There is another objection to any future claim of Texas to be divided into states, which grows out of her own neglect to fulfil the terms and spirit of the agreement. In the “territory north of the Missouri compromise line, slavery or involuntary servitude, (except for crime,) shall be prohibited.” So reads the bond. But if Texas suffer slavery to be extended over that part of her territory, then, when it becomes populous enough for admission, and is overspread with slavery, a new state may present a free constitution, be admitted by Congress, and before the slaves have time to escape, or to carry the question of freedom before the judicial tribunals, presto! this free constitution will be changed into a slave constitution, under the alleged right of a state to decide upon its own domestic institutions; and thus the word of promise, which was kept to the ear, will be broken to the hope. If Texas meant to abide by the resolutions of annexation, and to claim any thing under them, it was her clear and imperative duty forthwith to pass a law, securing freedom to every inhabitant north of the compromise line. In this way only can the resolutions be executed in their true spirit. That territory is now in the condition of an egg. It is undergoing incubation. From it a state is hereafter to be hatched; but before promising to accept the chick, it would be agreeable to know whether a viper had impregnated the egg.
There is a still further objection, of whose soundness I have no doubt; but should I be in error in regard to it, the mistake will not invalidate any other argument. The parties to that agreement stipulated on the ground of mutuality, without which all contracts are void. Some states were to be admitted to strengthen the hands of slavery, and some of freedom. A line of demarcation was drawn. Now, on investigation, I believe it will most conclusively appear that there is not an inch of Texan territory north of the stipulated line. It all belongs to New Mexico, as much as Nantucket or Berkshire belongs to Massachusetts. It was a mistake on the part of the contracting parties; if, on the part of Texas, it was not something worse than a mistake. The mutuality, then, fails. The contract is nudum pactum. Texas can give nothing for what she was to receive; and is, therefore, entitled to receive nothing but what she has got.
In regard to “the business of seeing that fugitives are delivered up,” Mr. Webster says, “My friend at the head of the judiciary committee, [Mr. Butler, of South Carolina,] has a bill on the subject now before the Senate, with some amendments to it, which I propose to support, with all its provisions, to the fullest extent.”
Here is Mr. Butler’s bill, with Mr. Mason’s amendments:—
A BILL
To provide for the more effectual execution of the 3d clause of the 2d section of the 4th article of the Constitution of the United States.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That when a person held to service or labor in any state or territory of the United States, under the laws of such state or territory, shall escape into any other of the said states or territories, the person to whom such service or labor may be due, his or her agent or attorney, is hereby empowered to seize or arrest such fugitive from service or labor, and take him or her before any judge of the circuit or district courts of the United States, or before any commissioner, or clerk of such courts, or marshal thereof, or any postmaster of the United States, or collector of the customs of the United States, residing or being within such state wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such judge, commissioner, clerk, marshal, postmaster, or collector, as the case may be, either by oral testimony or affidavit taken before and certified by any person authorized to administer an oath under the laws of the United States, or of any state, that the person so seized or arrested, under the laws of the state or territory from which he or she fled, owes service or labor to the person claiming him or her, it shall be the duty of such judge, commissioner, clerk, marshal, postmaster, or collector, to give a certificate thereof to such claimant, his or her agent or attorney, which certificate shall be a sufficient warrant for taking and removing such fugitive from service or labor to the state or territory from which he or she fled.
Sec. 2. And be it further enacted, That when a person held to service or labor, as mentioned in the first section of this act, shall escape from such service or labor, as therein mentioned, the person to whom such service or labor may be due, his or her agent or attorney, may apply to any one of the officers of the United States named in said section, other than a marshal of the United States, for a warrant to seize and arrest such fugitive, and upon affidavit being made before such officer, (each of whom for the purposes of this act is hereby authorized to administer an oath or affirmation,) by such claimant, his or her agent, that such person does, under the laws of the state or territory from which he or she fled, owe service or labor to such claimant, it shall be, and is hereby made, the duty of such officer, to and before whom such application and affidavit is made, to issue his warrant to any marshal of any of the courts of the United States to seize and arrest such alleged fugitive, and to bring him or her forthwith, or on a day to be named in such warrant, before the officer issuing such warrant, or either of the officers mentioned in said first section, except the marshal to whom the said warrant is directed, which said warrant or authority the said marshal is hereby authorized and directed in all things to obey.
Sect. 3. And be it further enacted, That upon affidavit made as aforesaid by the claimant of such fugitive, his agent or attorney, after such certificate has been issued, that he has reason to apprehend that such fugitive will be rescued by force from his or their possession, before he can be taken beyond the limits of the state in which the arrest is made, it shall be the duty of the officer making the arrest to retain such fugitive in his custody, and to remove him to the state whence he fled, and there to deliver him to said claimant, his agent or attorney. And to this end, the officer aforesaid is hereby authorized and required to employ so many persons as he may deem necessary to overcome such force, and to retain them in his service so long as circumstances may require. The said officer and his assistants, while so employed, to receive the same compensation and to be allowed the same expenses as are now allowed by law for transportation of criminals, to be certified by the judge of the district within which the arrest is made, and paid out of the treasury of the United States: Provided, That, before such charges are incurred, the claimant, his agent or attorney, shall secure to said officer payment of the same, and in case no actual force be opposed, then they shall be paid by such claimant, his agent or attorney.
Sec. 4. And be it further enacted, When a warrant shall have been issued by any of the officers under the second section of this act, and there shall be no marshal or deputy marshal within ten miles of the place where such warrant is issued, it shall be the duty of the officer issuing the same, at the request of the claimant, his agent or attorney, to appoint some fit and discreet person, who shall be willing to act as marshal, for the purpose of executing said warrant; and such person so appointed shall, to the extent of executing said warrant, and detaining and transporting the fugitive named therein, have all the power and authority, and be, with his assistants, entitled to the same compensation and expenses provided in this act in cases where the services are performed by the marshals of the courts.