in the legislative hall, those gentlemen who now oppose this amendment, would think it right to extend the right of trial by jury to all human beings; and if this convention think it is not in their power to do so, they ought to say so in the constitution. According to the doctrines taught on this floor, we must go back to the musty records of other times, and take up Lyttleton and Sir William Blackstone for our guides. He would prefer the common sense views of the young man from Butler and his young friend and colleague. If those who hold different opinions were honest, we should put into the constitution a provision to prevent any violation of the constitution of the United States, by the legislature of the state, because the legislature of 1826-7 did pass an act which was directly in the teeth of the constitution of the United States and the law of congress. If gentlemen pronounce the act of congress the paramount law of the land, then the act of assembly of 1826 was unconstitutional. If it was proper for the act of 1826 to go so far as it did in saying that a justice of the peace could not act without a judge; then another legisla ture could go still further. It was proper that the principle should be now settled. Would any gentleman say the time will not come when the principle will require to be settled. He held a different opinion, and he hoped one or the other of these principles would be inserted, in order that the legislature may hereafter have no difficulty. The gentlemen who voted yesterday may not be willing to have their names recorded to-day on this question. In the discussion which then took place, he thought there was great irrelevance. The gentleman from the county of Philadelphia (Mr. Ingersoll) was unnecessarily severe on a certain class of our citizens. He called abolitionists traitors to their country.

[Mr. INGERSOLL-I stand by it.]

I do not know them all (said Mr. DICKEY,) but I know many who, in regard to their character for patriotism would bear a comparison with the gentleman from the county, and yet who think slavery a damning sina blot on our escutcheon. They acted under the influence of this opinion, within the pale of their constitutional rights. They think that congress has the power to abolish slavery in the District of Columbia, and I think with them.

Mr. PURVIANCE modified his amendment so as to insert after the word "limb" in the sixth line, the following words, viz :-" Nor shall the trial by jury be denied by any judicial officer or tribunal of this commonwealth to persons who may be claimed as fugitives from labor, and who shall assert their right to freedom."

Mr. PURVIANCE said that so far as regards the arrest of citizens of this state, he believed the act of congress was unconstitutional. What are the provisions of the act? They authorize the arrest of a citizen without process of law. By the constitution no person can be arrested but by process of law. This provision applies as well to white citizens as to blacks, and under it white citizens may be arrested without a warrant. It is but a short time since that the question was raised by the gentleman from Allegheny that the taking evidence against a judge, when he was absent, was a crime entirely subversive of justice. What is this better than that case! Here is a man arrested and imprisoned on exparte evi

dence, which would perhaps be rejected by a judge, and on this evidence the liberty and life of the individual must depend. The man who is rendered infamous by the commission of a crime is entitled to his trial. while a slave is to be imprisoned and judged without the process of trial. He protested against this course of proceeding. The provision he now offered was that, on the assertion of his freedom by the person accused, he shall have the right of trial by jury. The judge shall then issue his venire. What is there in this to conflict with the constitution. The constitution only provides that the owner shall have a claim on his property. Well we say that on the mere claim the servant shall not be given up. There are various kinds of claims-good as well as bad. Some judicial tribunal of the country ought to prescribe what shall be the tribunal to pass on this claim, and of whom it shall be composed. He maintained that this was the right of the sovereign states themselves, and he presumed there was no Pennsylvanian who would dispute the position which he had taken.

Mr. WOODWARD here explained.

Mr. PURVIANCE expressed his satisfaction that the gentleman from Luzerne had explained away the remark which had excited in his (Mr. P's.) bosom feelings of some indignation.

A motion was made by Mr. StERIGERE,

That the convention do now adjourn.

And on the question,

Will the convention agree to the motion?

The yeas and nays were required by Mr. INGERSOLL and nineteen others, and are as follows, viz:

YEAS-Messrs. Agnew, Ayres, Baldwin, Barndollar, Biddle, Brown, of Lancaster, Chambers, Clark, of Dauphin, Cline, Cochran, Cope, Cox, Craig, Crain, Denny, Dickey, Dillinger, Earle, Fry, Hays, Henderson, of Allegheny, Hiester, Houpt, Jenks, Kerr, Koningmacher, Long, Maclay, M'Sherry, Merrill, Montgomery, Penny packer, Porter, of Lancaster, Russell, Scott, Serrill, Sterigere-37.

