object of this address is, to give you a clear, correct, but brief account of the whole series of aggressions and encroachments on your rights, with a statement of the dangers to which they expose you. Our object in making it is not to cause excitement, but to put you in full possession of all the facts and circumstances necessary to a full and just conception of a deep-seated disease, which threatens great danger to you and the whole body politic. We act on the impression, that in a popular government like ours, a true conception of the actual character and state of a disease is indispensable to effecting a cure.
We have made it a joint address, because we believe that the magnitude of the subject required that it should assume the most impressive and solemn form.
Not to go farther back, the difference of opinion and feeling in reference to the relation between the two races disclosed itself in the Convention that framed the Constitution, and constituted one of the greatest difficulties in forming it. After many efforts, it was overcome by a compromise, which provided in the first place, that representatives and direct taxes shall be apportioned among the States according to their respective numbers; and that, in ascertaining the number of each, five slaves shall be estimated as three. In the next, that slaves
* From the present position of political parties in the Union, the further agitation of the slavery question seems inevitable; certain leading politicians in the North and South are determined to bring the issue to a trial. Our readers will therefore desire to have for reference the manifestos and documents that state by authority the points and merits of the controversy on both sides. We shall give them as we have room.
escaping into States where slavery does not exist, shall not be discharged from servitude, but shall be delivered up on claim of the party to whom their labour or service is due. In the third place, that Congress shall not prohibit the importation of slaves before the year 1808; but a tax not exceeding ten dollars may be imposed on each imported. And finally, that no capitation or direct tax shall be laid, but in proportion to federal numbers; and that no amendment of the Constitution, prior to 1808, shall affect this provision, nor that relating to the importation of slaves.
So satisfactory were these provisions, that the second, relative to the delivering up of fugitive slaves, was adopted unanimously, and all the rest, except the third, relative to the importation of slaves until 1808, with almost equal unanimity. They recognise the existence of slavery, and make a specific provision for its protection where it was supposed to be the most exposed. They go farther, and incorporate it, as an important element, in determining the relative weight of the several States in the Government of the Union, and the respective burden they should bear in laying capitation and direct taxes. It was well understood at the time, that, without them the Constitution would not have been adopted by the Southern States, and, of course, that they constituted elements so essential to the system that it never would have existed without them. The Northern States, knowing all this, ratified the Constitution, thereby pledg ing their faith, in the most solemn manner, sacredly to observe them. How that faith has been kept, and that pledge redeemed, we shall next proceed to show.
With few exceptions of no great importance, the South had no cause to complain prior to the year 1819,-a year, it is to be feared, destined to mark a train of events, bringing with them many, and great, and fatal disasters, on the country and its institutions. With it commenced the agitating debate on the question of the admission of Missouri into the Union. We shall pass by for the present this question, and others of the same kind directly growing out of it, and shall proceed to consider the effect of that spirit of discord which it roused up between the two sections. It first disclosed itself in the North, by hostility to that portion of the Constitution which provides for the delivering up of fugitive slaves. In its progress it led to the adoption of hostile acts, intended to render it of noneffect, and with so much success that it may be regarded now as practically expunged from the Constitution. How this has been effected will be next explained.
After a careful examination, truth constrains us to say, that it has been by a clear and palpable evasion of the Constitution. It is impossible for any provision to be more free from ambiguity or doubt. It is in the following words:
"No person held to service, or labour, in one State, under the laws thereof, escaping into another State, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due."
All is clear. There is not an uncertain or equivocal word to be found in the whole provision. What shall not be done, and what shall be done, are fully and explicitly set forth. The former provides that the fugitive slave shall not be discharged from his servitude by any law or regulation of the State wherein he is found; and the latter, that he shall be delivered up on claim of his owner.
We do not deem it necessary to undertake to refute the sophistry and subterfuges by which so plain a provision of the Constitution has been evaded, and, in effect, annulled. It constitutes an essential part of the constitutional compact, and of course of the supreme law of the land. As such, it is binding on all the Federal and State Governments, the States and the individuals composing them. The sacred obligation of compact, and the solemn injunction of the supreme law, which legislators and judges, both Federal and State, are bound by oath to support, all unite to enforce its fulfilment, according to its plain meaning and true intent. What that meaning and intent are, there was no diversity of opinion in VOL. III. SEPT., 1849. 19
the better days of the Republic, prior to 1819. Congress, State Legislatures, State and Federal Judges, and Magistrates, and people, all spontaneously placed the same interpretation on it. During that period none interposed impediments in the way of the owner seeking to recover his fugitive slave; nor did any deny his right to have every proper facility to enforce his claim to have him delivered up. It was then nearly as easy to recover one found in a Northern State as one found in a neighbouring Southern State. But this has passed away, and the provision is defunct, except perhaps in two States.*
When we take into consideration the importance and clearness of this provision, the evasion by which it has been set aside may fairly be regarded as one of the most fatal blows ever received by the South and the Union. This cannot be more concisely and correctly stated than it has been by two of the learned judges of the Supreme Court of the United States. In one of his decisionst Judge Story said:
"Historically, it is well known that the object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves, as property, in every State of the Union, into which they might escape from the State wherein they were held in servitude."... "The full recognition of this right and title was indispensable to the security of this species of property in all the slaveholding States, and, indeed, was so vital to the preservation of their interests and institutions, that it cannot be doubted that it constituted a fundamental article, without the adoption of which the Union would not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or restricting, or abolishing the rights of the owners of slaves."
"The clause was therefore of the last importance to the safety and security of the Southern States, and could not be surrendered by them without endangering the whole property in slaves. The clause was accordingly adopted in the Con. stitution, by the unanimous consent of the framers of it, a proof at once of its intrinsic and practical necessity."
"The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no State law or regulation can in any way regulate, control, qualify, or restrain."
The opinion of the other learned judges was not less emphatic as to the impor tance of this provision and the unquestionable right of the South under it. Judge Baldwin, in charging the jury, said:‡
"If there are any rights of property which can be enforced-if one citizen have any rights of property which are inviolable under the protection of the supreme law of the State, and the Union, they are those which have been set at naught by some of these defendants. As the owner of property, which he had a perfect right to possess, protect, and take away,-as a citizen of a sister State, entitled to all the privileges and immunities of citizens of any other State,-Mr. Johnson stands before you on grounds which cannot be taken from under him— · it is the same ground on which the Government itself is based. If the defendants can be justified, we have no longer law or government."
Again, after referring more particularly to the provision for delivering up fugitive slaves, he said:
"Thus you see that the foundations of the Government are laid, and rest, on the right of property in slaves. The whole structure must fall by disturbing the
These are grave, and solemn, and admonitory words, from a high source.
* Indiana and Illinois.
The case of Prigg vs. the Commonwealth of Pennsylvania.
The case of Johnson vs. Tomkins and others.