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. 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:
'Against this conclusion we must now and for ever protest, as it is destructive of the safety and liberties of those whose rights have been committed to our care, fatal to the peace and equality of the States which we represent, and must lead, if persisted in, to the dissolution of that confederacy in which the slaveholding States have never sought more than an equality, and in which they will not be content to remain with less.'
"I grieve to see these words used with this deliberation; still more do I grieve to see an application made to enter them on the Journal of the Senate. Hypothetically they use the words; but we all know what this word "if" is—a great peacemaker, the poet tells us, between individuals, but, as we all know, a most convenient introduction to a positive conclusion. The language here is used solemnly, and the word protest is one of serious import. Protest is a word known to the law, and always implies authority, and one which is rarely used by individuals at all. It is a word of grave and authoritative import in the English language, which implies the testification of the truth! and a right to testify to it! and which is far above any other mode of asseveration. It comes from the Latin—testari, to be a witness—protestari, to be a public witness, to publish, avouch, and testify the truth; and can be only used on legal or on the most solemn occasions. It has given a name to a great division of the Christian family, who took the title from the 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 a great act of protesting, and an act of conscience and duty. It was a proper occasion to use the word protest; and it was used in the face of power, and maintained through oceans and seas of blood, until it has found an immortality in the name of one division of the Christian family.
"I have read to you from British history—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 protest.
"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 belonging to the series of novelties to which I have referred. I cannot help considering it as part of a system—as a link in a chain of measures all looking to one result, hypothetically, 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 struggle—not 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."
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.
[CHAPTER CXCVII.]
FUGITIVE SLAVES—ORDINANCE OF 1787: THE CONSTITUTION: ACT OF 1793: ACT OF 1850.
It 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 prepared 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 recovery of slaves which should take refuge in that territory. It was a compromise between the slave States and the free States, unanimously agreed to by both parties, and founded on a valuable consideration—one preventing the spread of slavery over a vast extent of territory, the other retaining the right of property in the slaves which might flee to it. Simultaneously with the adoption of this article in the ordinance of 1787 was the formation of the constitution of the United States—both formed at the same time, in neighboring cities, and (it may be said) by the same men. The Congress sat in New York—the Federal Convention in Philadelphia—and, while the most active members 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.
One of the early acts of Congress, as early as 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 applying the same rights and remedies in each case: and of these two, the third alone contains the whole provision for reclaiming the fugitive—the 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:
"That when a person held to labor in any of the United States, or in either of the territories on the north-west, or south of Ohio, under the laws thereof, shall escape into any other of said States or territories, the person to whom such labor is due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the State, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such judge or magistrate, either by oral testimony, or affidavit taken before and certified by a magistrate of any such State or territory, that the person so seized and arrested, doth under the laws of the State or territory from which he or she fled, owe service to the person claiming him or her, it shall be the duty 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."