NAYS-Messrs. Banks, Bedford, Bigelow, Bonham, Brown, of Philadelphia, Clarke, of Indiana, Cleavinger, Crawford, Crum, Cummin, Curll, Darrah, Donegan, Doran, Fleming, Foulkrod, Fuller, Gamble, Gearhart, Gilmore, Grenell, Hayhurst, Helffenstein, High, Hyde, Ingersoll, Keim, Kennedy, Krebs, Lyons, Mann, Martin, M'Cahen, Merkel, Miller, Myers, Overfield, Payne, Riter, Ritter, Scheetz, Sellers, Shellito, Smith, of Columbia, Smyth, of Centre, Snively, Stickel, Sturdevant, Taggart, Thomas, Woodward, Porter, of Northampton-President pro tem.—52.

So the convention refused to adjourn.

Mr. PURVIANCE resumed.

Mr. President-I was proceeding to show that this act of congress, so far at least as relates to some of its provisions, is unconstitutional, because it is a provision of the constitution of the United States, that no man shall be arrested but by due process of law. I do contend that until the question has been determined beyond all doubt, that the fugitive is a slave, and, therefore, that he is subject to arrest, the provision of this act is in contravention to the provision of the constitution of the United States.

Take, for instance, the case of a white apprentice arrested by his master without process of law-suppose his master even touching him

upon the shoulder, as an officer would do with process and what would become of the provision in the constitution of the United States, which declares that no person "shall be deprived of life, liberty or property, without due process of law." There is also in the constitution of your own state, a provision which declares that no man shall be deprived of his life, liberty or property, but by due process of law. And I ask gentlemen who are about to vote on this proposition to say in what manner they dispose of the provision in the constitution of the United States, when they declare that a master from an adjoining state may arrest a person claimed by him, or any other man, without due process of law? I say that the provision of the act of congress is, to this extent, in conflict with the provision in the constitution of the United States, and that to this extent it it is unconstitutional.

I will beg leave to refer gentlemen for a single moment to a paper which I hold in my hand and which has been laid on the table of all the members of the convention, under the title of "facts for the people." This is the same paper which has been animadverted upon so severely by the gentleman from Luzerne, (Mr. Woodward) in some remarks made by him very recently in relation to the question now before us. I must call the attention of that gentleman to a very prominent fact, to which for some cause or other he omitted to advert-that is to say, that in the state of New York-the empire state-from whence came the present president of the United States, and Mr. Butler, the present attorney general of the United States-it has been declared, by Mr. Butler, that the provisions of the act of congress of 1793, are unconstitutional; that is to say, he has declared that a fugitive slave is entitled to demand a trial by jury. What is this but to declare in the strongest terms possible that the act of congress is unconstitutional ? I refer gentlemen to the opinion of Mr. Butler, and I ask whether this is not one of the facts which are deserving of attention from us.

I read from the paper before us the following extract :—

1

"The position taken by New York is the most prominent. The provisions of her laws upon the subject are to be found in the Revised Statutes of that state-(part iii., chapter 9, sections 6 to 20 inclusive.) These provisions assume, as a right in the state government, the power to regulate the whole process and proceedings, by which persons claimed as fugitive slaves shall be delivered up and the claim substantiated and many of them are in direct contradiction of the power of congress.

"They are, substantially, that such fugitives shall be arrested only upon habeas corpus, founded in the first instance upon proof; and upon the return, a trial is to be had before the judge, who is, however, first to give reasonable time to both parties to produce their proofs.

"If, on the final hearing, the claim of the person on whose suggestion the writ was issued, and the slavery of the supposed fugitive are substantiated, then judgment of return is to be rendered-if otherwise, the claimant is to pay one hundred dollars penalty, besides damages and And the supposed fugitive has a right, if he prefers it, to have his writ de homine replegiando, and his trial by jury under it, notwithstand

costs.

ing the habeas corpus, and all magistrates are forbidden to grant process or certificate, except as thus provided, under a penalty of five hundred dollars. The fact that these provisions were recommended by John Duer, Benjamin F. Butler,-the attorney general of the United Statesand John C. Spencer, who were the committee of revision, certainly entitle them to respect, if they do not invest them with any thing like authority." This, continued Mr. P., is the opinion of the attorney general of the United States.

