TH E HE MESTEAD BILL. SPE- P EE C H HON. M.N S'WJINS0N; F MN 0, T:A. in the Senate of the- Uuited taste, on the for mil and ms: oethe ui*h $aii of my 3d of April, 160 the hoetead topAsition own State, whre every ich of the ladd was scalled up, and ws disC sed' as in Corn- entered under the pre-emption law, an whene wiihtee 9r the Whole. Thiere were tWo bill{ there was not on thso otli*eoatry a sinUna4er consideration; the on *,$ lill reported gle evidece eulti-viuo, improvin, or from the'oizse of'l ep tv, and the occupaney. oth a,. Ibl substitwted7 fo'it lby'the Senat Under the kiuting, pttie, tha *iuit of land rnmmluttee on Public Lands. Nr.-'FcH, of speculation habecomeio: -s -amongour!,diana, offered the foflowing prviso as an people, ad the deire fr the io of amendmenet to the firt sectioa of the Hoe arge quantitie of aI dStrotg, it but lit Isbill; *> tle attention is' ]d t4vthe lutiaryand nees, " Provd, That the lands hereby granted sary safeguar hiek C oigehas so fit to' shall be entered or'located' iA alteinate quar throw around the la*.' The present system ter sectins i and.th:' the ularter sections, or designed andetishd e ihl. i:spiritof national parts of quarter sections, of land which shall justice, has entirely filed-.to tmt.the aend of'remain to the United States, ad "'t subject its autho, simply beause the foundation on 4to entry under the provisions of this act, shall which it rests is laid ih ftrorn The Govern. not be sold for les than double: oe miinimum mnent itself turn land'menopolist, and'seks to'price of the p0blic lands when'old: 4nd r'epleis'its Tveiasutyfroa- t.'ptoceedu of a' provided, furter, That the pr$sdne of thip traffic'n the p- blidc hMs d Wiithe'domin'act shall be appi'eable only to!a' stse bt t is regardaed ce itty M:; aoeorc of r*venue, no'private entry at the date of itS page." get, c eatsbe felt Jf the aithfhleecgtioa r.. Wl1 goUNSOt, UoCfinnesta, replie.d, as of the law, so long as the primary object of follows: seling the lands it ittsn.& Mr. PsaEsuPr:.I am entirely oppos ttho th e'Th ltl fif cift oet ne the:and laws has ln4iaua, [fr. Fu;CkJ] ]iolud it be adopted, rule. Gt(erm A"'n t,s o an'd sBpt ulWes in it would hoie a. serious tendency to impair the the ptsbl'clagtds,tiad Vhy should notetheopfie? agefulness of this measure, t Iit is only a In view ftthese facts,'haveloked anxiously nural &ad necessary deduction from one of for a lhange'in soie ha pd;;nd it is with pecuthe provisions of the Senate b ill, Ti itthat bthl liar gacai ot I t ge pr6poed I had intended to speak; but that bill and the in the shape of a homesteaddi. l. ioa bill are botb, in one sense, before the The ori.intl bill, as repotrted' t0-o tlr'' ate Senate; and I suppse that it w11 make very from the iBouse of R epresefitati v(j *d7d relittle differene t which ofthem may addrss ceive my hearty oei'c rr-reu. ltstit isets to ~ provey rema t-the dat~rkst:... have been met by a strong2 oppositionh if tihis The measure efgranting free homes to the body. Ou'r tdommitte on -Pu ic Landsa rtpao actual settlers upon the public lands is one in it iO US altered nhner and in esence and which I have long felt a deep interest. I have it has now been 6siteshed ito theform of a paued many years of my life among the hardy Senate'il, introduced b- the S:enator from settlers pf new States and Territories, fnd I Tenhnessee, [Mr. Jbsxso. This bill; While it have thus had frequent opportunlties to become' recognises the ijuptiee of the general prLtiple, familiar with the practical workings of our appears to me t to ckth f6rce aUd vitaity of present land systema, both-in its application t0 a' ractical measure the settler. and to the Government. I have This I say witi'ai deference to the gentle. seen large swindling speculations' attempted, men who have drawn up thiat prposition i its and in some insces carri out, by which present form. Tey have aed upon thirown whole townshipsw re secured by a ingle i1di- convictions of propriety, and it. maybe of epe vidual or cornpay un/der the preemptlon law., dinhey; but I'ustrepea that, in my- jsg t an4 by which the seriouslyopp rsre at least, the Senate billt does nQt rtrte real on the oei side, apd tihe Govr0rmnt irretriev- merits of tie case; tihat t doe6' nibt codver the ahb! defraudd. on the other. X have travele 4 wholle grnd, and; that ith oafdeid rdiwn'with 2 provisions and restrictions which will seriously ment is impracticable upon its face; and its tend to destroy its efficiency and usefulness be- only effect would be to defeat and destroy all fore the country. chances of an operative homestead bill. Some of its restrictions are illiberal, when The Senator went on to say, that he regarded liberality should be the most distinguishing the measure of granting homes to the actual feature of such a bill. Some of its provisiors settlers upon the public lands in precisely the would seek to create a distinction between per- same light with a donation of money from the sons and classes; when the real purpose of such Federal Treasury. Having assumed this poa bill should be, to furnish homes for all of our sition, he endeavored to deduce that we would citizens, present and prospective, who may be commit an act, of direct injustice in limiting willing to settle upon the public domain. These the benefits of this grant to those who reside objections seem to me so obvious, that I am upon the lands; or, in other words, in requiring extremely desirous that the Senate should agree actual settlement and occupancy as the neces — to the House bill, or to such amendments as sary conditions upon which the grant shall be would bring us back to that original proposi- made. tion. At all events, a full and friendly discus- Thus, he reasoned that the rights of many sion should be had upon the merits of the whole citizens would be impaired, because many citisubject. zens might not choose to avail themselves of a I am told that the framers of the Senate bill general privilege, common to all. Sir, if the anticipated serious difficulties; ithat theyjudged Senator is sincere in his position; if he has it necessary to attempt a kind of compromise really stated his views and his intentions; if he between the friends and the opponents of the can see in this measure nothing higher or greatmeasure; and that they were compelled to draft er than a mere donation of money from the Fedtheir proposition in this manner, so as to render eral Treasury; if he considers a just and meriit acceptable to all parties. I must confess; torious and expedient movement as a simple that I, for one, did not expect any considerable expression of charity; if, in short, his range of resistance to be made. The measure of grant- vision is confined to this near and narrow prosing free homes to actual settlers upon the public pect; then, sir, I must think that he does not lands embraces a policy so,wise, so just, and so fully understand the principles involved; then, humane, that I am at a loss. to conceive why it sir7 I must believe that he does not altogether should be steadily and persistently opposed by comprehend the magnitude of the question; any leading member of any party. Least of all then, sir, I must say that he does not properly did I suppose that its defeat would be attempted appreciate either the causes or the effects of our by a resort to parliamentary legerdemain. My proposed policy. surprise, therefore, was natural and great, when I cannot reply better to' the Senator from the Senator from North Carolina [Mr. CLING- North Carolina than by quoting from a speech MAN] the other day offeredthe following amend- delivered in this body on the 18th of July, ment: 1854, by Hon. LEwIs CAss, then a Senator'Strike out, in the first section, the words from Michigan. A homestead proposition was''to enter one quarter section of vacant and before the Senate, and was being discussed,'unappropriated public lands, or a quantity and a Senator from Louisiana, [Mr. BENJAMIN,]' equal thereto, to be located in a body, in con- still a member of this body, urged very nearly'formity with the legal subdivisions of the the same objection which has now been prepublic lands, and after the same shall have sented by the Senator from North Carolina.'been surveyed,' and insert, in lieu thereof,' to In reply to it, Mr. CAss spoke. I read from the'have issued to him or her, by the Cqmmis- Appendix to the Congressional Globe, Thirty-'sioner of Public Lands, a warrant for one third Congress, first session, page 1088:'hundred and sixty acres of land, to be located "The Senator from Louisiana seems to con4 in the same manner as that under which the' sider this project of granting lands to actual' bounty land warrants heretofore issued have' settlers as very unequal and unjust, and, I'been located, on any of the public lands of might almost say, dishonest. This objection,'the United States subject to entry, the appli-'whatever force it possesses, is just as applica-'cant being required to make proof, in support I ble to all preceding grants to actual settlers'of his claim, in such manner and under such' as to the proposed one, and, of course, conregulations as may be prescribed by the See- I demns the repeated action of Congress upon 6r eary of the Interior;' so as to make the sec-'this subject since the foundation of the Gov6tion read:'ernment. But why is it unjust? I confess "' That any person who is the head of a fam- I listened to the assertion with much surprise, ily, and a citizen of the'Inited States, shall, It is unjust because all will not take advan. I from and after the passage of this act, be' tage of it. This, to me, is a strange objec-'entitled to have issued to him or her, by' tion. If a system of policy is honest, just, the Commissioner of Public Lands, a war- and equal, in itself, and constitutional, it is' runt'" &ce'worthy to be adopted, though all may not be Th n his speech in defence ofthis amendment, willing to accept the advantages it offers. the Senator told us frankly that he was opposed' What constitutes the justice of such a measto the whole scheme of giving away the public' ure is its perfect equality; and that equality lands. He could not have laid before us a'is not at all affected, because there are men stronger proof of his opposition. His amend- so well situated in life that they do not need the benefits it holds ont. This bill offers from the soil. Here I point to a most indispnu' grants of land to every settler. It looks to no table record.'distinction. Has, therefore, a wealthy man Our present land system has a direct tendin one of the old States a right to say, I am ency to increase the spirit of monopoly and' rich; I do not intend to emigrate, and there- speculation, by putting up large tracts of land fore your law is an unjust one, because it at public auction, and inviting the capitalist to'makes provisions for others which is of no purchase as much of the national domain as he' use to me? There is neither reason nor con- may desire. This practice, if tolerated, may'stitutional principle in such an objection." yet become a fruitful source of misery and opSuch was the opinion of Lw-is CAss; and pression, even in our own free and enlightened the Senator from North Carolina will perceive country. Even now, with all our vast expanse that his objection is not only ancient and stale, of territory, labor is outweighed by capital, and but that it comes to us with the weight of a the rights of the settler are but slightly regardtriumphant refutation upon its head. I repu- ed, when brought into comparison with the diate entirely the untenable idea that the grant money of the speculator. Thus far, the course proposed would be in any sense a charity. of the Government has been in a wrong direcMen in power are very fond of telling us that tion; and the sooner it is changed, the better. " the Governmeit ias not intended to be a hzere For my part, I am clearly of the conviction that charitable institution." Will they not go a it should adopt a policy far older than the nation little further, and admit that it is not intended itself, and decree that " the land shall be sold, to be a monopolist and a speculator? no more forever." I would wish the GovernThe proposed measure embodies a manifest- ment, in its humanity and in its wisdom, to ation of national justice, of national right, and ordain that "the people go and inherit the of natioo.al wisdom. It is the duty of a good land," and that the public domain should be Government so to dispose of the public lands- granted, in limited quantities, to every man the property of the whole country-as to pro- who is anxious to earn an honorable living by, mnote the undoubted interests of the whole the cultivation of the soil. I would have Concountry. gress, in its homestead bill, address itself to the Here we have the solution of the problem, laboring masses of the country; to those who and here we may finally dismiss the mistaken are so often crushed down by the cruel and unsupposition of charity. In my opinion, this equal conflict between capital and labor; to Government should acknowledge, formally and the poor man, who earns his bread from olficially, the distinct natural truth, that the day to day by the sweat of his brow; to him wild, uncultivated lands of the nation belong, who feeds upon the uncertain crunbs which and of right ought to belong, to him who resides fall from the rich man's table -to these, upon them, subdues them, and cultivates them. I repeat, I would have this proposition adIt is but a common principle in equity to which dressed. I would have the Government say to we are giving expression. these persons, " There is yet a vast unsettled' he adoption of a wise and liberal home- domain for your occupancy; take it, live on it, stead bill by Congress would be a virtual abo- inherit it, cultivate it, and it shall be yours forlition of all landed monopoly within the United ever." "And when," as was said by a distinStates, whether such monopoly be practiced by tinguished member of the House of Representthe Government itself, or by any of its citizens. atives, a few years ago, " the poor man is put I need scarcely remind the Senate that the'in possession of his portion of this vast domonopoly of land by the few, as against the' main, and is secured by the strong arm of the many, and the parcelling out of public domains' Government in the enjoyment of a home from. in immense tracts among venal courtiers, have',which not he nor his wife nor his children can been, all over the world, the most powerful' be driven, then is he raised above poverty, not auxiliaries of absolute and despotic power.'