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 PRIVATE CITIZEN'S PROPOSAL 
 
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 NORTHERN AND SOUTHERN STATES. 
 
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A PRIVATE CITIZEN'S PROPOSAL 
 
 FOR THE 
 
 SETTLEMENT OF ALL DIFFERENCES 
 
 BETWEEN THE 
 
 i;ort!jtnt aiiir ^aiitljcrii plates. 
 
 The day of declamation is past. It is high time that action 
 should take the place of words. Meetings with long lists of 
 distinguished names ; speeches, however eloquent and patri- 
 otic to audiences long ago convinced of the truth of every 
 word which falls from the lips of the orators ; resolutions re-as- 
 serting the adherence by the minority to political doctrines 
 the converse of those which have been affirmed by the ma- 
 jority in the recent election, and addresses assuring our 
 Southern brethren of what that minority would do if they 
 had the power which they have not, are but ill suited to the 
 present crisis. What is imperatively needed is a practical 
 solution of the difficulty, to the support of which the mode- 
 rate and conservative men of all parties can rally, and upon 
 which they can concentrate their strength, instead of fritter- 
 ing it away in discursive and never-ending argument and 
 recrimination. 
 
 This paper shall, as far as practicable, conform to the above 
 suggestions and confine itself to stating points, leaving to its 
 readers the opportunity and the task of filling up the argu- 
 ment, in support of or against, each text which it contains. 
 
 / 
 
2 
 
 "What characteristics should such a project unite within it- 
 self to the greatest possible extent? 
 
 1. The course of proceeding for the settlement of the diffi- 
 culty should be sought, if possible, within the Constitution 
 itself. 
 
 2. The object being to establish a rule for the government 
 of the country upon a subject as to which irrecoricileable 
 differences of opinion exist ; upon which public men have 
 committed themselves ; which were directly in issue in the 
 recent election ; and the one party having but just emerged 
 from that contest flushed with victory, and the other smarting 
 under defeat ; the mode of settlement should be such as to 
 humiliate neither, to require no mortifying concession of 
 wrong or mistake, to wound no one's self love, to save the 
 honor of all. 
 
 3. It should be such, that while members of Congress and 
 of State Legislatures feel convinced that they sacrifice no 
 constitutional right, but render good service to their country 
 in voting for it, the fear of being held to account by their 
 constituencies for a seeming abandonment of any portion of 
 the party creed, may not deter them, 
 
 4. It should be such as to still, in the shortest possible 
 time, the present angry tempest of agitation and excitement, 
 and remove the discussion at once from the arena of politics. 
 
 5. It should be the best adapted to arrive at the right and 
 the truth of the questions at issue. 
 
 C. It should be a final and lasting settlement, leaving no 
 loop-hole for the re-opening of the controversy, upon any of 
 the points now under discussion. 
 
 7. It should leave those who have recently made their ad- 
 vent to power to administer the government, should proscribe 
 
no one for his past political opinions, but should open the 
 door for the immediate reconstruction of parties upon the 
 basis of the Constitution, and of the final settlement of the 
 questions which, for the first time in our history, have un- 
 happily divided them by geographical lines. 
 
 8. It should be such, that if defeated on the floor of Con- 
 gress by the machinations of extreme party leaders on one 
 side or the other, or on both combined, an appeal may be 
 taken to the whole country with a confidence of success. 
 
 If such differences, aff'ecting their respective rights, existed 
 between individuals, an umpire or the courts of law would 
 have to decide between them. After the decision of an 
 appeal to the highest court, the defeated suitor might grumble 
 for awhile, and complain that the judgment ought to have been 
 the other way, but his mutterings of dissatisfaction would 
 become fainter and fainter, and he would be obliged to ac- 
 quiesce in the decision which barred further litigation. If it 
 were a quarrel between States not united by a federal com- 
 pact, and negotiation failed, and they could not agree to ar- 
 bitrate, an appeal to arms would be the only remedy. 
 
 The questions at issue between the States of this Union are 
 all questions of law, as to the construction to be given to the 
 Federal Constitution. They may be stated as follows: 
 
 1. Does the Constitution recognise slaves as property? 
 
 2. Does it confer the right of holding slaves in the territo- 
 ries? 
 
 3. Does it confer on Congress the power of legislating in 
 favor of or against slavery in the territories ? 
 
 4. Can the territorial legislatures, under the Constitution 
 of the United States, legislate on the subject of slavery? 
 
 5. Can Congress, under the Constitution, require, as a con- 
 
dition of admitting a State into the Union, that its Constitu- 
 tion should prohibit shavery ? 
 
 6. Has Congress any power, under the Constitution, to pro- 
 hibit or restrict the traffic in shaves between the several States 
 in the Union ? 
 
