250 



CONGRESS, U. S. 



of revolution, when we are in the midst of 

 war, it seems to me is carrying the matter too 

 far. It can only operate in favor of a very 

 few men comparatively in the State of Ken- 

 tucky. Maryland has already substantially or 

 soon will abolish slavery. Kentucky is the 

 only State not within the proclamation of the 

 President where this act could have any ef- 

 fect. There are portions of other States ex- 

 cluded from the proclamation ; but Kentucky is 

 the only State practically to be affected." 



Mr. Sumner said: "Then, Mr. President, I 

 understand that the Senator from Ohio has no 

 doubt that under the Constitution of the 

 United States a human being may be given over 

 to slavery without a trial by jury." 



Mr. Sherman replied: "1 will not go into 

 the discussion of that question. I only know 

 that that law has beer, upon the statute-book 

 almost since the foundation of the Government ; 

 that it was framed by the men who framed the 

 Government. The very men who passed that 

 law framed the Constitution. Under these cir- 

 cumstances, I will not pronounce it unconstitu- 

 tional." 



Mr. Sherman then moved to add at the end 

 of the bill the words " except the act approved 

 Feb. 12th, 1793, entitled, &c." 



Mr. Johnson, of Maryland, said: "The Con- 

 stitution as it is now, according to my inter- 

 pretation of it, not only authorizes the passage 

 of the act of 1793, and the passage of the act 

 of 1850, but made it the duty of Congress to 

 pass some law of that description. The hon- 

 crable member from Massachusetts is mistaken, 

 I think, in supposing that Mr. Justice Story 

 ever even doubted the constitutionality of the 

 act of 1793. 



"But, Mr. President, even if the act of 1850 

 or that of 1793, considered as original proposi- 

 tions, would now for a moment be maintained 

 to be unconstitutional, there is one question 

 which is perfectly plain under the adjudications 

 of the Supreme Court, and particularly in the 

 judgment pronounced by Mr. Justice Story, 

 that the Constitution itself is a fugitive slave 

 act. In the case of Prigg vs. the State of Penn- 

 sylvania, with which the Senate no doubt is 

 familiar, that court decided, the opinion being 

 given by Mr. Justice Story, that a master had 

 a right, without process and independent of any 

 legislation, national or State, to seize his slave 

 wherever he might find him, and return him 

 to slavery by taking him to the State in which 

 he resided, not only without being guilty of 

 any trespass, but in so doing he was in the full 

 discharge of what the Constitution gave him a 

 right to perform to recover his property. In 

 that particular, and because of that, there was 

 a difference of opinion between the members 

 of that court. The present Chief Justice of 

 the United States was of the opinion (in that 

 respect not agreeing with his colleagues of the 

 majority) that the obligation under the Consti- 

 tution was an obligation upon the States as 

 *ell as the United States. The majority of the 



court took the opposite view, that all Stata 

 legislation on the subject was illegal and wholly 

 inoperative. The Chief Justice, with one, I 

 think, or perhaps two members of the bench, 

 thought that the States had a right to pass laws 

 to effect the same purpose, and that so far as 

 they were not inconsistent with the laws which 

 Congress may have passed, they were to be con- 

 sidered as valid. 



" What practical good is to be the result of 

 this measure ? Will one single slave be returned 

 under these laws ? Does the honorable mem- 

 ber believe that a single slave will be returned 

 under them? The passage of this bill may 

 create some unpleasant feeling in that part of 

 the South which is sectionally loyal, and among 

 many in that part of the South which, though 

 sectionally disloyal, are themselves loyal. 



" The men who framed the Constitution, I 

 suppose, knew what the meaning of that Con- 

 stitution was just as well as my honorable friend 

 from Massachusetts can know, or as any mem- 

 ber of this body can know. The president of 

 the Convention by which it was framed no 

 friend of slavery, earnestly desiring, as we see 

 by his writings, its early extermination I sup- 

 pose is just as likely to have known what the 

 meaning of the Constitution was in this clause 

 at least, which more especially affected his own 

 region of country, as the honorable member 

 from Massachusetts. The men who passed the 

 act of 1793, most of whom had been members 

 of that Convention, were just as likely to know 

 what the Constitution is in this particular as 

 the honorable member from Massachusetts. If 

 he will look at the proceedings of each branch 

 of Congress when the act of 1793 was passed, 

 he will find that nobody ventured to breathe a 

 suspicion either that Congress had no authority 

 to pass it, or that it was not the duty of Con- 

 gress to pass it. The bill passed both branches 

 unanimously. 



" The courts of every State in the Union, and 

 every court of the United States, district or 

 supreme, that has been called upon to pass 

 judgment upon the constitutionality of the act 

 of 1793, has maintained its constitutionality. 

 During the whole series of years which have 

 elapsed from the passage of the act of 1793 up 

 to a comparatively recent day no member of 

 Congress suggested the repeal of that act, 

 either upon grounds of expediency or of un- 

 constitutional! ty; and no State in the Union by 

 any one of its departments of government ever 

 questioned publicly the validity of that act. 

 Eecently, I know, new views have been taken 

 on the subject. The Constitution recently, 

 first, construed with reference to the principles 

 to be found in the Declaration of Independence, 

 and secondly, construed by itself through very 

 many of the clauses which relate to personal 

 freedom, has been held to be so inconsistent 

 with slavery that an act of this description 

 cannot be maintained as valid. The honorable 

 Senator himself, in this report, if I remember 

 it correctly, takes the ground that tho clause ia 