-only in his ~possession of the land, but still Thus the monarchies and aristocracies of all' more by the virtues which he cultivates in his ages have been enabled to hold the masses'heart whilst he tills the soil. Then, too, he subject to their will; thus millions of the'no longer ministers to the undue accumulahuman family have been reduced to penury'tion of wealth by others, as he did when ada-ld degradation, because they were deprived'vantage was taken of his homeless condition, of the right to earn their subsistence firom the'and he was compelled to serve for what he colnmon earth, which was intended alike for'could get." the rich and for the poor. Ireland, with her Sir, my objections were against the Senate gr-:at mass of population, having scarcely the bill, I supposed, from the course which has n ants of life, and depending for daily bread been heretofore taken, that it would come up upon soulless and haughty aristocrats-Ireland, to-day, and had intended to offer some amendthe masses of whose rpeople are not masters of ments, for the purpose of removing its objec, ground enough to stand upon-has been fre- tionable features. In the first place, the Senquently cited as an instance of that cruel in- ate bill excludes from the benefit of its provisjustice which must always result from great ions all young, unmarried men; it is expressly landed monopolies. Out of her six million in- confined. to heads of families. I do not underhabitants, not more than one in every.six stand why a bill of this description should be thousand is the owner of even an inch of land, less broad in its application than the present or has any legal right to earn his subsistence pre-emption laws. I do not recognise the pro 4 priefy of abolisfiiig om e evilfr the mere, be fileit from t!ir pareaiiit- th- E pose of substituting another. I certtilytey rd spirit of d*tentua and tke friame: to sustail it asi errftnivise-4Wdc,; might say, UnJtit L — bmshipsa,-'if thsem wer4e the only persos. tc to exclude l unmaied en fom tie Jbnefts beafeed this dese wold not be so entirely of such a bill. As the 8enlth bill ow stands, objsotionable. 3at ot all,oMen,eaxi endure they ar'e entirely cut; of frotn all its dvanta e.' the samepriatioUs. - While the forest is yet The efedt of this provision, takein in conntec- to bo, felled, iad the humble eabiin is yet to be tion. with the clause'limiting the operations- ot erected, the -gt majority of the women of our the bill to lands subjiict to' privs*e'eBtr,'woild country aretoo frail Sto joi in the struggles be to ghut out entirily the.eanly settle-those and harhips io the early: settler. s-r, this who go first int9 the Unpeopled West —and r'e- bill shoald look beyond an immediate benefit. eerve its benefts in store for the multitudes If properly devised,-it will be fort the interest of that may flock in after the toils aud dangers, the mss Fsit will be for the interest of society &nd inconvenienees of pioneer life have passed at large, and of that high morality upon: which away. Such a restricti'n would be matred by all society ought to rest.: I will advanee the the most decid'ed: impropriety:and manifest causebfsuffering hr'manity 4verywhere. These unfairness; and twas surprised to-'hear the are the endswhich ithe guardianS of the nation's 8enator fro-m Ohio, [Mtr. Pu6H;] a Western weal should'seek, i discharging the high trust xnan, advocate the'Senate.biR for this very reposed in them.,; +eason. Pass thouagh our great cities. See the boys The'men whoi ntigmte in youthf to the -West- of all ag,'IwhoB suerm. around the stret — ern country, t b'uild np for tiemselves a for- many of them willing and anxious-to labor, but tune and a' r~etatiOta n, e the men of all others finding nothing. for their hands to: do.. See to whom the mstt liberal provisions of this act them exposed to temptations of every kind; Ahould apply. We need' their services. They day after day lookiig upon the equipages of are, in plain fect; the ia.iuaurd of: civilization wealth with the hungry and cannibal eye of upod this coninenrit.. They',rpenetfate the wild poverty. Who does not wish;that thes boys solitudes, fart beod'l the safetyand comforts of might be rescued from the constant strife be. Aociety. they t'aVerS' and explore regiona in twein vice ahd virtue, in which vice so often which, for thietime being, families could not obtains, thetast-ery? Let them be- told that reside' sgeurI.:'They pIitch their teites, build' there is labor fer them. Let them be told that their house, bsak'up" atld improe'th6 soil, they can go to thei fertile lanids' of the West, ndd ope t h' b*td acrbs to oceupaney ad- asid conquer a,posession from the wilderness tltrte.;They furiiiSh a mn6re sure and perfet by the' force,of thir own-exzerions. protectibn'to tir Western ftintier tha4'an be -W*'shaU hae les need for -the ereotion of yiven by all' the armied oldtier'along he bor prisons' we shlll'havelees oceasion: for the'er lin. Co0inifg ms'y f'romm tl different mainteee:ofk houses ofrefe. Anrd whent Sttes of the' Unibti, dy bring with- them' the ambition of the settler has been attaited, Seep and permanenit; attSiehnient tdo thi inestitr when hist teak has been accomplished, when the tions of' but coufitrt; end, l' ai si:ettlemnts adl eain: has been bailt, when th rich earth has'tance they 6rgaitn *unieipSl:goernmentS, begun to yield'heor abumndant! fruits, then the and lay the f6oida'tibti df turt Stat..:-;Sich' young settlr will reuireno stimulating legisare some of thehila'brs ind danuges'i such are latioa todrive him into matrimony. He will Some of their aihfvib tsnt Why, then,'i the fe1l fbr himself-the'necessity of a partner amrd a nama of fairnei s and of common sense, should helpietat i his free home, ion by his own toil. this claS oif'aet ie' id eu'eigetie y.ug. ten.Nture leWslatfs ji4n these- oases better than be entiely ignored'and catt side by tihe Se:- man. Rely upon it, sir,,that we shall aetwisely ate bill? in extending the benefits of the bill to all unLas; in oder to -be just,: mut bi drue1 in mawlred men. their= applicetieB; aiid!en6ld the Senate bill, Nwi ~ sirP I-come to uaothe bjeotio n against in' t'e preoVIsion'of'W*hih f speak, -: pupaial, the tena bill. It.will operate unjustly as to weua, and ii st. oui foreign populatio.; la this partictlar, it It msaj-bie hat'thmthL6it of the bill ifiteded falisfar shoit of the liberality of te;pre-empthat thi exclisibti of joing mehn without farnm- lio ais t hemselves. -.n this aeeCunt, too, I ilies'fr in-the'b~S/hftsr tee tonferrd Shold was urpised that the: Senator frona -Ohio of itself operate as an active encourag t to should,4 annouanee thit' t fivoreL: the Senate ti'-io'n idi':' ph et Ie;.'l I,4tv,-no bi#.i't dilobt thfit'tM Sgee *fith nX' iBe'lGievin,qlt P mT-&I he Senator iPs tistak"e. That'od it,i! otb bi psi o tiiit e i of -~t hoad li-t* it hie lioe- sgtied to the Bena. gcba i u a'bidiittfitjI biet IMi e txawd *r Tenneee; that he Senta )ijl ev br, thinifi lg'tlit titsit' t d e#ftAii' p Wi.' y e atten taon. I. wish toamen i in fails 6f iSt l 1je/t,i dt4 does n I6t A the th ba itwiot internrpt the' Senato-, I'oper eneoineht..Ithe re~t eIuse willimake t o the point h s just *ere t applo nlE th d6- anddaugfitere of Ieft; bfo 0The Ofgtt Senate hilt these Meatly piodmeers whtvigrted miaBy,4ars to heftif'f amriles i4to p reveant frand, with ago'to the flnthirsx, ned whohah'e gr' Wiit,'With whiceh:the Senator mut e'etainly be familiar, gtowing StatesiB to p' prlaty aend *ft;'if u' pndm ptt'. h eatiota'ihe premptioa- nt. iTt Were to tpkl iy bthoelle'bildk wEitf The8Mft U to;- AGe-lthe operatimo oF' th' preemIptieon at4im gadatiom.~ actor t could not endare tnoecwary hardships. By the special law! fr Ktia*s. d Ntebraska, offering.i.dcenaewta to young men, we 6hall Which permit settlemant under thep ker empto secure the opeaing, up- of the wilderness,' the h1-t uponi: tunisu6ye.d lztlatida; so: that these |building of. csbiqe, and panting of first young met mayTgoa foeward andi ake. their crops. As sAettlement inorese, tl e ficilities claims under. t'e:p-e'ewpt- l'aw4 and they are for obtaining wive. will increase with them, not' even called rupott to pay for ictuatil -proc- But to resume, I hesai that I object to lamation and:lpublic sle is msadatthe inter- the Senate bill, becanse it will perate unjustly val of five or si:x year. Therefore, the-effect in regard to ou foreign popullatou. of the Senate bill is' esimply to -wake, not an ex. The Senator from: Tenaeese,, [iSr. NICHOLctesion, but a distinction between the head of sow,] in bis recent speech in.sepport of that a; fatiily andan unmarried tnan, aind precisely bill, used the followilg aomlgmi; that distinction exists in every doation law -we "The bill rmatured by te $ena!e.cmmithave over adopte —in the Oregon: act, the New' tee, and. now before the Senate, is relieved of Mexieo act, and the Florida act..The Senate' these objectional, provisins and to that I committee have not departed from the princi.'shall confiepmy rewar4. -; piW heretofore idopted, "It provides that anyperson wlo is the head' -Mr. WILKINSON. I ld say to the Sen-' of a familyo and a citizen of theUnited States, ot*r, that, the provision:thef which I contend is',or who shall have filed his intention to become precisely the same as that adopted,by the pol-' a citizen in puuae f our naturalization iey of: the pre emption law. That;law extends'laws, shall have the right to enter one quarter its privileges to all citizens, present or pros.'section of tihe unappriaoprted public domain; ectivd; married or unmarried, who may be' butt in exercising this righ, hsuclpersWon is to oi'er twentqyone veaS* of age.a; I do not wish' be restrictedtO' o0e. oe.lsds that have. been this measure to fall short of the liberality of' surveyed, proclaimed, and offered for s!le, and that law.'are-consequently tulJect to private entry unMr. PUGH. I know that butthe preemp.' der existiag laws." tion law is the law of payment, and that is the With all respet forthSenator, IT must beg reasin for it.; to.correct the error in ithbl, statement of ifact. Mr.: WILKINSONi. I deo not knwo-,that I The bill does, aotde r;eth at.ay person "who eiacttly understatid the meaning ofI, Shend- shall have filed hia. izttiowtbeqome, a citior. If;he means only that this,rstrietion ze in- punPance'f our aliionlws," roauld hae the effect of preventit nfrauds) I shall have the rightto gt:er: lan4.undler its can readily answer hims tto fa as my erif prowisi'ns, ad...be I tr: e ms coaplaist; enee has goeug an&d rnarried men have Ihere - find, another at of!ipble tine ustice. been found:no bnre -efficient ifl Tobbig -the The.first section of the SenatebiUll is as follows: G&veriinent of its lands by fraud than some. Th y pe w ia te ha.{ of a rlder men and heads of Iamiies. My impres' family, and & citin of tie Uo ited States, adih is, that their honesty is quite equal to the' shall, fro m, ad a&er:thi pasa of this. act, v*rage'honesty, f the old: men., Perhps they'be entitled to enter oe qter section of vahave-not lived loig eoudh, to become so hard' cant and tnapptopriad public land, or a *tied in iniquity as to elailethem to tske pre' qantity equal therett, to be located n a body, ba-ption oath ithot-foundation for it. Their'in confoiraitywittA thJi egal subdivisions of Ilders sometimes: Set the example.'t he publielan!, and a'fer t.e same ahall have Mr. PUGH. This is the idea: the hed, of bten searveyed," * -tmily, *ha -hs or timy hate;i is naily with This: section distictlly ad4, expressly limits him, will very often-I will not say in:every th.pplicatio a. f bilt t he citeens of the mea"e-.-.mkea boj-fide s ttleaeuti ad gbEupon Ulited States. It- Aweuld eatirely eclude all the land; bht in the ease of young mie, who those persons wrho may emigate to this country have no fixed residence, a majority of their from a foeign:lland:fter thlaepasae of the bill, 5#alements toidsy, i-ader th pretaetiod lhw, ati theyshil lsverdd in the Uaits States " colora'le. It is ai ascetainada fait hati a for five, yeas, sud,- anil they shal hsve become majority of them -are col!.eobl; The'y merely itizeuat-besoef;f: thie the hlnds to sell them again ajil that is Mr. WIGFALL.- I s. bthe Senator, in a the, wayt they ge ibnto te hands;,fVp'WulaotsE. wo;r, does he pplosetgive way ta public They do not'get it at pablk ea., biit iet'it by 1d w; peas;ou who tare, citizena of the colorable pte.e ptins,. Uited StaM. ~Mr. WILKINSO,: Tie Se. ator:mstrngh - Mit WII I:N,:., I propoqse to sh.ethe oes my positibn'. MY'artsmt is, that r bill jeitaey oa ioad s _the pttip n:act present -prattles e'nebrt6 g. i iolstid n:of: the i-r:-;:to eotb /d its ben, talsl f0!lglgnera law. His objection, I repeat, wouldsqlpl w h slay isygr: t*h''ptea t a:ties t b come equailly; to *any ftr*uehw g hosfistio e eixiont st#1.k w sht do a06 vail tthleels 8 f-lea esoa vm k b aofi46;reW JI a 4 l f.t w. wp be unj.ust Mr. PU6GH.: dot mtiA sme aa e:i-Ayt-a inghig,s11. etfewefty y ~w ago, ConMr. WILKINW8O. ibttht: sse: dis g*ess,;ia.impatVss of;-th pei;emptioP act, MIt yet gsem to bpOee 4h iaehbu ll*rbr of the opted.toss of:plaiu foreigne:rs.w]4 idea. I'n mtvaaee aate b mewt, e ha deb clarodthir iatentases to hecsQ e citizelns take thait fSs{i}#~es~sb a*eildwac Thte ef the UiAdgtae0 -n eaqus liity(so far 6 the land laws wer- concerned) with the'n tive- way this influx,:~ eWigrioe;,and t. conse~, born citizen.' This: systen was dicetated niot quences are befiwre n, itt our present prosperitq only by ian exalted sens -of natiomal liberality, and gr etnesi& Shall Rwe pIrove ~true to oz but also by a wise eSirb on thei part of the Gov. past? Shalll we. gi the lie to eperiex ce and ernment to invite, foster, ntid encourage, emi- to pilotophopy? In-one wqrd,.F aU we rtro gration' fromi EuY ope. I argue, that.twenty grade.?: I incerely hope th~ such.may not be years'of beneficial experinbe' should be siaply our decisioD. I trust:fait#b/ily taet we may sufficient to confi&rm in otr. minds the evident continue.to.advance.; hfat we waye understand advantagesof the established policy.' During the. past to be oar beat gni4dfoqr the faturi that tiriei weihave been furnished-with the most and.that vwe tmaay still encourage -a consatat abundant proofs of the loyalty of this class of emigration fwm: hb Old World t te Neaw. our people. Why eiould we now:begin to tnake Butin t4is:hqo pe:are met and rsi,-ted by any oppressive restrictions in regard to them? the.present Admisietrain. T]e Seretary 41 Who can now pretend to d-read their influence? the Interior, ira hiS ast annual reprt, in spa] VWho can: pietend, in the ifcCof;a longt and con- ing of the homieate measuresi takes;occasIioN vincing experience, to fear the effects of their to say: emigrating hither?:Whate new reason has "Should, however, the ne,policy of.a been discovered, that should check the influx'tuitous distribltion of. thie'. public tmns b of this foreign populait'on6?',Let us, question' adopted, it is avident that while an un:C. the record; let us summon history to produce' stimulus.wosdd k gwizn to egratin,.land her testimony in regard to our foreign popula- hbounty -can, so longer be held out s ap; tion. There has been no battle-field from Maine' ducement of ture military srvice." to 4exico that is not red with the blood of The Secretary of the InteriQr hlge,expreaq foreigners shed in deenoe of Atner'ian liberty I his ~fears thatt an u.due. stimulus, maey be givo. Wherever our flag hass been borne victoriouly to foreign emigrati 4. Now.tha the snatioa in battle, there the heart of the foreigner has has grown strong and great, this high fupi, throbbed beneath its folds I There he has stood tionary woutd noldi.tuwrnaway from t4he4escendshouldertoshoulder with the native-bom,;hoping ants. of those.whq in tpur infancy contribitd the some hopes, bearing -the saume'dangers, from their blood and treasure to the est bishr struggling for thie'sameends, and exulting in mueet sat.eatenane of a free GCvernient the same triumphSi. Whenever we have icon- on this continent. The e public will deservq quered new territory from an enemy, his bones to be ealled " ungrateful," ip th;wwst sense of lie thickly scattered:beneath i t depisedwrd, when it cane.brought to The' Senator ftom Mifsissippi, [Mr. DxAvs,] adpt- such * suggetio,. who htashonorably and ably filled the position -he s8eesretary cil$.te* hwestad propo;si of Secretary of War, can -tll, from the annals tion" a. new polcry.!":How i it pew? a X it of his Department, bow true that elass of our not often been eonsideredt es.. it notgno. population has been in time of war.