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there be a doubt, I say, that there would have been both Northern and Southern Senators, and Northern and Southern Representatives, who would have desired to avail themselves of an opportunity to place upon the record their protest against the annexation of Texas, at the time it was accomplished ?
I am unwilling to admit, Mr. President, that this is the first time in our history that an act has been consummated which renders such a protest justifiable or proper. I am unwilling to admit, that there has been no measure passed in the whole history of this Government, in opposition to which members of either branch were entitled, upon principles of courtesy, if courtesy only is to prevail here, to enter their names and their reasons upon the record.
Why, Sir, I remember the bill for the declaration of the Mexican war, or, I should rather say, for the recognition of the Mexican war, in which that memorable preamble was inserted, “whereas war exists by the act of Mexico," &c. That bill was passed with little or no debate; but, at the very moment of its passage in the other branch of Congress, I drew up a protest against that preamble. It is still extant, not indeed in “very choice Italian,” but in such chirography as I was able at the moment to command. It was signed by more than myself. It was signed by an honorable friend from Connecticut, (Mr. Truman Smith,) now a member of this body, and by an honorable member from Ohio, (Mr. Vinton.) But we found that neither precedent nor principle, as we thought, would sanction us in any attempt to place that protest upon the record, and we therefore forbore the attempt.
Now, Sir, for myself, I do not desire to add fuel to the flame, which seems almost ready to consume the country. I desire to do nothing, and to say nothing, to add to the irritation which exists on the other side of this chamber, and in certain quarters of the Union. I am willing even to acknowledge, and I do acknowledge, that there are considerations and circumstances connected with the admission of California, which are calculated to excite and irritate gentlemen from the Southern States. I would spare their feelings. But at the same time I would adhere, now and always, to those wholesome precedents, and I may add, to those established principles, which have heretofore governed us in these legislative bodies. I say those established principles, Sir, for I can hardly help regarding this as a question of principle. The Constitution calls upon us to do what? To keep a journal of our proceedings, in order that the people may be able to see what measures have passed, and who are responsible for those measures. Is this paper any part of our proceedings? The Constitution does not secure to a member the privilege of entering his reasons on the record, nor does it, in express terms, prohibit him from doing so. But is there not something of an implication to be derived from this express injunction of the Constitution, that we should keep a journal of our proceedings ? For, of what use will it be to keep such a journal, if the record of our proceedings is to be cumbered and complicated and smothered up by such a succession of protests as will inevitably succeed each other upon this, and upon other questions, if such a precedent shall now be established ? Where will the practice stop? Sir, if the question were merely to receive this paper, and treat it respectfully, as we treat petitions and memorials, it would gratify me to unite in assenting to such a course. But with the greatest possible respect for the Senators who have signed it, I cannot vote for its reception, if the question of reception involves also the question of entering it upon the journal.
THE FUGITIVE SLAVE LAW.
REMARKS IN THE SENATE OF THE UNITED STATES, AUGUST 19, 1850.
I HAPPEN to have on my table, at this moment, Mr. President, a little pamphlet, of which this is, I think, the second number, entitled, “ The United States Postal Guide," and which contains a paragraph which I would venture to recommend to the attention of the Senator from Virginia, (Mr. Mason.) It is in these words:
"FUGITIVE SLAVES. In an action brought in the United States District Court of the Southern District of Iowa, by Ruell Daggs, of Clark county, Missouri, plaintiff, against Elihu Frazier and four other defendants, for harboring, concealing, and preventing the arrest of plaintiff's slaves, who had absconded into Iowa, the jury found a verdict for the plaintiffs of $2,900.
“A similar trial had before Judge McLean, in the Circuit Court of the United States, by John Norris, of Kentucky, against eight residents of Michigan. The number of slaves was four, and the damages given by the jury $2,856."
