A Report of the Debates and Proceedings in the Secret Sessions of the Conference Convention / For Proposing Amendments to the Constitution of the United States, Held at Washington, D.C., in February, A.D. 1861

by L. E. Chittenden

"A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime."

That is the text of the Constitution. What is the interpretation in the free States? In the State of Kentucky an African is property, under their laws and usages, and has been so for two hundred years; for it was so when it was a part of Virginia; and did it ever enter into the mind of man to conceive that this plain text of the Constitution would be resisted, upon the ground that property in man was not acknowledged? And yet it is done. If I am not mistaken, the honorable Senator from New York [Mr. Seward], not now in his seat, when Governor of New York, made that very question with the Governor of Virginia; and seeing this, are we to be willingly blind to this as the actual, judicial, and executive interpretation in every thing that affects the question of slavery as it stands in that section, and that, too, while we are seeking equality? Sir, it never entered into the mind of man, at the time this Constitution was formed, to credit that the time could ever come in the relations of these States when a man who fled from the State of Kentucky because he had stolen a negro into the State of Ohio, was screened from the operation of the Constitution, because in Ohio they do not deem a negro to be the subject of property; and yet that is the fact, the very issue now depending between those States; and we are asked to be blind, willingly blind, to all that experience at the very time we are attempting to secure a guarantee for violated rights!

Now, I said, Mr. President, that, if I were to tax my ingenuity, I might find a mode, even if the honorable Senator is right in ascribing to this clause of the section the necessary interpretation that it refers to remedies only. The Senator says the previous part of the section establishes the relation, as he construes it, not directly like the resolution of the honorable Senator which we offer here as an amendment, which establishes directly that there is property in slaves. This does not; but designedly avoids it; not from any improper motive—I do not ascribe that—but it is not only silent, but it avoids the very question. I suppose the honorable Senator is right in saying this language, judicial cognizance, according to the course of the common law, refers only to the remedy. Now, I tax my ingenuity to know how a court, in one of the free States, always leaning, of course, against slavery, would reason out that proposition, whether the remedy could be applied. Suppose an action of trover is brought. The inquiry would be, what is the remedy? We are told this is the remedy for which you are to apply to the law. A remedy is nothing in the world but a redress for wrong. Before you can apply the remedy, therefore, you must ascertain whether a wrong has been committed for which the remedy is adequate. Well, it comes from one side: the wrong was in taking the negro from the possession of the owner, against the local law of the Territory. The answer would be, "that may be true as far as the local law of the Territory is concerned; but here the Constitution adopts the common law as part of its text, and points the judges to the common law, and it applies the remedy." Now, the remedy is redress of the wrong, and we are bound to see that the wrong is one to which the remedy is applicable. The remedy is to recover property in the possession of one who is not entitled to it, and the common law, which applies that remedy to that wrong, says there is no wrong inflicted by taking the negro from the possession of his owner. It comes to that. It is suggested to me by the honorable Senator from Vermont [Mr. Collamer], that the common law, as a remedy, is one applicable to a common-law wrong. I do not say that the reasoning is just; I do not say that it is juridical; but I say, in our experience, we should be willingly blind if we take that for a security which will only be a snare.

Mr. PUGH:—Mr. President, it is very well known to the Senate that I prefer the proposition of the Senator from Kentucky, as a matter of individual choice, to the proposition which is proposed by the Peace Conference. Nevertheless, that Conference having been authorized, if not by Congress, at all events, so far as my State is concerned, by the act of her Legislature; and an overwhelming majority of the commissioners having agreed to this proposition as it stands, I shall hesitate very much in departing from it, whatever might be my individual opinion; but certainly if I thought the two Senators from Virginia had given it a correct interpretation, I should not agree to it. Now, as to this clause, it, in my judgment, had better have been omitted:

"The same shall be subject to judicial cognizance in the Federal courts, according to the course of the common law."