-'The whole its earnest.and abie dsvooats under this8 QovtiourishingWest.-.indeedI th1e Whole country — ernmaent?: And have not ether Governmelta can attest ho, useful-they'have been in time frequently wvailed, them selves of the. advaonof peace.'The foreign poptlation I Stretching trage. resulting- from frte grants. of landto outward and weswd weeward'from our sea-port towns, actual settlers? The "new policy," so recei4g bearing the will to toil and the energy to secure discovered,by the honorable.eQretary, 1 ie snccess, that population has marihed steadily been an ancient institution in.ma ny nations on with the incessant and irresistible tread of a the world.: I.,will read an qextract froi a' degreat destiny. It has gone' into the silence of tree of the Rpahlic of' Cd'bia, dgtted Jnq tbe prilneval forests, and the axe of.'th wood.- 1823-: man has made music in he'solitude; and happy The Senate and House of.Representatives homes have smiled throughouat the wilderness. of tie tepublic Of lonpbia ait~ed i (eCo - It has pluneil into the depths-of the. maeshes;, gsros, cid. ierAingand millions of acres have:beenreelaimed from TB a p ation, numeous Ad mpw o sterility and- wbo" to'eultivatioa-. Everywhere' petions to:e territo. of a State, in.t it has assisted in creating villages, ownsi and' basis of proty ind.t ue gntnasa i cities, in2 its luminous path.' "2. that the fotilitiy of. the. i6l, the sal. W herever'Americat at:tisa: triumpbhed or'brit. of.* *lijate, tQ.e e;teneive unapprop$.. American civilizstion'hbut been'clerly tb-'ted4au ds, ad the.fee finst.i4uati-oo.thi lished, there you will find the'histoy of our'Republic, permit and r'quireanumerouaeuir foreign population, not writtenf'eCrikable or'igrsa:nt *fs ef1bl4d iab'g4,saOgqs, who, tying reo",s bat stan eddelibl.yA pemdi "' by f improving,their os fo rt. nes,'ns a0gr in characters 6 df dee and aetion, Aupou t —he meatth - o ensyea ae.the natl *.o-?haye d. progress ~ad:eiviiation O s4 a mty t yitional,,dirmd;, ekisten Te.- hese lfeigene *shohsate ieme T *' reigewip~ti to C.oCwia cititess-these men l eomplilV' snhal wgr atg e s,.e"i much —htavenljy I pa the #a]y brthhses'oho' paroelsof-ti nO h1 u.Pe feWegs. tabout four are to come after them. Theik4- B end and e ela t ish-nndrslmre~A ].toch, fnai,:,. tives in other lahds, hearing ioft:h- sutceses I dfiad notAer.o m^d. moM re*sarkable iw4 are " constantly puing in upon our. e stance, ur stg.in tne. qoeuntry, aBd undTr It has beetn'or:poliey hithe btotb4istinavery *d4espofi - rl. I,IJilqjWotO from a proolaw tion of the King of Persia, made through his' bad trade, or some unforeseen disaster has ambassador, and dated London,- July 8y 1823:' overtaken him. His year of honest industry " Mirza Mahomed Saul, Ambassador to Eng-': is gone —the time has come when Government J'land, in the name and by the authority of Ab-' demands her pay for this poor man's home.'bas Mirza, King of Persia, gratuitous grants of'He is without money. Government, with a " land, good for the production of wheat, barley,' hard heart and inexorable will, turns coldly'rice, cotton, and fruits, free from taxes and' away, and the next week or the next month' contributions of any kind, and with the free I she sells her land, and this man's labor, his'enjoyment of their religion; the King's object'humble house and little fields, are gone. The'being to improve his country." speculator comes, and with an iron will turns Thus it would seem that our Secretary of the' him and his family out of doors; and all this Interior might have taken lessons in statesman-'is the act of his own Government-of a Govship from the young Republic of Colombia, and' erument which has untold millions of acres of that he would hardly have been equal to the' land. Now, Mr. Speaker, let me ask you, can duties of a Cabinet officer, even under a heathen'this man love a Government that treats him King of Persia. I can only regret that the'thus? Never, sir, never. To do so, he should honorable Secretary, for the sake of his posi-'be more than a man, and scarcely less than tion, did not look more closely into the history' God. Treatment like this would have put ont of his own and other countries before venturing' the fire of patriotism in PWVashington's breast, upon the assertion that this was a "new pol'and almost justified the treachery of Aricy.~'nold." —Speeches and Writings of Hon. A. G. Is it in consequence of Executive opposition' Brown, p. 196. that the authors of the Senate bill have been As the Senate bill now stands, the hardy and induced to give it such a form, that it would energetic pioneers, be they native or foreign operate unequally as to foreigners, and thus re- born, are entirely cut off from all advantages; tard, rather than encourage, emigration? I because these men, going in advance of your hope that, in this regard, the provisions of the surveys, are obliged under all such discouraging House bill may be adopted-that all those who circumstances to pay for their little homes at a e now residents, and those who may hereafter once, or have them sold by the Government; become such, who are willing to abjure alle- while the weak, indolent, and shiftless, who folgiance to their former princes, and declare their low in the train of these fearless adventurers, intention to be;ome citizens of the United are rewarded with a free home. States, may be permitted to enjoy all the rights In my own State, where there are millions of under our proposed grant which are to be ex- acres of unoccupied public lands, subject to tended to the native-born citizens of the United pre-emption, there are no lands of any value States. which are subject to private entry. The SenBut, sir, I have another and third objection ate bill, theretbre, would be entirely inoperative to the Senate bill, which, to me, is of more im- there; and when the public'sales should take mediate importance than any to which I have place, all the most valuable lands would be yet alluded; and that is, that it, applies only to bought up by greedy speculators; and, the real lands subject to private entry, Underthe pres- objects contemplated by the friends of this ent land laws, no lands are subject to private measure would be defeated under the Senate entry until after they shall have been surveyed, bill. brought into market, advertised, and offered for I am free to say, that if this provision is to sale at public auction. Then the capitalist is be retained, the whole bill, so far as any practiallowed to come in and purchase whatever par- cable benefits expected to arise from it are contions may suit his convenienice. The experi- cerned, might as well be rejected at once. ence of the West goes to show that settlemelts Nothing valuable will be left, save and except are in advance of the surveys of the public the mere recognition of the principle itself' lands. We would establish a glittering show, containThe first settlements in a new State or Ter- uing nothing of-real merit. ritory have usually been made some years befbre Mr. President, the friends of the homesteadthe land has been offered for sale at public auc- measure want a practical bill; they want an tion; and when such sale takes place, the operative bill; they want,s in plain words, an settlers are either obliged to suffer their homes honest bill, which will acconiplish, in fact, the to be put up at auction, and sold by the Gov- things which it assumes td maintain in theory. ernment, or to pre.empt, enter, and pay for the I have, Mr. President, one last objection to same at the Government price, before the day the Senate bill. It contains a clause limiting of such sale. The hardship and oppression of the application of the bill' to. alternate seethis stern rule were vividly portrayed by the tions of the public lands. I regard this provisSenator from Mississippi, I Mr. BROWN,] when ion as particularly objectionable, because it he was a member of the House of Representa- seems to me to be dictated by a desire on the tives. He then said: part of the Government to- make the energy ~ "Look, sir, at this scene; gaze on that sun- and enterprise of the people a subject of specu-'burnt patriot, for he is worthy of your admira- lation. This' objection also applies to the'tion. Now go with me one step further, and amendment of the Senator from Indiana. Bebehold the destruction of all these fairy vis- sides this, it would place the settlers who may ions; blighting seasons, low prices, disease, a select their new homes under the provisions of 8 the g.tO, *t i tefe fsop eWh thbr# and, I pp,p elri pewh:i i1t, ), e3nse1ne1tty,s-ad ~Kmet Wthe.em ments. r~,: ad d9s i aeqa proslaim to be jq'.t of _ew esotlovqte OA. the fm.t* - 1l o eta.ad 0oW*T, pproe of av t..se o0f ao'e"pnt spn- e t eo-: vp t h i;of~Wie' hpiIdkbed,4 laiou in. t*pb i0 lanetifO, l1 dO I dis-, aiiti aOc:lj* 1 ~tigletlike th-A e4* of n faiwhbiqii rsghi* illee iot #ff'i tb4Ft t* - t 7fei wji*s limiting &andtstriti the #pplXaon omL4is f fiob a~rv'iqU'at. rTs IOWoh so.,*w l1!bemtl Mrnesooffe that. e 0ernint ofte ti'i;a:e f., az *a'fr may be abt to trge i isg T Aemu f'Om. the t4he l* fes a,.etgteo.4 4 n ingb:g sale of lan4ql there tar v~ -oi o.whioch maa mimic battles av-.~ags~ i atoe ts,; i while been gratly on eed by voaw-a aflth t e- Ath i4M. W #en s p 4is eeane f acmsate around them. knOw W 9I' y s ait w g qW&$ g, I *wt a When we reflect that the first ettlersof a hoetod ill, beiCus.: I bonet.l,nd 4r country are those who,b are obliged to- build tfe I lievq ito be'just, l wia R..ecidcauldld school-hoeqes ad churches; to cut out and es-: prqmuote the I p, a:nd prspe; of tablish r eine8, ats constiu. ct bridges-in short, the great mass of o eppleI.:Tle.tn. ff to start anrid create everythig tht is essential the true itrests f th. people shouldch lri and neeessry to the happiness of a civilized only object.. I feel it to be y duty,.s a.: wpeole —we can readily understand how much ator and.legiSlator, o work':thJ oYWspfg more arduous these abor become in cose- great natiqonl nep'sis; and Isshall!: let queneo of the remoter.ets of neighbors. Muni- happy to see all parties united in the enterprMe. cipal and social exigencies demand that settle- But if thagetlepeaa on e tho. e qieo* the meats should be oaeaised, inaaueh as posi- Chambpir sel crse gar,4 etln ~qtige ble. as eectional, and undemocratic; if they:s~l If the public lands are to be thrown open at determine that tlthey, cp o it recile it with all, let the whole mass of them be thrown open their, partr f*ith; if they, or any ooWi ble toithe operations of the homestead measure, as number of theo, sall oppose it upon sectinal the House bill proides. or party grouud —,then they) and they alone, r. President;,j the bill which has passed the will have made: the issue; and then aX apprHouse, and which hIas.been reported here in bend that those with whom I have the bonor.o the Senate, come to us free from all these ob- act politically e ill beready. to meetit. jections. It seeks to carry out the true objects Thnlit. w4l go upon the record-it wi-L1 lhe and purposes of tis wise policy. It places spread before theeountry —c —.tat the Da oc rtic before the people this m.esure, full and brood, party resisted and defeated the lieralpoliay of in its application, making no unjust distine- ashownteead billl While itwilalso,: trust, le tions as to persons; no unwise and illiberal fixed upon the record of Congrees, that thie.'limiavrtions asto the kind -of lans to be affect- publicart party ws aneither r nd nor afraid ed by its provisions. I would mceh prefer its of te mesureof grantig fe homes to the adoption; but if we catnot accotmplish this re- actual settlers upn ethe public lnd. 1 repest, suit in itCt, if the: Senate is determined to re- I do not desire to see this made a partyquasject the House bill, I shall endeavor to ap- tion; and, it, rests entirely writh teweratic preach the -same -end through amendments Senatprs to produce this rqault, or not to prwhich I shall propose. If they should be re- duce it. jected, either in part or in the whole, I may May we not hope that this policamayr b per. feel inclined to support the Senate bill as it is; fected and adopted, in a spiri. of,.rmony A and, though far trom being content with its good will? May we not chprish the fon:jeprovisions, may be disposed to vote for the pectatio4, that no disturbing etianal ides simple recognition of a priciple. shball bhe alowed to cowrupt the iUfancy of so Mr. Preident, the Senator from Tennessee pure a measure? It should be cradled in the [Mr, JOHesoN] has spoken of this question as: lap of peace; it should receive its nurture.sd being above and beyond, all.party; issues. I I supprwt,omthe ki'ly eeing ofall sections agree with him in this. I1believe the measure of the coutry,,because it is for the coammo to be higher, far higher, than party or partisan benefit of~ the whI couintry. claims It appeals directly to the great heart Standing upen his own soil, the settler Trss of' the nation. It is the measure of the work- to the full dlgaity of, manhood..e is ideiag, suffering oleass of our people; those who pendent from the hour ia whic he qbemes are struggling on from day to day, from week the owner of a free.farp —indepent of to wieek, and, from year to year, vindicating everything, except his country ad' his God. the dignity of labor against the oppressions and Open up your domain to him,:give him a home aggressions of capital. It will' be welcomed by out of the vst abundane,.f y aour lands, and those:who are ever-patitnt, ever-ediuring, ever- you will hayve found the. surest method for the vigorous, and ever-hopefu. Why, then, should perpet#*tion. of.yo. Government. Youa will any gentleman attempt to narrow it down to have sahctified his patriotism. He can never some imaginary rule of party platforms? Why prove untrue to.the, Constitution and to the should any vile spirit of sectionalism enter into, laws, while he, his wife, and his children, are it, to mar its beauty, or destroy its R;efulness? enjoying the bessings Of a free home, undlr Cannot the wisdom, the humanity, and lofty the protection of that Costitution and those statesmanship of all parties be combined in sup-.14 ws. COURTS CANNOT CHANGE THE CONSTITUTION. SPEECH OF HON, J. R. DOOLITTLE, OF WISCONSIN. In the United States Senate, February 24, 1860. Tile Senate hatving under consideration the' for it a precedent."