But gentlemen say that this act of congress is constitutional, because it is only carrying out the principle embraced in the clause of the constitution which has reference to fugitive slaves. Now, I say that without the consent of the states it is a dead letter and nugatory in its effect. Of what effect was the act of congress locating the Cumberland road? What power had congress over the Cumberland road, except by the consent of the states through which that road was to pass? And was not that a constitutional provision before congress for years? Did not the advocates of state rights contend that congress had no power under the constitution of the United States, to invade the territory of a sovereign state? and here the constitution declares that upon a claim of property, that property shall be delivered up, but it has no right to say in what manner the claim shall be adjudged. The power belongs to the sovereign state, and my amendment states that the judge before whom the person claimed as a fugitive may be brought shall not deny the trial by jury, if a demand to that effect shall be made.

Mr. President, there are some other points to which it was my desire briefly to have adverted. But as I perceive that there is scarcely a quorum present, I will not detain the convention further.

Mr. SCOTT said that he had already given his vote upon this subject, on an amendment which had heretofore been offered by his colleague from the city of Philadelphia (Mr. Biddle) to the same effect as that now before the convention; and that being again called up to record his name on the proposition of the gentleman frem Butler, (Mr. Purviance) he felt desirous to assign his reasons for the vote he had already given, as well as for that which he was now about to give.

I am the more anxious to do this, continued Mr. S., because I think that professional men are especially bound to declare the motives which induce them to give a vote which is in opposition to the sentiments of so large a portion of the members of this body. Anxious as I am, however, to give this explanation, I feel unwilling to enter upon it at a time when not more than one half of the members of the convention are in their places. If my friends will indulge me, by allowing me to defer stating my views until the afternoon, when we may expect a much more full attendance of the members, I shall feel obliged, and will promise them that I will not unnecessarily consume a moment of their time. I move that the convention do now adjourn.

And, the question having been taken, the motion was rejected ayes 26, noes not counted.

So the convention refused to adjourn.

Mr. ScoTT resumed.

I am sorry to trespass on the patience of the convention at such a time, and under circumstances so unfavorable.

The principle contained in the amendment of the gentleman from Butler (Mr. Purviance) is, I believe, one which will meet with the cordial assent, in his heert, of every member of this body. I do not believe that amongst any of the several classes of men who compose this body, there can be found a solitary individual who would not cheerfully give his vote in favor of a proposition the object of which is to secure the right of trial by jury to every individual whose freedom is at stake on the issue of the question to be settled. I do conscientiously believe of all the members of this convention, without exception or qualification, that where they see a human being struggling for the preservation of his freedom-where they see a human being struggling for that most precious of all things on earth-his personal liberty-if they felt themselves at liberty to consult the dictates of their own hearts-they would say that the benefit of trial by jury should be extended to him. I must repeat, for the third and last time, that I do not believe there exists in this body one single individual who can object in his heart, or does object in his intelligence to the establishment of this principle here, and every where.

But there are amongst our number many gentlemen who think that they find an obstacle against giving a vote for this principle in the provisions of the constitution of the United States. Allow me here to say, that, carrying out that argument to the fullest extent, it is confessed by every gentleman who has spoken on this question, to be a debateable point whether the constitution of the United States and the laws under it, do or not render it unwise and improper to adopt this principle in the constitution of your state. No gentleman has yet pretended to say that the constitutionality of the act of Congress, passed the 12th of February, 1793, has been put beyond all dispute. On the contrary, all have admitted that it has been disputed; all have admitted that the constitutionality of the act has been denied, and that able judicial opinions have been given on both sides of the question.

Where then do we stand? If it shall hereafter be settled that the act of 1793 is a constitutional act-if it shall hereafter be settled by the supreme court of the United States that the act does not in any degree teach upon the constitutional provision, what evil will have resulted to the commonwealth of Pennsylvania from the adoption of an amendment embodying a principle adverse to that act of congress. What evil, I ask, will have resulted to the commonwealth, or to the United States, from our adoption of a principle adverse to the act of congress, even supposing the act to be sound in itself.

It has been said by gentlemen on the other side, and truly said, that the constitution of the United States and the laws made under it, are the supreme law of the land, and should be respected as such. No man yields a more willing asssent to the truth of that position than myself.

The CHAIR here interposed, and said he felt it to be his duty to announce to the convention the fact that a quorum of members was not present.

VOL. XII. C