Now, Sir, here we have the result of the latest judicial proceedings on the subject before us. Here we have a record of the most recent decisions which have taken place in two of the free States of this Union. And it seems to me that here is quite sufficient evidence to show that, whatever insurmountable obstacles there may be in a trial by jury to the recovery of the fugitive slaves themselves, there is no such insurmountable obstacle to the recovery of the most ample and exemplary damages against those who have aided in their escape. I think this will serve, to some extent, as an answer to the suggestions of the Senator from Virginia. It will prove, at any rate, that the South is not so entirely without remedy or redress for the wrongs of which she complains, even as the law now stands. For myself, Sir, without intending to detain the Senate at any length, I cannot help expressing my hearty concurrence in the amendment proposed by the Senator from New Jersey, (Mr. Dayton.) I understand that it is the same proposition which was laid on the table of the Senate, some weeks ago, by my distinguished predecessor in this seat, (Mr. Webster,) and which was prepared and proposed by him after a careful consultation with one of the judges of the Supreme Court, (Mr. Justice McLean,) whose decisions in cases of this kind have always, I believe, been satisfactory to the country.* I hold it to be a just and reasonable provision, and one which ought to form a part of any bill which shall be passed for this purpose. The Senator from Georgia seemed to go upon the idea that there is but one question to be decided with regard to a person claimed as a fugitive from labor; and that is the question whether he belongs to, or owes labor or service to the party who claims him. But it seems to me that there is another and a preliminary question, and that is, whether he is a fugitive at all; whether he belongs or owes service to anybody? It must always be a question whether such a person be your slave, or whether he be our freeman? Now, whether he be your slave might be a question very proper to be tried by a jury of the vicinage, and to be decided on the spot where the professed owner resides; but whether he be our freeman would seem to be a question which, upon the very same principle, should be tried where he is seized, and where the immediate liberty which he enjoys is about to be taken away from him.
MR. BUTLER. Will the Senator allow me to ask the question fairly, so as to put it before the country, whether the Senator knows of a single instance where a citizen has claimed a person as a slave who was not his own, or where one has so claimed a person while acting as an agent for the owner ?
MR. WINTHROP. Mr. President, if I understand aright the history of this very law of 1793, which we are now engaged in amending, I think the Senator from South Carolina will be answered if I briefly recite that history. As I understand the matter, that law originated on this wise. In the year 1788 or 1789, a free negro, residing in the State of Pennsylvania, named John, was kidnapped by three white men from the State of Virginia. These three white men were indicted for the crime; and as they had fled to the State of Virginia, they were demanded by Governor Mifflin, of Pennsylvania, under the instigation of the abolition society of that State, over which, if I mistake not, Benjamin Franklin about that time presided. The Governor of Virginia, whose name I do not remember,* decided that there was no law for carrying into effect that clause of the Federal Constitution just then going into operation, under which fugitives from justice were to be surrendered. He therefore refused to deliver up the three white men, indicted as having kidnapped a free negro. Governor Mifflin, soon after, communicated these facts to General Washington, then President of the United States, who communicated them to Congress, and upon this communication the law of 1793 was based. That law provides, first, for the return of fugitives from justice, and then for the return of fugitives from service or labor. And the brief history which I have thus given of its origin, will in some degree account for the fact, that these two incongruous matters are mingled together in the same bill.
* Webster's Works, Little & Brown's ed. 1851, vol. y. pp. 373, 374.
It seems then, Mr. President, that, at the very outset of the history of this Government, a case like that respecting which the Senator from South Carolina inquires, did actually occur, and that it gave occasion to the passage of the very statute which is now, for the first time, about to be amended. I cannot answer as to other cases. There may, or may not, have been others. It is said that they are not very likely to happen, and I admit that it is so. But as long as there is danger that they will occur, as long as there is a possibility that they may occur, so long will there be opposition to the seizure and abduction of supposed fugitives in the summary and irresponsible manner provided for in this bill. And this leads me, Sir, to say one word more. I believe, in all sincerity, that more fugitives from labor and service would be recaptured and recovered by their owners under a law providing for a trial by jury, than under the law of 1793, or under the law which the Senator from Virginia has now submitted to our consider
* Beverly Randolph.