-Padelford, Fay, t Co., vs. resolutions of Mr. BRowN, affirming the power Mlaor and Aldermen of City oJ Savannah; 14 and duty of Congress to legislate for the protec- Georgia Reports, page 506. tion of slavery in the Territories — Wisconsin has never yet gone to that length. Mr. DOOLITrLE said: She has never yet denied the appellate jurisdicMr. PRESIDENT: John Quincy Adams, during tion of the Supreme Court of the United States, the last year of his life, in conversation, said in cases acknowledged to arise under the Conto a friend " that the best thing ever uttered stitution of the United States. She has only asby Andrew Jackson was that for which, at the serted her right to judge for herself as to what time, he was so much abused; namely, that in cases are not under the Constitution of the Uniswearing to support the Constitution, he swore ted States, and laws passed in pursuance thereof, to support it as he understood it, and not as and as to what powers are not delegated, and other men understood it." I shall make no therefore reserved to the States; and that, upon apology to-day for the Supreme Court of Wis- that question, her Supreme Court is coequal and consin for construing the Constitution of the co-ordinate with the Supreme Court of the UniUnited States, upon their official oaths, accord- ted States, and not inferior and subordinate to ing to their own convictions. It needs none. that court. Besides, sir, no Senator has a right to demand. Sir, if the court of Wisconsin has erred in asone; and least of all, a Senator from Georgia. suming this power to judge for itself, independThe Supreme Court of that State, as late as ent of the' Supreme Court of the lUnited States, 1854, not six months before the decision of the who taught it that grave error? The resolutions Supreme Court of Wisconsin, of which her Sen- of 1798-every Democratic platform, for the last ator [Tr. TOOMBS] complains, upon a long and twenty years, reaffirming them, as fundamental able review of all its judicial. controversies with in the Democratic creed; the Supreme Court of the Supreme Court of the United States, summed Pennsylvania, by its unanimous opinion in 1798; up the whole, declaring their conclusion to be- and the Supreme Court of Appeals of the State "That the Supreme Court of Georgia is co- of Virginia, as late as 1814, after a long hearing'equal and co-ordinate with the Supreme Court and full consideration, by a unantnous opinion,'of the United States, and not inferior and sub- declaring that the Supreme Court of the United ordinate to that court; that as to the reserved States was not superior and appellate to the Su-'powers, the State court is supreme; that as prene Court of Virginia, have taught to Wiscon-'to the delegated powers, the United States son the same lesson. And what should close'court is supreme; that as to powers both dele- the mouth of any Senator from Georgia is, that gated and reserved-concurrent powers-both the whole judicial history of that State, from the' courts, in the language of Hamilton, are' equal- beginming of the Government down to 1854, has,'ly supreme;' and that, as a consequence, the upon this subject, taught no other lesson.' Supreme Court of the United States has no ju- The resolutions of 1798; drafted, as it is be.'risdiction over the Supreme Court of Georgia; lieved, by Jefferson himself, declare:' and cannot, therefore, give it an order, or make " That the several States composing the Uni 2 c ted States of America are not united on the' people must be resorted to, for enlargement or'principle of unlimited submission to the Gen-' modification. If a State should differ with the'eral Government; but that, by. a compact,'.United States about the construction of them,'under the style and title of a Constitution Afor there is no common umpire but the people, who' the United States, and of amendments thereto,' should adjust the affair by making amendments'they constituted a General Government for spe-' in the constitutional way, or suffer from the' cial purposes, and delegated to that Goverhment -' defect. In such a case the Constitution of the' certain definite powers, reserving, each State to Uited States is Federal; it is a league or treaty' itself, the residuary mass, the right to their. own' made by the individual States as one party, and' self-government; and that, whensoevertfeGeGa-' all the States as another party. When two' eral Government assumes undelegated powers,' nations differ about the meaning of any clause,'its acts are unauthoritative, void, and of no' sentence, or word, in a treaty, neither has an'force; and that to this compact each State ac-' exclusive right to decide it; they endeavor to'ceded as a State, and is an integral party, its' adjust the matter by negotiation; but if it can-'co-States forming, as to itself, the other party;' not be thus accomplished, each has a right to that the Government created by this comnpqct-' retain its own interpretation, until a reference' wasnot made the exclusive or final judge -f hie' be had to the mediation of other nation!a a4d' extent of the powers delegated to itself, since' arbitration, or the fate of war. There is no'that would have made its discretion, and not' provision in the Constitution that in such a case'the Constitution, the measure of its powers;'the judges of the Supreme Court of the United but that, as in all other cases of compact among' Stales shall control and be conclusive; neither'Powers having no common judge, each party' can the Congress by a law confer that power."-'has an equal right to judge for itself, as well of' Respublica vs. Cobbett, 3 lDallas's Reports, page infractions as of the mo4ie and manner of re-' 475.' dress." - I read, also, from the fourth volume of MunAnd the Democratic platform made at Cincin- ford's Reports " of cases argued and determined nati, in its eighth resolution, declares: in the Supreme Court of Appeals of Virginia," ", That the Democratic party will faithfully froma case decided in 1814-the case of Hunter' abide by and uphold the principles laid down vs. Martin, devisee of Fairfax:'in the Kentucky and Virginia resolutions of "' Soon after the case of Hunter vs Fairfax's 1798, and in the report of Mr. Madison to the' devisee (reported in 1 Munf., 218-238( was de9 Virginia Legislature in 1799; that it adopts' cided, the appellee, Martin, obtained a writ of'those principles as constituting one of the main' error from the Supreme Court of the United' foundations of its political creed, and is resolved' States, requiring the Court of Appeals of- Vir-'to carry them out in their obvious meaning and' ginia to certify the record for re-examination'import."' by that court." Again, sir: I hold in my hand a volume which The clerk of the court obeyed the writ, and contains a decision of the Supreme Court of certified the record; the Supreme Court of the Pennsylvania, in 1798, in which this question United States reversed the decision, and sent was discussed and decided. The chief justice, back the record with a mandate to the Court of delivering the unanimous opinion of the court, Appeals of Virgir ia, requiring them to conform used the following language: to its decision. After being fully argued, the " The divisions of power between the National, court entered the following unanimous opinion:'Federal, and State Governments, -(all derived'" The court is unanimously of opinion that'fromn the same source, the authority ofthepeople,) the appellate power of the Supreme Court of' must be collected from the Constitution of the the United States does not extend to this court ~ United States. Before it was adopted, the sev-' under a sound construction of the Constitution eral States had absolute and unlimited sover-'of the United States; that so much of the tweneignty within their respective boundaries; all' ty.-fifth section of the act of Congress to estab-' the powers, legislative, executive, and judicial,' lish the judicial courts of the United States as excepting those granted to Congress under the' extends the appellate jurisdiction of the Su-'old Constitution. They now enjoy them all, preme Court to this court is not in pursuance excepting such as are granted to the Government' of the Constitution of the United States; that of the United States by the present instrument'the writ of error in this case was improvidently'and the adopted amendments, which are for'allowed under the authority of that act; that'particular purposes only. The Government of' the proceedings thereon in the Supreme Court'the United Sastes forms a part of the Govern-' were coram nonjudice in relation to this court; ment of each State; its jurisdiction extends to' and that obedience to its mandate be declined'the providing for the common defence against' by this court." 4exterior injuries and violence, the regulation of And now, sir, I come to the State of Georgiacommerce and other matters especially enumer- that great State which, if not now, is soon to be, ated in the Constitution; all other powers.re- the Empire State of the South. One glance at its'main in the individual States, comprehending history, as given by a judge of its own Supreme'the interior and other concerns; these combined Court, shows that, from 1792 to 1854, she main-'form one complete Government. Should there tained and enforced the same doctrine. In the'be any defect in this form of government, or any case of Chisholm against Georgia, in 1792, which'collision occur, it cannot be remedied by the was the first controversy between that State and sole act of the Congress, or of a State; the the Supreme Court of the United States, she de 3 nied its jurisdiction; refused to obey its man. that Georgia hung the applicants for the writ." date to appear and answer; and wholly disre- Ay, sir, hung them, with the writs of error of garded its judgment in the case. that court pending over the judgments. And in The cases of Worcester and Butler, missiona- the Tassels case, the Legislature passed a resoluries among the Cherokees, arose in 1832.. They tion, " that the State of Georgia will never so are fully reported in the 6th of Peters's Reports. far compromit her sovereignty, as an independThe facts in these cases are stated by Judge Ben- ent State, is to become a party to the case sought ning, in his opinion, in the 14th of Georgia Re- to be made before the Supreme Court of the ports, to which I have already referred: United States, by the writ in question;" and fur"They were indicted, convicted, and put in ther, that the Governor and every other officer'the penitentiary, for violating the laws of Geor- be " enjoined to disregard any and every man-'gia, which forbade white persons to reside date and process that has been, or shall be,'within the Cherokee nation of Indians without served on him or them, purporting to proceed'the permission of the Governor, and without from the chief justice or any assooiate justice having taken an oath to support and defend of the Supreme Court of the United States."' the Constitution and laws of Georgia, and up- And in 1854 the Supreme Court of Georgia, upoln rightly demean themselves as citizens thereof. a full review of her history upon this subject'The case occurred in the Superior Court of announced, as its settled conclusion,: that "the' Gwinnett county. A writ of error was issued Supreme Court of the United States has no juris-'from the Supreme, Court of the United States,i diction over the Szpreme Court of Georgia,'and canon the application of the defendants, to the not, therefore, give it an order, or makefor it apre-'judges of the Superior Court for the county of cedent."'Gwinnett. The clerk of that court returned a Mr. President, I do not question, I have no' transcript of the cases to the Supreme Court of right to question, the good faith or the integrity' the United States. But the judge of the of the action of the sovereignty of Georgia. I'court had nothing to do with this act of the do not indulge, either as a matter of taste or of'c erk. He did not recognise the right of the inclination, in language impugning the motives c Supreme Court to issue the writ. of men in high office, acting upon the solemnity "The Supreme Court of the United States, by of their oaths. The' motto of Old England,' Marshall, C. J., said that it was'too clear for has too much truth and significance for me to - controversy, that the act of Congress, by which do so, either in -public or private life. Be-' this court is constituted, has given it the power, sides, sir, having been reared in the republi-' and of course imposed on it the duty, of exer- can school of Jefferson and of Jackson, main-'cising jurisdiction in the case.' taining, as I now do, every principle I have "Accordingly, that court took jurisdiction, and been taught in that school, and which are'''adjudged that the judgment rendered in the identical with those of the Republican party' premises by the said Superior Court of Georgia,' of to-day, I. see many things in the opinion of' whereby the said Samuel A. Worcester is sen- the Supreme Court of Georgia to command my'tenced to hard labor in the penitentiary of respect.'Georgia, ought to be reversed and annulled; I say therefore, Mr. President, that the Rep-'and further' adjudged that said judgment'be, resentatives of those original States who have and hereby is, reversed and annulled;''and taught Wisconsin, one of the "youngest of the' that a special mandate do go from this court to sisters," to think for herself, and be true to her' the said Superior Court, to carry this judgment convictions, should be among the last to censure' into execution.' The judgment was the same or condemn her.' in the Butler case. But I come now at once to the consideration " Now, what did Georgia do on receipt of this of the precise issue between the Senator from' special mandate? Through every department of Georgia and myself, as it stands upon — the record'her Government, she treated the mandatedand the made up between us. When I moved the post-'writ of error with contempt the most profound. ponement of the further consideration. of this She did not even protest against jurisdiction, subject, that issue was in these words-I read'as she had done in the case of Chisholm's ex- from the first report, as it appeared in the Con-'ecutors; but she kept Worcester and Butler in gressional Globe. Mr. TooMas, while replying' the penitentiary, and she executed, in the Creek to Mr. HALE, used this language:' nation, the laws, for violating which they had " The Supreme Court of Wisconsin, in defiance'been put in the penitentiary."' of the Constitution, seized the case under a haBut Judge Benning, in the same opinion, says' beas corpus, and declared the fugitive slave law that it was not only in these cases that Georgia' unconstitutional, and discharged. the culprit. occupied this position; she did it in two other' I say there. is no analogy to that' in any of the cases, and those cases of life and death-the case' cases. of Tassels, and the case of Graves-one in 1830, "Mr. DOOLITTLaE. The assumption of the honthe other in 1834. The Supreme Court of the' orable Senator from Georgia, in one single word, United States " issued writs of error in each of' depends entirely on the question whether the' these cases, on the application of the defendants:'law:of Congress be or be not constitutional. to the State of Georgia; but, as the cases are not "Mr. TooMBS. Certainly. reported, it is to be presumed that these writs "Mr. DOO'LITTLE. If the law is unconstitutionnever got back to the Supreme Court; or that,' al, the whole proceeding in your District Court if they ever did, it was too late. It is certain' of Wisconsin is a nullity. 