I suggest that the common law is referred to as fixing a right simply. The course of the common law is a phrase defined for more than two hundred years, in Latin, in English, and in Norman French. It means the formula of proceeding. I understood the Senator from Virginia [Mr. Mason] to say that it had been decided in several of the courts that an action of trover could not be brought for a negro slave in England. I think I am familiar with the case. It is reported in Salkeld's Reports, Lord Raymond's Reports, and in the Modern Reports—the same case reported three times; but the same court which decided that trover would not lie, because trover included the idea of property in the man himself, in the same opinion said that trespass on the case would lie for the loss of the service; so that it was all a question of pleading, and no question of right at all. It is within my recollection—and I believe the case was brought to the Supreme Court on a writ of error, and can be found in Howard's Reports—that a citizen of Kentucky declared in trespass on the case for taking away his slaves, and added two counts in trover. What is trover but an action of trespass on the case? Nothing more; and it never was any thing more. The measure of damages is the same in both actions—the value of the service of the servant; and yet that controversy on mere pleading—which, in nine-tenths of the States of this Union, has ceased to be of any value, because they have a code of procedure, is made a terrific objection here.

Now, sir, I have never read the code of New Mexico, and I do not propose to read it; but it is perfectly understood that that Territorial Legislature, pursuing the privilege, if you call it privilege, conferred by the compromise measures of 1850, has established the relation of master and slave, or master and servant, as perfectly as it is established in any of the fifteen so-called slaveholding States. I do not admire this word "status" which we find in the report of the Peace Conference; but as to the meaning of that word, I cannot be in any doubt. It does not refer to any persons in particular; it refers to a legal relation of servitude as between master and servant, and it provides that that relation, or condition, or status, shall not be changed; that for all wrongs or controversies arising out of that there shall be a remedy through the Federal judiciary.

I can see why the commission made this distinction. There have been many who have insisted that the Congress of the United States should pass laws for the protection of the right of the master to the services of his slave in a Territory; but it has always been my opinion, that the worst thing the slaveholding States ever could have would be to have that; for there would be a perpetual controversy here from session to session, and from day to day, whether the law went far enough in giving protection or went too far; and they would be remitting their right to the adjudication of the Senators and Representatives from the non-slaveholding States. Others have insisted, as the propositions of my honorable friend from Kentucky provided, that the relation should be protected by the legislation of the territorial authority. I would rather it were so, individually, if they chose to establish it. The peace commission do not want that. They evidently do not want to quarrel with the Territorial Legislatures about the measure of legislation; but they declare the right, and then say that this right shall be enforced in the Federal judiciary according to the course of remedies and forms of the common law. I do not see how there can be a doubt; and yet, as I have said, it seems to me that a great deal of it is unnecessary verbiage. I do not mean to debate that; I am not one of the peace commissioners; I am not to select my words to express the idea; but I am here; and my State with other States, having appointed commissioners in view of a crisis like this, as they esteem it, and as I esteem it, and they having agreed upon a great variety of propositions, some of which commend themselves to my judgment and some do not; but taking it altogether as one proposition, I am satisfied that I must either vote for all of it, or let all of it fall. I would rather vote for the proposition of my honorable friend from Kentucky. I said that sixty days ago; and I have said it in season and out of season. I have expressed my views frequently. I think the proposition of the commissioners would be better expressed, though it would come to the same thing, in these words: "in all the territory south of that line, it is hereby declared that no law or regulation shall ever be made or have any effect denying or impairing the right of the inhabitants to the service or labor of such persons as were held in that condition in any State of the Union; and thence taken into the said Territory." That would have expressed my idea more clearly, yet I am satisfied with this; it amounts to that. Whether the word "status" be good Latin or good English, the meaning is very clear.

I believe I admonished the Senate two hours ago that time was very precious; and I shall not detain them myself.

Mr. BAKER:—Mr. President, I mean to vote for the passage of these proposed amendments, just as they are, without any change; and I propose to give very briefly a few of the reasons which govern my judgment in that act. I will do it as pointedly as I can, and I will certainly do it very briefly.