 7. What, if any, right of transit or sojourn, under the Con- 
 stitution of the United States, has a master with his slaves 
 through or in those States, which, by their Constitutions, do 
 not recognise slavery ? 
 
 8. Has Congress power, by the Constitution, to abolish 
 slavery in the District of Columbia, or in the forts, arsenals, 
 navy or dock yards of the United States? 
 
 9. Are the laws which have been passed in some of the 
 Northern States, imposing restrictions upon the execution of 
 the fugitive slave law repugnant to the Constitution of the 
 United States, and if so, which of them and to what extent? 
 
 ^5 
 
 10. Are the laws of any of the Southern States, subjecting 
 free negroes serving as mariners on board of vessels coming 
 from Northern States, to imprisonment while remaining in 
 tijeir ports, repugnant to the Constitution? 
 
 It is believed that this is a tolerably accurate summary of 
 the questions at issue, and from their statement it will be 
 geen how idle it is to suppose that they can be ever finally 
 disposed of by the votes of parties at the polls. No such 
 mode of settlement is authorized by the Constitution, and 
 however strong the majority adhering to the one construction 
 or the other which may be obtained by either party at any 
 given time, the other is at liberty to renew the struggle as 
 often as the opportunity presents itself, and to contend that 
 its rights are not concluded by the decision of its adversary 
 in its own favor. 
 
 Tiic Constitution has erected an arbiter within itself for the 
 
decision of all such questions, and it is not a little surprising 
 that neither the president, who in his recent message an- 
 nounced Iiis failure, after diligent search, to find any provi- 
 sion authorizing a portion of the States to make war on the 
 others, nor the thousands of readers of his message who ex. 
 claimed against the failure to find it, discovered the wise and 
 humane reason and purpose of the transparent and intentional 
 omission. 
 
 It is because the Constitution contains within itself such 
 full and ample provision for the redress of all grievances 
 which any of the States can sufi'er from the others, that while 
 due attention is paid to its provisions, no recourse to arras 
 can ever become necessary :— and as often as we consult that 
 sacred charter and bulwark of our liberties, it develops and 
 unfolds fresh evidences of the wisdom and far reaching sa- 
 gacity of its framers, which should make us hesitate long, be- 
 fore we change a single word of its provisions, lest in our 
 short sightedness we should mar the fitness and adaptation of 
 its several parts. 
 
 By the Constitution, original jurisdiction of all controver- 
 sies between States is conferred upon the Supremo Court of 
 the United States. It is believed that without any legislation 
 by Congress, any of the States could commence a suit at once 
 in the Supreme Court of the United States, making all the 
 others parties, and calling for a construction by the court of 
 the Constitution upon all the questions as to which controver- 
 sies now exist. We have become so accustomed to having 
 constitutional questions dragging their weary and toilsome 
 way along from some inferior tribunal in a remote county of 
 a State, in a suit between private citizens, up to the court of 
 final appeal, that we have almost forgotten that it was not 
 necessary, to say nothing of its being highly inimical to the 
 orderly and conclusive settlement of the questions involved, 
 that they should take that course. The records in such cases 
 are invariably made up in a very loose and inartificial man- 
 ner, and there will always be some loophole for the defeated 
 and dissatisfied party to say, that the question decided was not 
 fairly presented, and that the decision was obiter. Such has 
 
 1* 
 
6 
 
 been the excuse for not acquiescing in the Dred Scott deci- 
 sion ; and something similar will probably be alleged against 
 the conclusiveness of any decision which may be finally pro- 
 nounced in the Lemmon case, if it should reach the Supreme 
 Court. 
 
 Not so, however, in a suit originally commenced in the 
 court of ultimate resort, with States for suitors, and the first 
 intellects in the land as counsel, for a direct construction of 
 the provisions of the Constitution. 
 
 As the Constitution stands, congress has power to confer 
 upon the Supreme Court jurisdiction of any suit commenced 
 by the United States of America as plaintifi", but has not yet 
 exercised that power. The court, beyond a doubt, already 
 possesses the jurisdiction, by the Constitution itself, where 
 the defendant is a State. The federal government, under the 
 name of the United States of America, is the trustee and 
 agent of the several States, for the exercise of the powers 
 ceded by them by the Constitution. The commencement of 
 a suit by a trustee, under a deed or will, for the purpose of 
 obtaining a construction of the provisions of the instrument, 
 to guide him in the administration of the common property, 
 and making all the cestuis que trust parties, is a practice fa- 
 miliar to every law3^er. The Constitution, in this case, is the 
 deed of trust. The United States of America, in its corporate 
 capacity, is the trustee. The several States are the cestuis que 
 trust. 
 