4 ~fMr. TOOMBS. Yes. sumption, that the law is not constitutional, if a "Mr. DOOLITTLE. And Wisconsin is right. If person is arrested under it and imprisoned, it'your law is constitutional, then the proceeding would be without any authority from the United'of the court of Wisconsin was wrong. States, and therefore a State court, upon habeas "Mr. TOOMBS. I have nothing to say of that corpus, must of necessity discharge the prisoner;' now." for he is not held by any legal power whatever. I I so understood it at the time, and it was, I ask, sir, what is the issue upon the hearing of a believe, so understood generally on this side of habeas corpus? The jurisdiction of a court in the Chamber. The next morning, however, the such case is not appellate. It is not for review; Senator from Georgia corrected the record, and it is neither to affirm nor reverse the judgment the issue was restated in these words. The Sen- or the proceedings of any other court or tribuator then said: nal. It is a suit to inquire into the cause of the " Whether or not the law was constitutional, imprisonment of a person restrained of his lib-' the proceedings of the State court of Wisconsin erty; and, if found to be illegal, to discharge.'I hold to be wrong. That did not depend on The very essence of the issue is to inquire'the question-of whether the fugitive slave law whether that imprisonment be legal or illegal,'was constitutional or not; but, in any event, with or without law. That is the question, and'-the District Court of the United States for Wis- the whole question in the case.'consin having had jurisdiction, there was no Let us, for once, take the negro question en-'power to seize the person from prison under a tirelyoutofthiscase, and forget that slaves or slahabeas corpus, and reverse the proceedings of a very ever existed. A habeas corpus case is a colcourt having competent jurisdiction; and so lateral suit to recover on'ls liberty from illegal' much of the report as makes me admit that, restraint; in the determination of which the pro~ in any event, whether the fugitive slave law is ceedings and judgments of all other courts and'constitutional or~ not, the proceedings of the tribunals may be inquired into, just to the same court of Wisconsin were right,;is erroneous. extent as in actions for false imprisonment, or in " Mr. DOOLITTLE. I shall not go into the dis- actions broughtto recover upon a judgment. The'cussion of this question now, as I purpose to Senator from Georgia says that, conceding the discuss that point on the future occasion to fugitive slave law to be unconstitutional, still the which I have moved that this matter be post- District Court of the United States has competent'poned. I simply desire to say, however, that, jurisdiction to imprison a man under it. What a'if the Senator from Georgia admits that the solecism! All the world knows that the District'law of Congress is unconstitutional, the District Courts of the United States are courts of special'Court has no jurisdiction under it; and the and limited -uridietion. They have just such'proposition which the gentleman submits, and power as the law gives them, and no more. Their'the distinction which he makes, that a law can whole jurisdiction is statutory, and depends upon'be unconstitutional and a nullity itself, and yet the acts of Congress; and they, in their turn, de-'the court have jurisdiction under an unconsti- pending upon, and subject to, the Constitution.' tutional law, is, in my judgment, preposterous. When you speak of an act of Congress, which is "Mr. TOOMBS.' I merely wished to state my itself unconstitutional, having any validity to'position, not to argue it. I am prepared to confer any jurisdiction, it is preposterous, a sole-'meet the argument at any proper time." cism, an absurdity. Sir, an unconstitutional law Mr. President, the issue is now clearly made is no law; it is a mere nullity. The Constitution up on both sides, and fairly understood. It is goes along with every enactment, erasing every a question of constitutional law, addressed to word, annulling every provision in that enactthe judgment, to the calm reason; and in dis- ment which is repugnant to itself. Every law cussing which, passion and declamation are of no passed by Congress is passed as if with a proviavail. It is a question altogether of more con- so attached to it, that anything herein repugsequence than the slavery question itself; and, nant to the Constitution is null and void. therefore, we can enter upon its discussion en- In cant phrase, it has force "subject only to tirely free from all the excitements which sur- the Constitution of the United States." If round that. The question between the Senator repugnant to that, it has no effect; it gives no and myself is this: in the first place, whether authority. The Constitution is the source of all any jurisdiction or authority can be conferred authority. Without it, no law of Congress upon a District Court of the United States by an could live, or move, or have any being. It unconstitutional law. I thank the gentleman for breathes into every enactment the breath of thus restating the issue; for, in my judgment, he life. No law has life without it; no power can concedes away the very ground upon which the be given, or jurisdiction conferred, without it. Supreme Court of the United States placed their What, sir I -hold that an enactment of Congress decision in 21 Howard. Upon the assumption can confer an authority upon anybody which the taken by that court, that the fugitive slave law Constitution itself, the source of all authority, is constitutional, the conclusion follows inevi- forbids? tably, that a person arrested under it, in pursu- Yet such is the doctrine of the Senator from ance of its provisions, would be imprisoned un- Georgia, that a citizen may be held in prison under the authority of the United States; and a der the authority of a law of Congress, when the State court, on habeas corpus, must of necessity Constitution itself forbids that there should be remand the prisoner into custody, because he is any such law. Go tell the people of Georgia that in legal imprisonment; but upon the other as- her Senator contends that Congress can give to the United States District Courts competent ju- tion of the Constitution of the United States; is risdiztion over suits between the citizens of illegal and unconstitutional; that the whole preGeorgia, and over a subject-matter which the tended judicial proceedings are absolutely null Constitution of the United States itself forbids: and void; gave no jurisdiction whatever to the it might be actions for assault and battery by court, and, therefore, no authority for the imslaves against their masters. That is a higher- prisonment of the defendant. law doctrine for you, with a vengeance! The The Senator from Georgia says that, " whether United States courts, then, are above the Consti- the fugitive slave law was constitutional or not," tution, and not under it. Let us test this doc- the District Court had "competent jurisdiction." trine by a practical case. Suppose the Congress That is begging the question. The court canof the United States, under the general-welfare not take competent jurisdiction of a subjectdoctrine, should enact a law conferring general matter which the Constitution forbids; it is imoriginal jurisdiction upon the Supreme Court of possible; for if it have not jurisdiction of the the United States, of all suits at law or in equity, bubject-matter, the action of the. court is of no and between citizens of the same State; and that more validity than the. action of: a private citiin Georgia, or in Wisconsin, one citizen should zen; it is not judicial action; it is extra-judicommence a suit in the Supreme Court of the cial —the action of an individual without any United States against another for an action of authority; for a statute against the Constitution slander, and the case should be brought on to confers no more than if Congress had never gone trial, and a judgment should be recovered, and through the forms of enacting it. It is reasoning an execution issued upon the judgment, and a in a circle, begging the whole question. It is citizen arrested and put in prison-what would precisely like saying that the earth stands on the be the duty of the State courts? If application back of an elephant, and that on a turtle, and were made for a habeas corpus, the petitioner that on notbingat all. would set out in substance that he was restrained Mr. President, a case arose in the State of New of his liberty without any legal authority. The York, when Mr. Marcywasajustice of the Supreme marshal would answer, by his return, that he Court of that State, in a suit brought upon ajudgpretends to hold him by an execution upon a mentwhichpurported to have been rendered in the judgment of the Supreiie Court of the United State of Massachusetts. Onthe face of the record, States; and the reply, the unanswerable reply, it appeared that the court had jurisdiction of the would be, on the part of the petitioner, the Con- person as well as of the subject-matter. The stitution forbids any such judgment, because it defendant pleaded that' the court, in fact, never forbids Congress to give, or the c:ourt to take, had any jurisdiction over him, for he was not any such jurisdiction. The duty of the State served with process, and did not appear. It.was court in such a case would be clear. It being objected that the record imports absolute verity, sworn to support the Constitution of the United and cannot be contradicted. What -did Mr. States, it would be its duty to declare that such Marcy say to such an argument? an imprisonment, under such a judgment, under "'It appears to me, that this proposition assuch a law, is in violation of the Constitution of I sumes the very fact to be established, which is the United States, and absolutely void; that so' the only question in issue.' For what purpose far from acting in pursuance of the Constitu-' does the defendant question the jurisdiction of tion, and within the authority of the United' the court? Solely to show that its proceedings States, the Federal court rendering such a judg-'and judgments are void, and therefore the supment is trampling on the provisions of the Con-' posed record is not in truth a record. If the stitution, and usurping a jurisdiction forbidden'defendant had not proper notice of, and did by it. The State court would therefore discharge' not appear to, the original action, all the State the prisoner from confinement.'courts, with one exception, agree in opinion Sir, instead of a habeas corpus case, suppose'that the paper introduced, as to him, is no you take the case of an action for false imprison-' record; but if he cannot show, even against the ment; suppose that this person, who was im-'pretended record, that fact, on the alleged prisoned under such a judgment, should bring' ground of the uncontrollable verity of the an action in a State court, against the indi-' record; he is deprived of his defence by a providual who holds him, for damages in conse- cess of reasoning that is to my mind little less quence of false imprisonment, and the defend-' than sophistry. Theplaintiffs in effect declare ant should plead his pretended judgment and'to the defendant; the paper declared on is a execution, and the plaintiff should at once reply' record, because it says your appeared, and you that the Constitution of the United States forbids' appeared because the paper is a record. This that Congress should confer any such jurisdic-' is reasoning in a circle. The appearance makes tion upon the Federal court, what would be the'the record uncontrollable verity, and the record duty of the judges:of the State court? Of neces-':makes the appearance an unimpeachable fact. sity, there would be a responsibility from which' The fact which the defendant puts in issue their. oaths of office would not allow them to'(and the whole current of State authority shows withdraw themselves; they could not avoid the' it to be a proper issue) is the validity of the jurisdiction if they would; and I, for one, would'record; and yet it is contended that he is estopnot, if I could.'hey must take the jurisdic-'ped, by the unimpeachable credit of that very tion belonging to the State court, and declare record, from disproving any one allegation conthat such an imprisonment, under such a judg-'tained in it. Unless a courtlhas jurisdiction, it ment, based upon a law conceded to be in viola-' can never make a record which imports utncontrol 'table verity to the party over whom it has usurped doctrine of the Senator from Georgia would'jurisdiction, and he ought not therefore to be operate upon us. We have nearly eight hundred' estopped by any allegation in that record from thousand people, and we have no Circuit Court'proving any fact that goes to establish the of the United States. Practically, we have no'truth of a plea, alleging want of jurisdiction."