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:

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:

with less.'

"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 'Against this conclusion we must now and for ever protest, British House of Lords in the beginning entered as it is destructive of the safety and liberties of those whose the protestor's name under the word dissent,' rights have been committed to our care, fatal to the peace and precisely as our names are entered here under if persisted in, to the dissolution of that confederacy in which equality of the States which we represent, and must lead, the word 'nay,' it went on until something very the slaveholding States have never sought more than an different took place, and which ended in author-equality, and in which they will not be content to remain izing any member who pleased to arraign the sense of the House, and to reproach the House "I grieve to see these words used with this whenever he pleased. Now, how came the deliberation; still more do I grieve to see an lords to possess this right? It is because application made to enter them on the Journal every lord is a power within himself. He is of the Senate. Hypothetically they use the his own constituent body. He represents him- words; but we all know what this word “if” self; and in virtue of that representation of is a great peacemaker, the poet tells us, behimself, he can constitute a representative, and tween individuals, but, as we all know, a most can give a proxy to any lord to vote for him on convenient introduction to a positive conclusion. any measure not judicial. Members of the The language here is used solemnly, and the House of Commons cannot do it, because they word protest is one of serious import. Protest are themselves nothing but proxies and repre- is a word known to the law, and always implies sentatives of the people. The House of Lords, authority, and one which is rarely used by inthen, who have this privilege and right of enter- dividuals at all. It is a word of grave and auing their dissent, have it by virtue of being thoritative import in the English language, themselves, each one, a power within himself, a which implies the testification of the truth! constituent body to himself, having inherent and a right to testify to it! and which is far rights which he derives from nobody, but which above any other mode of asseveration. belong to him by virtue of being a peer of comes from the Latin-testari, to be a witness the realm; and by virtue of that he enters his-protestari, to be a public witness, to publish, protest on the Journal, if he pleases. It is a avouch, and testify the truth; and can be only privilege belonging to every lord, each for him- used on legal or on the most solemn occasions. self, and is an absolute privilege; and although It has given a name to a great division of the the form is to ask leave of the House, yet the Christian family, who took the title from the House is bound to grant the leave." 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 science and duty. It was a proper occasion to a great act of protesting, and an act of conuse the word protest; and it was used in the face of power, and maintained through oceans

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.

เ

It

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 strugglenot 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."

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 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 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

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.

1

Ir 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

pre

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 apply

ing the same rights and remedies in each case: and of these two, the third alone contains the whole provision for reclaiming the fugitivethe 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:

pared 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 re- "That when a person held to labor in any of covery of slaves which should take refuge in that the United States, or in either of the territories territory. It was a compromise between the on the north-west, or south of Ohio, under the laws thereof, shall escape into any other of slave States and the free States, unanimously said States or territories, the person to whom agreed to by both parties, and founded on a valu- such labor is due, his agent or attorney, is hereable consideration-one preventing the spread by empowered to seize or arrest such fugitive of slavery over a vast extent of territory, the from labor, and to take him or her before any other retaining the right of property in the United States, residing or being within the judge of the circuit or district courts of the slaves which might flee to it. Simultaneously State, or before any magistrate of a county, with the adoption of this article in the ordi- city, or town corporate, wherein such seizure nance of 1787 was the formation of the consti- or arrest shall be made, and upon proof to the tution of the United States-both formed at by oral testimony, or affidavit taken before and satisfaction of such judge or magistrate, either the same time, in neighboring cities, and (it certified by a magistrate of any such State or may be said) by the same men. The Congress territory, that the person so seized and arrested, sat in New York-the Federal Convention in doth under the laws of the State or territory from which he or she fled, owe service to the Philadelphia—and, while the most active mem-person claiming him or her, it shall be the duty bers 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.

of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labor, to the State or territory from which he or she fled."

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

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 Con

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.

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,gress of the United States engaged in the 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 objected— whether 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 abso-fugitives from justice." Such had been the lute 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."

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

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 law

her 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,

and for which there was no remedy in federal will be given in the canvass for the governorship legislation. of the State, in the year 1838. In that year Mr. Marcy and Mr. Seward were the opposing candidates, and an anti-slavery meeting, held at Utica, passed a resolve to have them interrogated (among other things) on the point of repealing the slave sojournment act. Messrs. Gerritt Smith, and William Jay, were nominated a committee for that purpose, and fulfilled their mission so zealously as rather to overstate the terms of the act, using the word “importation" as applied to the coming of these slaves with their owners, thus: "Are you in favor of the repeal of the law which now authorizes the importation of slaves into this State, and their detention here as such for the time of nine months?" Objecting to the substitution of the term importation, and stating the act correctly, both the candidates answered fully in the negative, and with reasons for their opinion. The act was first quoted in its own terms, as follows:

That act was passed before the adoption of the constitution, and while the feelings of conciliation, good will, and entire justice, prevailed among the States; it was allowed to continue in force near sixty years after the constitution was made; and was a proof of good feeling towards all during that time. By the terms of this act, a discrimination was established between sojourners and permanent residents, and the element of time-the most obvious and easy of all arbiters-was taken for the rule of discrimination. Six months was the time allowed to discriminate a sojourner from a resident; and during that time the rights of the owner remained complete in his slave; after the lapse of that time, his ownership ceased. This six months was equally in favor of all persons; but there was a further and indefinite provision in favor of members of Congress, and of the federal government, all of whom, coming from slave States, were allowed to retain their ownership as long as their federal duties required them to remain in the State. Such an act was just and wise, and in accordance with the spirit of comity which should prevail among States formed into a Union, having a common general government, and reciprocating the rights of citizenship. It is to be deplored that any event ever arose to occasion the repeal of that

act. It is to be wished that a spirit would arise

to re-enact it; and that others of the free States should follow the example. For there were others, and several which had similar acts, and which have repealed them in like manner, as Pennsylvania-under the same unhappy influences, and with the same baleful consequences. New York, for example-her law of discrimination between the sojourner and the resident, being the same in principle, and still more liberal in detail, than that of Pennsylvania-allowing nine months instead of six, to determine that

character.

This act of New York, like that of Pennsylvania, continued undisturbed in the State, until the slavery agitation took root in Congress; and was even so well established in the good opinion of the people of that State, as late as thirteen years after the commencement of that agitation, as to be boldly sustained by the candidates for the highest offices. Of this an eminent instance

"Any person, not being an inhabitant of this State, who shall be travelling to or from, or passing through this State, may bring with him any person lawfully held by him in slavery, and but the person so held in slavery shall not remay take such person with him from this State; side or continue in this State more than nine months; and if such residence be continued beyond that time, such person shall be free."

then proceeds to give his opinion and reasons Replying to the interrogatory, Mr. Marcy

in favor of sustaining the act, which he does unreservedly :

"By comparing this law with your interrogatory, you will perceive at once that the latter implies much more than the former expresses. The discrepancy between them is so great, that I suspected, at first, that you had reference to some other enactment which had escaped general notice. As none, however, can be found but respect applicable, there will be no mistake, I the foregoing, to which the question is in any presume, in assuming it to be the one you had in view. The deviation, in putting the question, from what would seem to be the plain and obvious course of directing the attention to the particular law under consideration, by referring to it in the very terms in which it is expressed, or at least in language showing its objects and limitations, I do not impute to an intention to create an erroneous impression as to the law, or to ascribe to it a character of odiousness which it does not deserve; yet I think that it must be conceded that your question will in