 In addition to this, much dissatisfaction has been created by 
 the repeal of the Missouri Compromise, of 1820, and fears 
 have been openly expressed that cff'orts would be made by 
 the Southern States to re-open the slave trade. The Missouri 
 Compromise, as an act of Congress, has been adjudged to be 
 unconstitutional by the Supreme Court, and its repeal only 
 gave efl'ect to that decision, butitsreenactmeut as an amend- 
 ment to the Constitution, would be entirely valid. If the Su- 
 preme Court should now decide that slavery can have no legal 
 existence in the territories under the Constitution, the repeal 
 of that compromise would be a gain to the ITorthern States. 
 If, on the contrary, it should be decided that Congress has no 
 
constitutional power to legislate against slavery in the terri- 
 tories, the re-adoption of the former Missouri Compromise, as 
 an amendment to the Constitution, would be a concession by 
 the Southern States. It is therefore proposed, that they should 
 agree in advance to concede this in that event, and not ask 
 the converse concession of the admission of slavery south of 
 the compromise line from the l^orthern States, ii they Bhould 
 be adjudged to be right in their construction of the Constitu- 
 tion, and that they should also concede an amendment pro- 
 hibiting for ever the re-opening of the slave trade. 
 
 It is proposed, therefore, that Congress should pass an act 
 to the following effect : 
 
 An Act to facilitate the settlement of the controversies pend- 
 ing hetween the several States, through the exercise of the 
 jurisdiction corf erred ly the Constitution on the Supreme 
 Court of the United States^ and recommending certain 
 amendments to the Constitution : 
 
 Sec. 1. Be it enactedhy the Seriate and House of Represen- 
 tatives of the United States of America, in Congress assem- 
 Ued, That it shall be the duty of the Attorney-General of 
 the United States to commence, with the least practicable de- 
 lay, in the Supreme Court, a suit in the name and behalf of 
 the United States of America as plaintiff, and making all the 
 several States of the Union defendants, for the purpose of ob- 
 taining a construction of the Constitution of the United States, 
 upon all the questions in controversy between the several 
 States of the Union, or any two or more of them, arising out 
 of, or connected with, the existence of slavery or involuntary 
 servitude, within the United States, or any of the territories 
 thereof, and to prosecute the said suit to a final decision, with 
 all diligence and speed consistent with the due and orderly 
 conduct of the proceedings. 
 
 Sec. 2. And he it further enacted, That the Supreme Court 
 of the United Slates shall have original jurisdiction of such 
 suit commenced by the United States of America, and of all 
 other suits which may hereafter be brought by the United 
 
 ^ 
 
States of America as plaintiif, and in which any of the States 
 of the Union may be defendant. 
 
 Sec. 3. And he it further enacted, That it shall be the duty 
 of the Attorney-General to give immediate notice of the com- 
 mencement of such suit to the Governors of the several States, 
 in addition to the ordinary service of process, and to cause 
 the same to be accompanied by an aulhenticated copy of this 
 act ; and the several States of the Union are hereby invited 
 and earnestly recommended to make immediate }.)rovision for 
 their projjer representation in such suit, and to take such 
 measures as may conduce to its speedy determination, and, 
 by public and solemn act of their respective legishitures, to 
 pledge the faith of the States respectively, in advance, to 
 ratify the judgment of the court as amendments declaratory 
 of the construction of the Constitution upon the questions so 
 in controversy, except in so far as such judgment may declare 
 the invalidity of any State laws, and as to those, to repeal 
 any statutory provisions so declared invalid, and also to ratify 
 the amendment to the Constitution contingently recommended 
 by this act, upon the happening of the contingency contem- 
 plated, and also to ratify the other amendments to the Con- 
 stitution hereby recommended, upon receiving official notice 
 of the judgment of the court. 
 
 Sec. 4. And le it further enacted, That the Supreme Court 
 shall hold an extra session for the hearing of the said cause, 
 at such time as it may appoint for that purpose, and shall 
 have power to adjudicate, by its judgment, upon the proper 
 construction of the Constitution as to the powers and duties 
 of the general government, and of the territorial legislatures, 
 in connection with the whole subject of slavery or involuntary 
 servitude, and also upon the validity or invalidity of any of 
 the laws of any one or more of the several States, relating to 
 or connected with the subject of slavery or involuntary servi- 
 tude, or the rights accorded to, or restrictions imposed upon, 
 free persons of color within their respective limits, which, in 
 any of the pleadings filed on the part of any other State, may 
 
be alleged to be invalid, as being repugnant to the Constitu- 
 tion of the United States. 
 
 Sec. 6. And he it further enacted^ That, for the purpose of 
 greater convenience, the decision of the court upon all the 
 questions submitted to it shall be in the form of resolutions, 
 to the end that, upon being ratified by the legislatures of the 
 requisite number of States, they may have the force of amend- 
 ments declaratoiy of the construction of the Constitution. 
 