- appeal whatever from the District Court in any Starbuch vs. Murray, 5 Wen., 158. criminal case. Under the law as it stands, juSir, upon the ground taken by the Senator, risdiction enough is given to the judge of the although the law itself be unconstitutional, and District Court of Wisconsin, even within constican give no jurisdiction to the court over the tutional limits. The same judge can indict and subject-matter, still its pretended record is an try and decide upon all questions of evidence, all unimpeachable verity. It is a record, because it questions of law involving the liberty, and even has jurisdiction, and it has jurisdiction because the life, of any citizen of Wisconsin, and there is it is a record; and that, too, when the Constitu& no appeal from his decision-none whatever. tion says it shall neither have jurisdiction nor Apply the doctrine for whi,:h the Senator from make a record. Upon this doctrine, no State Georgia contends, that the judge of that court court can inquire into the question of jurisdic- may, with or without constitutional authority, tion. or go behind the warrant, and the man with law or against law, by his own simple warmust lie and rot in prison before any inquiry can rant, arrest and imprison any one of our citibe made into the legality of his confinement. It zens, and that the State courts of Wisconsin may not be out of place to illustrate this grare have no power to interfere: where are we? His question between the Supreme Courts of the doctrine would go to the length of allowing that States and of the United States by referring to single judge-I do not desire to speak with any what is said to have occurred once in the State disrespect towards the individual who holds the of New York, in a justice's court: by statute, office; but I am speaking of the doctrine which that court had jurisdiction to render judgments the Senator from Georgia contends for; and that in civil- actions for damages to the amount of is, that this single judge, by his own mere will, $100, but no jurisdiction in an action for assault may arrest and imprison any one of our citizens; and battery. In the immediate neighborhood that no writ of habeas corpus can reach him in of an honest citizen in the country, who had prison, or reach him even at the foot of the galjust been elected a justice of the peace, an out- lows. Talk to me, sir, of absolute despotism, of rageous assault and battery occurred. Upon power without restraint! If you apply this docthe instant, the injured party applied to him trine to the District Court of Wisconsin, there is to commence a suit for damages. He is- not a despotism this side of Algiers that would sued his warrant, brought in the defendant, compare with it. No, sir, nowhere in any civilall the witnesses were at hand, and the case ized land. Where do we stand, when we hear went right on to trial without counsel on either doctrines like this avowed? In the United States side. Without any question as to his jurisdic- of America, or in St. Petersburgh, where the tion, the magistrate heard the cause, and gave will of the Autocrat is the absolute law? judgment for the plaintiff for $100. The defend- Sir, the Supreme Court of Massachusetts has ant had no money, and the justice forthwith declared that tio limitation of time shall run issued an execution and sent him to jail. Some against showing a judicial proceeding to be void young lawyer got hold of the matter for the de- f,)r want of jurisdiction. (Holyoke vs. Haskin, 9 fendant, and wrote at once to the justice that he Pickering.) The Supreme Court of South Caromust come and settle with the defendant, or he lina maintains the same doctrine; and so does the would be prosecuted for false imprisonment. He Court of Appeals of the State of New York. I went immediately to the county seat to counsel will venture to say that, in every Supreme Court with a lawyer, who had been a judge of some of the States, and the Supreme Court of the eminence. As soon as fairly seated in his office, United States itself, the doctrine has been prohe said: "'Judge, can a magistrate try an action claimed a hundred times over, that where a for assault and battery, and render a judgment court proceeds without jurisdiction of the subagainst the defendant?" "Certainly not; the ject-matter, its whole proceedings are absolutely statute expressly forbids it." "' Do you say that void-not voidable —to be reversed if carried up he can't try one, and render a judgment? I tell on a writ of error to a superior tribunal; not you I know he can, for I have tried one and ren- that they are to stand as valid until reverseddered a judgment." [Laughter.] Did that but that they are absolutely nullities, and of no magistrate have jurisdiction because he said he more effect than if a private individual should had jurisdiction? Is the doctrine to be tolerated pretend to render a judgment in either a civil or for an hour, that a court of special and limited criminal case. jurisdiction, as all courts of the United States I come now, Mr. President, to the second are, shall have jurisdiction because it takes ju- branch of this legal or constitutional issue berisdiction? Where are we living? in a free tween the Senator and myself, asto whether the country, where even the courts are bound by the fugitive slave law is or is not constitutional. I laws of the land? or are we living where men do not propose, at this time, to go into an elabocan be imprisoned at the simple will of the rate argument of my own, to defend the grounds magistrate, with or without jurisdiction, with or which have been argued by the judges of the without law? Supreme Court of Wisconsin. Their opinions Mr. President,4let us take the United State4 Jhall speak for themselves; and they are fully District Court for Wisconsin, and see how this able to defend themselves. I shall therefore con tedrt myself wi h reading from them some ex- Court of Wisconsin in three different ways. Mis. tracts. Before doing it, however, it is due to fortunes, it is said, seldom come singly; and it so candor and the truth of history for me to say happened, that in the spring of 1854, when the that our Supreme Court was organized in 1853. excitement growing out of the attempt to repeal Our judiciary is elective, and the judges of the the Missouri compromise was raging, and the Supreme Court, three in number, were chosen whole country was convulsed by a renewal of before the Republican party was organized. Two the slavery agitation in~ its most violent and of them, Smith and Crawford, were members of malignant form, a fugitive slave from Missouri the Democratic party; and neither of them, to was arrested, under circumstances, as alleged, of this day, has been identified in political action very great cruelty. It is said he was knocked with the Republican party. The chief justice, down with a bludgeon, and taken, with his head however, (Whiton,) was a member of the Whig wounded and bleeding, to the city of Milwaukee. party, so long as that had existence, the party to An intense excitement followed, and he was which the Senator from Georgia belonged. But rescued, as it is alleged, by Booth, Rycraft, and upon the reorganization of the Republican party, other citizens of Wisconsin, and escaped. The he affiliated with that, so far as he acted at all United States commissioner of the District Court in any political capacity. immediately issued a warrant to arrest Booth for Sir, I may say that I know the character of an offence under the fugitive slave law, and he that man, and know it well. Almost all of my was taken into custody by Ableman, the marlegal practice, when I first went to the State of shal. Justice Smith, one of the judges of the Wisconsin, was before him as judge of the first State Supreme Court, who resided at the city of judicial circuit; and when he was elevated to Milwaukee, upon the petition of Booth, issued a the bench of the Supreme Court of that State, I habeas corpus to inquire into the legality of his was elected as his successor. I know his char- imprisonment-a duty which his oath to support acter among the people of that judicial district, the Constitution, both of Wisconsin and of the comprising more than one hundred and fifty United States, required him to do. Had he failed thousand inhabitants. I know also his charac- to do so, he would have subjected himself to the ter throughout the' State among the members severe penalty of $1,250; that being, so far as I of the bar of Wisconsin, parties and suitors, know, the only judicial act whereby a judge of for he was an old resident of that State. He the' highest court of a State may subject himself took part in the revisal of the statutes of the to a penalty-the denial of the writ of habeas Territory as early as 1839. He was a member coi'nps. The p/isoner was brought, and a hearof the Convention which framed the Constitution ing was had before Judge Smith. The case was for that State; and for more than twelve years fully cohsidered, and Booth was discharged from he has faithfully discharged the duties of the imprisonment, upon four grounds: first, beoffice of.judge, either of the Circuit or Supreme cause the warrant on its face did not sufficiently Courts, and sometimes of both. He was a wise state any offence under the act itself; second, and able judge; and a more pure, upright, or because the act itself was repugnant to the Conhonest tnan never sat ulpon a bench in any court, stitution of the United States, in clothing mere nor ever wore the judicial ermine. Not a year commissioners with judicial powers; third, behas elapsed since he died, hardly past his merid- cause the act was repugnant to the Constitution ian, full of honors, beloved by all. The State of the United States, in denying a jury trial to a mourned his loss as it has mourned for no other person claiming to be a free inhabitant of Wisman, and as States seldom mourn at the bier of consin; and fourth, because the Constitution of the departed dead.' the United States gives Congress no power to I have felt at liberty thus to speak of the char- legislate upon that subject. The marshal caracter of the dead. Of the two other judges, ried this decision up'to the Supreme Court of neither of whom is'now upon the bench, but Wisconsin by certiorari, and it was sustained both of whom are engaged in their profession, unanimously in full bench, Chief Justice Whiton I do not feel quite the same freedom, not because delivering the opinion of the court, concurring they have not acted with the Republican party, in the first three grounds taken by Justice Smith but because I do not choose to draw comparisons upon the hearing, but expressing no opinion as among the living. It is but simple justice to to the fourth; Justice Crawford concurring only them to say, however, that they stand in the front in the first, and dissenting upon the grounds rank of the legal profession of Wisconsin. Let which involved the constitutionality of the act. the Senator from Georgia carefully read the In January following, Booth and Rycraft were opinions of Judge Smith'in the several cases of indicted for the same alleged offence in the UniBooth, Ableman, and Rycraft, to be found in the' ted: States District Court. Booth was arrested third volume of Wisconsin Reports, and he will upon the warrant of the judge, and taken into find that they need no eulogy or endorsement. custody. He again applied to the State Supreme They speak for themselves. They bear the im- Court to issue' a writ of habeas corpus, which was press of a master mind, and would have been no unanimously refused by the Supreme Court, discredit to Chief Justice Marshall or to Lord upon the ground of judicial comity, the court Mansfield himself. holding that- Before reading any extracfs from these opin- "The courts of the United states are preions, I will briefly state the facts of the case, and q' umed to be competent to hear and determine the points taken and decided by the several' upon the matter of their own jurisdiction, and judges. This ca;:e came before the Supreme'although other courts are not, in all cases, 8' bound by such decision, yet no court is author-' and without in any manner citing him to ap.' ized to take the matter out of' another, whose' pear, either by service of mesne process or oth-'^process has first attached, and assume the' erwise, the court had proceededexparte, and ren-' right of adjudication before the former has had'dered a judgment against the defendant,surely' an opportunity to determine the matter for it-' we should be justified in treating the proceed-' self."-3 Wisconsin Reports, 145.' ing as coram non judicc. He went back into the custody of the District. " Now, the return made by the sheriff of MilCourt. Afterwards, Booth and Rycraft were tried'waukee county in this case contains a record in the United States District Court, convicted,'of the proceedings in the District Court, in and sentenced to fine and imprisonment. As I which this relator was convicted and sentenced have said, the law, as it now stands, practically'which not oldly-takes away mere presumption, gives no appeal whatever, in a criminal case,' but incontestably shows that the District Court from our United States District Court. After' had no jurisdiction of the subject complained sentence andl imprisonment, application was' of in the counts of the indictment upon which made by them to the Supreme Court of Wiscon-' he was convicted; and, if this position be true, sin for a writ of habeas corpus. It was allowed;' we may appropriately use the language of and the case was heard in full bench before the' Judge Evans in the case of Hill vs. Robertson, same judges, and the prisoners discharged out of' (1 Strobhart's Law Reports, 1.) It would be a custody. Judge Crawford, while dissenting from' waste of words to attempt to prove that the the other two judges on the constitutionality of' proceedings of a court of limited jurisdiction, the fugitive slave law itself, agreed fully with'in a case clearly without its jurisdiction, are them as to the power and duty of the State court'absolutely void, and may be so declared, whento inquire into the legality or illegality of their' ever the question is presented, whether directly imprisonment. To do him no injustice, I will' or collaterally."-Wisconsin Reports, volume 3, read some extracts from his opinion:'page 181. " The simple question which attracts my atten- Ciief Justice Whiton concurred in these views'tion in this case is, whether the District Court of as expressed by Justice Crawford, and he, also,'the United States for this district had jurisdic- in that case, reaffirmed the views which he had'tion of the offence of which this petitioner was declared in the case when it first came before the convicted in that court; because, if it had such court:'jurisdiction, it matters not how illegal, unjust, It is not my intention on the present occa-' or arbitrary, the proceedings in that court Smy' sion," he says, "to say anything on that sub-'have been, nor how many errors may have been''ject, (' the constitutionality of the fugitive slave' committed upon the trial;. if the court had ju-' law;') as my views in regard to it are unchanged,'risdiction of the subject, and of the person'a further discussion of the questions growing'charged, it is by no means my duty as a judicial' out of the act, by me, is wholly unnecessary."'officer of this State to revise the decision or After stating that he concurred fully with Jus-'correct the errors of that court in a case prop- tice Crawford in the views expressed by him in' erly within its cognizance. That is the function the extract which I have read from his opinion,: of a superior Federal tribunal, if such revising the learned chief justice continues:'power were provided or given or deemed neces- "If the conclusion arrived at by Justice Craw-'sary by Congress.' ford, that that court had no jurisdiction to pro" The District Court of the United States for' nounce a judgment, is correct; in other words, this district is a court of special or limited ju-' if the pretended conviction of the petitioners,'risdiction. It can take cognizance of offences' and the judgments against them, are mere nul-' punishable by the laws of the United States,' lities, it seems clear that they ought to be dis-'and of such offences it has exclusive jurisdic-' charged, if this court has the power to distion; but it possesses no power to take cogni-' charge them."' zance of or punish offences against the laws of " It will not be denied that the Supreme Court'the State. Of these latter, the State tribunals' of aState, in which is vested, by the Constitution'have a jurisdiction equally as exclusive as is' of the State, the power to issue writs of habeas' the jurisdiction of the Federal courts over of-' corpus, and to decide the questions which they' fences provided for by the laws of Congress. It' present, has the power to release a citizen of cannot be necessary to refer to authorities to' the State from illegal imprisonment. Without sustain this position. It is a well-settled prin-'this power, the State would be stripped of one' ciple, that courts of inferior or limited j urisdie-' of the most essential attributes of sovereignty,' tion, which do not proceed according to the'and would present the spectacle of a State'course of the common law, but derive their spe-' claiming the allegiance of its citizens, without' cial authority from statutory provisions, are con-' the power to protect them in the enjoyment of' fined strictly to the exercise of those powers' their personal liberty upon its own soil. Were'conferred upon them, and the facts necessary' we to be told that we are without this power'to give them jurisdiction must appear affirrna-' in a case like the present, we should be obliged' tively on the face of their proceedings, and can:-' so to hold in a case where not even the forms'not be presumed."'*' of law were observed; when, for instance, a "Suppose, for instance, that a judgment rec-' citizen of this State should be thrown into'ord, coming from a court of general juris diction,' prison, by the arbitrary order of a judge- of a' should disclose the fact, that without affording' court of the United States, without a trial.' the defendant an opportunity to Nmke & defeaces "In my opinion, the State Governments and 9 State courts are not reduced to this humiliating "We are awar6 that it has been said that'condition. They are not obliged to look on' slaves are not persons in the sense in which'and see the citizens of this State imprisoned for'that term is used in the amendment to the no lawful cause, without the power to grant' Constitution above referred to. But this, ad-' that relief which all Governments owe to those' mitting it to be true, does not affect the quesfrom whom they clltim obedience, The peti-' tion under consideration, as persons who are free' tioners must be discharged."' are liable to be ariested and deprived of their liberty Again, he says:' by virtue of this act, without having had a trial "Tha Supreme Court of a State, which has' by a jury of their peers. We do not propose to'power to issue the writ of habeas corpus, and to' discuss the question, whether a slave, escaping ~ decide the questions which the writ presents,'from the State where he is held to service or' has the power to discharge a citizen of a State'labor into a State where slavery does not exist,' from illegal imprisonment." thereby becomes free by virtue of the local law, And an imprisonment under a law of Congress' subject only to be delivered up to be returned which the Constitution forbids is an illegal im-r' again to servitude, as it is a question not neprisonment, for there is no law authorizing it:' cessarily involved in the consideration of the "This immunityof the judgments of the courts' subject before us. But we propose to examine'of the United States, in criminal cases, from' the operation of the act upon a free citizen of a examination by other tribunals, is not claimed' free State, and to show that by it such a person'for their judgments in civil cases. If an action' may be deprived of his liberty without'due'is brought in a State court upon a judgment'process of law.' " recovered in a court of the United States, or it After pointing out, in a clear and forcible such a judgment is drawn collaterally in ques- manner, the mode of operation under the act by'tion on the trial of a suit in a State court, the which a free person in Wisconsin may, without'State court has the power, and it becomes its hearing or trial, be adjudged in another State to duty, to decide what effect shall be given to it. be a slave, he continues:'The State court does not, of course, possess the "We are at a loss to perceive how this pro-' power to reverse the judgment, but it does pos-' ceeding, by virtue of which a freeman becomes sess the power to decide what effect it shall' a slave, can be justly called'due process of' have upon the case pending before it."'law,' in the sense in which that language is Sir, it does not possess the power to reverse a' used in the Constitution."-3 Wisconsin 66, 68. judgment; but it has the power to say that if a Question the soundness of these opinions of court undertakes to give a judgment in a case of that able and upright judge if you will; confute which it has no jurisdiction, there is no judg- them if you can; but where, I ask, is there any ment; it is coramn on judice, and absolutely void: evidence of bad faith, of, corruption in office, " Having jurisdiction [says ChiefJustice Whi- of official." pe~iury," of raising. "blood-stained'ton] to try that suit, it has the power to decide hands over a violated Constitution?" That' every question which the suit involves. This Senator owes it to himself, to this Senate, to the' power of courts, whether State or Federal, to State of Wisconsin, and to the sacred memory of'decide what effect shall be given to the jsdg- the dead, to take back every word that he has' ments of other courts, when drawn. in question uttered on this floor, calculated to impugn, in'in cases which are on trial before them, I have the least degree, the integrity, the unimpeach-'never heard questioned. That they have the able integrity, of that distinguished judge who power, is too plain for argument."-3 Wiscon_- pronounced the decision of which he complains.'sin, 175-7. Justice Smith concurred with Crawford and He also reaffirmed the views which he ex- Whiton, and went still further, and, in one of pressed when the case was first before the court the ablest judicial opinions I have ever read, in relation to the constitutionality of the fugitive discussed the whole subject of the relations of slave law of 1850. I will read an extract from the States to the Federal Government; entered his opinion in that case: into that great battle of the giants-that ever"We are of opinion that so much of the act recurring struggle between those opposing and of Congress in question as refers to the com- enduring forces in our system of Government,'missioners for decission the questions of fact Federalism on the one hand and Republicanism'which are to be established by evidence before' on the other. Sir, so far from any attempt, on' the alleged fugitive can be delivered up to the his part, to trample under his feet the Constitu-'claimant, is repugnant to the Constitution of tion of the United States, he declares that-'the United States, and therefore void for two "The Constitution of the United States is the reasons: first, because it attempts to confer upon' fundamental law of the land."-3 Wisconsin, 13.' those officers judicial powers; and second, be- He knows no higher law. IIe does not believe'cause it is a denial of the right of the alleged that a law of Congress, in violation of the Con-'fugitive to have those questions tried and de- stitution, can confer jurisdiction upon any court'cided by a jury, which we think is given him otf the United States, and especiallyuponaDistrict'by the Constitution of the United States." * Court of the United States, one of mere limited'* * "The fifth article of amendments to and special jurisdiction. But again, he says:'the Constitution of the United States provides, "I recognise most fully the right of every citiamong other things, that'no person shall be' zen to try every enactment of the Legislature, deprived of life, liberty, or property, without' every decree or judgment of a court, and every due process of law.' " *:*'proceeding of the executive or ministerial de 10'partment, by the written fundamental law of' I have for that high tribunal, I must:be per-'the land. This must be done in a proper and' mitted to say that no man or body of men is' legal manner, in conformity with the rules pre- L made by the Constitution the keeper of my con-' scribed by that same law, or.in accordan e with' science; nor does it impose upon any man or'its provisions; but no law is so sacred, no offi-' body of men the fulfilment of my official oath' cer so high, no power so vast, that the rule and'and obligations, or the power of releasing me'line of the Constitution may not be applied to'therefrom." A'them." Mr. President, I shall trespass on the patience And again, in speaking of the responsibility of the Senate but a short time longer in reading which rests upon him as a judge of the Supreme extracts from these opinions; but I desire to call Court of a State, sworn to support both the Con- their special attention to the language of Justice stitution of the United States and the Constita- Smith which I now read: tion of Wisconsin, he uses this language: SE T 1 Hi.s s *, P The power to guard and protect the liberty,'I would gladly escape the responsibility of The power to guard and protect the liberty deciding upon a question so grave. It would' of the individual citizen is inherent in every d ceciding upon a question so grave. It wouldG s' be a much more easy and quiet course to stop which was reserved which t cannot relinquish;' here, if I could reconcile such a course with me'sense of duty." * * * "But he who taks, never granted to the Federal Government; has a solemn oath to support the Constitution.'never been claimed by it or for it; but has.a solenn oath to support the Constitut.on of' always been-conceded to the States. without'the United States as well as of the State ofconceded to the States, without Wisconsin, is bound by a double tie to the na-'which they could not exist, because it is obvition and his State. Our system of government ous that they could claim no allegiance or sup-'isw d oiour ale..Federal' port from their citizens, whom they had not the is twofold, and so is our allegiance. Federal' power to-protect. officers feel less of this, because their oath power to protect..).1..."If, theretore, it is the duty of the State to' binds them only to the Constitution of the f bUnited States'y but State officers have the guard and protect the liberty of its citizens, it Unite States. but State officers.ave- te'must necessarily have the right and power to weight of both resting upon them. To the lat- must necessarily have the right and po ter is peculiarly the duty assiinquire into any authority by which that liberty ter is peculiarly the duty assigned, or rather' is attempted to be taken away. But thepower'upon the latter, of necessity, does the obliga- ato inquire includes the power to decide. The tion rest, of ascertaining clearly, and of assert-'rightof the sovereign to demand by what author-'ing firmly, the peculiar powers of both Gov- right of the sovereign to demand by what autho ernments, a. c e b.e'ity such imprisonment is attempted, implies the ernments, as circumscribed by the fundamental obligation and duty of the person imprisoned'law of each. To yield a cheerful acquiescence' obligation and duty of the person imprisoned, law of each. To yield..heerful.cgulessence' to respond: the right to demand such authority in, and support to, every power constitutionally to respond; the right to demand such authority'eXercd by te Fdel G,'on the one hand, implies on the other the duty exercised by the Federal Government, is the to.xhibit.iL' sworn duty of every State officer; but it isto exbt,,ondt feeytit is.,,.."The States and people thereof have delegaequally his duty to interpose a resistance, toted to the Federal Government the power to' the extent of his power, to every assumption of imprion the citizen in certain ases but in'power, on the part of the General Government imprison the citizen in certain cases, but in power, on the part of the General GoVernment,'which is not expressly granted, or necessarily' actother. So fart then, as thatGovernment' implied, in the power thus delegated, the States nimplied, 2.in the Federal Constitution.-3 Wis- cannot interfere to protect the citizen; but in So far from Justice Smith, who went beyond'every other case tbey not only have the power, So far fro Justice Smith, who went o but it is their solemn duty, to interpose their the other two justices of the Supreme Court of authority. As the power by which the Federal Wisconsin, ever declaring that the State court Governmentcan imprison is a delegated power, of Wisconsinl wvas prepared to treat the decision Government can imprison is a delegated power, of Wisconsi was prepared to treat t he decision it must necessarily appear, in every case where of the Supreme Court of the United States, as it imprisons, that it is actingin conformity with the Court of Georgia declared that they had It mut be nominated done, with "contempt the most profound," he some:power delegated. Itmustbe'nominated done, with contempt the most profound," he in the bond.' Its jurisdiction is never preuses altogether different language when speak- sumed,but must always affirmativelyappear. ing of the decisions of that Federal tribunal: st always affirmatively appe 3 Wisconsin, 193, 194. "I am willing that the decisions of the Su-' preme Court of the United States, in every case Having read a brief extract from his opinion,'determined by them, within the scope of their bearing on the question of the power and duty'jurisdiction, should be regarded as full and of the State court to inquire into the causes of' binding authority, as the law of the l;articular imprisonment, shall now read one or two ex-'case so determined. But when it is strenuous- tracts on the subject of the constitutionality of'ly contended that I am compelled to adopt their the law of Congress, under the clause of the'interpretation of the Constitution and laws of Constitution in relation to the rendition of fugi-'the United States and of their own powers and tives from service or labor. That clause is as' the powers of Congress, without thought or in- follows:' quiry-to take L'that is written is written' as the "No person held to service or labor in one'end of the law, simply because it is written,' State, under the laws thereof, escaping into'that my own conscience and oath must be' another, shall, in consequence of any law or'tamely subjected to the prescriptions of another' regulation therein, be discharged from such'tribunal, governed by the same laws and bound' service or labor, but shall be delivered up -on'by the same oath; notwithstanding the high' claim of the'party to whom such service or'respect, approaching even to veneration, which' labor may be due." Speaking of this clause, the learned judge' one else can interfere with him. If no caim is said:'set up to his service or labor by the person to " It is admitted that the States can pass no law' whom his service or labor is due, there is no'or regulation by which the fugitive'from ser- power, or authority, or person, on earth, that'vice or labor may be discharged therefrom. It'can derive any advantage from his former con-'is further admitted, that a duty is enjoined' dition, or assert it to his prejudice. So long' upon the States to deliver him up, on claim of' as the ownerdoes not choose to assert his claim, the person to whom such service or labor is'the cottage of the fugitive in Wisconsin is as'due. This covenant or compact has the force' much his castle-his property, liberty, and per-'of constitutional law; and no State law repug-' son are as much the subject of legal protection,'nant to its provisions can be valid, but every' as those of any other person. Our legal tribu-'such law is void." * * *'nals are as open to his complaint or appeal as " Let it be taken for granted that this clause'to that of any other man. He may never be' ws intended to refer exclusively to fugitive' clained; and, if not, he would remain forever slaves, of which, I think, the history of its free,, and transmit freedom to his posterity born' adoption into the Constitution leaves no doubt;' on our soil."