 Sec. 6. And he it further enacted^ That if, by the judgment 
 of the court in the said suit, it shall be declared that slavery, 
 or involuntary servitude otherwise than in the punishment of 
 crimes, can have a legal existence in the territories of the 
 United States, then that the following article be proposed to 
 the legislatures of the several States, as an amendment to the 
 Constitution of the United States, to be valid to all intents 
 and purposes, when ratified by three-fourths of the said legis- 
 latures, as part of the said Constitution, viz. : 
 
 ArtiaU in addition to, and amendment of the Constitution 
 of the United States of America, proposed hy Congress, and 
 ratified hy the Legislatures of the several States , pursuant 
 to the fifth article of the original Constitution. 
 
 AiiT. . In all the territories of the United States which 
 lie north of thirty-six degrees and thirty minutes north lati- 
 tude, not included within the limits of any State, slavery and 
 involuntary servitude otherwise than in the punishment of 
 crimes, whereof the parties shall have been duly convicted, 
 shall be and are hereby for ever prohibited : Provided always, 
 that any person escaping into the same from whom labor or 
 service is lawfully claimed in any State or territory of the 
 United States, may be lawfully reclaimed and conveyed to 
 the person claiming his or her labor or service as aforesaid. 
 And provided further, i\\Q.t nothing herein contained shall 
 be construed as impairing or afifecting any right of sojourn 
 or transit of a master or mistress with his or her servant or 
 
10 
 
 servants, now enjoyed by force of tlio Constitution, or any 
 present or future amendment thereof. 
 
 Sec. 7. And he it further enacted, That tlie following arti- 
 cles be also proposed to the legislatures of the several States, 
 as amendments to the Constitution of the United States, both 
 or either of which articles, when ratified by three-fourths of 
 tiie said legislatures, shall be valid to all intents and purposes 
 as part of the said Constitution, viz. : 
 
 Articles in addition to, and amendment of, the Constitution 
 of the United States of America, proposed hy Congress and 
 raffed Vij the Legislatures of the several States, pursuant 
 to the fifth article of the original Constitution. 
 
 Art. . The migration or importation into the United 
 States, or any of the territories thereof, from any foreign 
 country, of persons to be held to slavery or involuntary ser- 
 vitude, is for ever prohibited, and no person hereafter migrat- 
 ing or imported into the United States, or any of the terri- 
 tories thereof, from any foreign country, shall be held in 
 slavery, or involuntary servitude, except in the punishment 
 of crimes on due conviction thereof. 
 
 Art. . No amendment of articles [stating by their num- 
 bers those re-adopting the Missouri Compromise, the resolu- 
 tions of the Supreme Court adoj)tcd as declaratory amend- 
 ments, and the one prohibiting the re-opening of the slave- 
 trade] or of this article shall bo valid, unless adopted by the 
 unanimous consent of all the States. 
 
 One single observation as to the amendment last proposed. 
 It is obvious that it would essentially promote the cause of 
 freedom in any territory left open to the admission of slavery 
 by the settlement, and its gradual extinction in the border 
 Slave States, by removing for ever all necessity and induce- 
 ment for tlie Slave States to struggle to maintain the balance 
 of power between themselves and the Free States. 
 
11 
 
 Such do we conceive to be the advice which any sound 
 practical lawyer would give to his client, who should call 
 on him and tell him, that he and his brothers and sisters dif- 
 fered in the construction of their father's will, and who, upon 
 turning to tlie instrument, should find that room for an honest 
 diversity of opinion existed. If the client should turn upon 
 him and say, I have reason to fear that the present judges 
 of the court are against me upon some of the points in dis- 
 pute, and as I have considerable political influence in my 
 district, I would rather wait until the terms of the present 
 judges expire, and I can get my former counsel, Messrs. 
 Smith, Jones and Brown, elected in their place, who have 
 taken fees from me for their written opinions that I am right, 
 the counsel consulted, if he were worthy of his ofiice, would 
 feel, that any attempt to reach the finer chords which vibrate 
 in the bosoms of honorable men, would be in vain with such a 
 subject, and would close the discussion. This article is not 
 addressed to those who will make such a reply, much less is it 
 to those, if any such there be, who believe that the present 
 judges of the Supreme Court of the United States are not 
 pure and patriotic men, placed by their position above the 
 reach of the waves of party, as most of them are, by the 
 length of time during which they have already held their 
 seats on the bench, from any charge or suspicion of having 
 been appointed with any reference to the questions now dis- 
 tracting the country. 
 
 December 17th, 1S60. 
 
 POPULUS. 
 
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LIBRftRY OF CONGRESS 
 
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