-3 Wisconsin, 16, 17.'the ques ion at once arises, how far, and in One more extract on this clause of the Constiwhat particulars, does it affect the persons al- tution:'luded to in it? 1. It contemplates the fact that " Its fair scope and true intent do not require certain persons were, or might be, held to ser-' of the free States any recognition of the owner'vice or labor in one or more States, under the' of the fugitive in him as property. That was'laws thereof. 2. That it was by the laws of' never required of them, and would have been such State or States alone, under which such'scouted had it been proposed. The clause sim-'persons could be held to service or labor. 3.' ply requires that the States into which thefaThat the laws or regulations of the respective' gitive shall escape shall not discharge him from'States under which such persons might be held' service, but deliver him up. He is recognised'to service or labor, or discharged therefrom,' simply as a person owing service, not as a chat-'might be different. 4. That such persons might' tel, or as any species of property to be sold or'escape from one State, in which they were held' bartered. In Virginia, he may be, indeed, a'to labor under the laws thereof, into another' chattel; but in Wisconsin he is a MAN. The'State, in which such persons were held to labor' laws of Virginia make him a chattel there; but' under different laws, or in which they were, by'the Constitution of the United States and the'the laws of the State, discharged from service'laws of Wisconsin regard him as aperson here.'or labor. 5. That the service or labor here' Under the Constitution, the fugitive leaves the'spoken of is of a kind which is exacted of such' attribute of the chattel behind him in the State' persons by law, and not of a kind stipulated for' from which he flees, and goes forth as a PERSON. by contract, and hence is in restraint of, and' The law which makes him property in Virginia'derogatory to, human liberty. 6. That such' does not go with him beyond the limits of that persons, escaping from one State into another,' State. On his escape from such limits, he'should not be discharged by the laws of the' ceases to be property, but is a person liable to'State to which they may have fled; but that'be reclaimed. Theperson may escape, but the'the condition of the fugitive should remain the'property cannot. The States are no more bound'same in the State from which he had fled, in'to recognise the fugitive slave as property, than' case the person to whom he owed the service'a fugitive apprentice as property. The relation' should choose to claim him and convey him' of master and servant is recognised so far, and'thither. 7. That in the event of a claim by the' so far only, as the obligation of service is imperson to whom the fugitive owed the service' plied from such relation."'under the laws of the State from:which he fled, I will suppose this case: by the common law'being made, he should be - delivered up on es- of all the States, a child is subject to its parents'tablishing the fact that the labor or service of until it arrives to the age of twenty-one years.'the fugitive was due to such claimant. Suppose some one of the -States should pass a ~ "From this analysis of the clause of the Fed- law by which, at the age of fifteen, every child' eral Constitution above quoted, it will be seen should he emancipated from its parents; and that the status of the fugitive is essentially dif- that a child over the age of fifteen, and under'ferent in this State from his status or condition the age of twenty-one, should escape from one of'in the State from whence he fled. In the lat. the other States into the State where such a law' ter, he remained subject to all the disabilities had been enacted, would the parent claim that'of his class, though he may have escaped from child as property, or would he claim it simply be-'the domicil or premises of his master. Here, cause, from the relation he bears to the child, he'he is entitled to the full and complete protec- has a right to the custody of its person, and to tion of our laws, as much so as any other hu- its services, until it is twenty-one years of age?' man being, so long as he is unclaimed. He may But, to continue:'sue and be sued; he may acquire and hold "The relation of master and servant is recog-'property; he is, to all intents and purposes, a' nised so far, and so far only, as the obligation' free man; until a lawful claim is made for him;' of service is implied from such relation. Even' and this claim must be made by the person to' such obligation is not recognised as full, comwhom his service or labor is due, under the' plete, present, and operative, butas attaching to'laws of the State from which he escaped. No' that relation in another State. So much of the 12' law of the State from which he fled as required' said that a person escaping into another State,' of him service to his master there is to be regard-' and becoming, therefore, within the jurisdic-'ed, and fcom that obligation of service, imposed' tion of that State, shall be delivered up, it'by that law, the State may not discharge him.' seems to me the import of the passage is, that The law of Virginia, which requires of the slave'the State itself, in obedience to the Constituservice to his master, is recognised as the law' tion, shall cause him to be delivered up. That'there, not here. We may not discharge a fugitive' is my judgment.. I have always entertained' from service which, by law, he owes in Virginia.'that opinion, and I entertain it now."-ConBut by that law he owes no service here. The gressional Globe, vol. 21, part firest, first session,'master may capture him in Wisconsin. We Thirty-first Congress,p age 481.' must deliver him up to his master on the es- I am informed that Judge Butleri of South'tablishment of his claim; but his master has no Carolina, and, I believe, Mr. Calhoun, also, were'right to command his service in Wisconsin. He of the same opinion upon this clause in the Con-'must not beat him. He may take him back to stitution, as an original question. It seems to' Virginia; but he cannot command his service me that such must be the fair construction given here. When he gets to Virginia, he will owe to it by every mind brought up in the sturdy'service by the law of that State, but not till then. school of old Republicanism. The question is, By the law of that State, he owes the service, indeed, a grave one, and not without its difficul-' and by that law only. That is the law of Vir- ties. The weight of judicial authority, I con-'ginia, but not the law of Wisconsin. If the fess, is on one side; but the weight of reason is master demand service here of his fugitive, and upon the other. The Supreme Court of Wiscon-'beat him for disobedience, he is punishable by sin deemed it their duty to yield to the latter, our laws. Nor could the master, having cap- andto construe the Constitution, under the rule tured the fugitive in this State, sell or hire him of General Jackson, as they understood it, and'to another. IIe has just the control over him not as it was understood by others. While the'requisite to his extradition, and. no more. He Supreme Courts in other States, and lately in the'.may relinquish that right, and so emancipate State of Ohio, I believe, have held otherwise,'him; for such relinquishment would operate and have yielded to the weight of judicial au-'emancipation; but he cannot sell and transfer thority, a large majority of the Republicans his right of extradition to another." of Wisconsin maintain the views expressed by Mr. President, I dare not trespass longer on their Supreme Court. It is equally true, at the the patience of the Senate by reading extracts same time, that there are some, able and honest from the opinions of these judges. I would gladly as any, who dissent. It is not made, in the read them all. I could not, in justice to them, State of Wisconsin, a strict party question. It after what has transpired here, have read less. is at the same time true, that very many of the I commend them to the consideration of the Democratic party of that State still hold on to Senate lrnd the country as the opinions of able the doctrines which they were taught in the judges, of earnest and thoughtful men, grappling school of Jefferson and Jackson, that it is the with the gravest questions underlying our whole right and the sworn duty of every court and system of government. every tribunal to construe the Constitution, upon For myself, it is due in candor for me- to say their official oaths, as they understand it, and that, had I been consulted as a lawyer, and asked not as it is understood by others; and who still my opinion upon the question of the power of cherish the old Republican doctrine of State Congress to legislate on the subject of the rendi- rights. 1, thereforej do not stand here to-day tion of fugitives from service, upon the weight as the representative of tke Republican party of judicial authority, as it stood before this case throughout the country on this question. I arose in Wisconsin, I should have said, undoubt- know that great men, and good men, differ upon edly, that the courts had pronounced in favor of this question; but I stand here to speak for that authority; but since that question arose in myself, and to let the judges of the Supreme the State of Wisconsin, and has been so thor- Court of Wisconsin be heard on this question oughly discussed, and since my earnest attention here, where they have been assailed as no court has been drawn to the question, it is equally due or tribunal has ever been assailed oa this floor. to candor for me to say that I fully agree with MIr. President, as to that other and still graver Judge Smith in the analysis and construction question, whether the Supreme Court of the which he has given of that clause of the Consti- United States is to be the sole and ultimate tution of the United Stitsas, as the ablest and the judge as to what powers are delegated by the best that I have ever seen. Mlr. Webster him- Constitution. to the Federal Government, and self, although inclining to Federal views, and also as to what powers are reserved to the ready to acquiesce in the opinion of the Supreme States, and whether, upon all constitutional Court of the United States on that subject, still questions, the Supreme Courts of the States are declared in his speech on the 7th of March, 1850: inferior and subordinate to that court, it is, as I "I have always thought that the Constitution have said, and it always has been, the battle-' addressed itself to the Legislatures of the States ground of the political giants in this country. It themselves, or to the States themselves. It says, was in the struggle upon this very question, in'that those persons escaping to other States 1798, between the Jeffersons and Madisons upon'shall be delivered up, and I confess I have al- the one side, and the Hamiltons and Marshalls'ways been of the opinion that it was an injunc- upon the other, that the old Republican party was'tion upon the States themselves. When it is born. That struggle has been renewed at various 13 periods during our history, and must, in the very "No man holds in higher estimation than I nature of our institutions, occasionally arise' do the memory of Chief Justice Marshall; but through all coming time. Upon the one side, it' I should never have consented to make even is always alleged, and I confess with much force,' him the final arbiter between the Government that if a State court, upon constitutional ques- ~ and people of this country on questions of contions as to the reserved powers, is coequal and' stitutional liberty. The experience of all ages co-ordinate with the Federal supreme Court, a' and countries has demonstrated that judges inlaw of Congress might sometimes be declared to' stinctively lean towards the prerogatives of be void, and annulled by a State courts and a' Government; and it is notorious that the court, conflict of jurisdiction arise, not only ofjurisdic-' during the whole period which he presided tion, but of actual force, between the ministerial' over it, embracing so many years of its existofficers who execute the process of the courts;' ence, has inclined towards the highest assertion and, if followed up by both Governments. State' of Federal power. That this has been done and Federal, it might result in actual civil war.' honestly and conscientiously, I entertain not a Grant that such might possibly be the result-' doubt." —Congressional Globe and Apiendix, volthat such a contingency might possibly arise. ume 10, No. 2, page 163. Civil war is, indeed, a terrible calamity; but the Sir, the maxim of the judges always is, that it very fact that it is so terrible would lead all is the office of a good judge to enlarge and to parties to do all in their power to accommodate amplify his jurisdiction-bonijudicis est ampliare the difficulty-to postpone and-to remove, if pos- jurisdictionem; and no more forcible illustration sible, forever, the special cause which produced can be given of the operation of tl,ese two maxit. But, sir, terrible as it is upon one hand, still ims, the one political, the other judicial, than greater dangers would arise from conferring on has been presented in the person of Chief Justice the Federal Supreme Court the absolute power Marshall himself. When a member of the Conof construing the Constitution of the United vention of Virginia which adopted the ConstituStates, not only for itself, but for all other de- tion of the United States, Mr. Marshall announced partments of the Government, and for all the the political maxim in as strong language as courts of the several States. In the language of even Mr. Jefferson himself. The course which Mr. Jefferson, the Constitution, on this hypothe- he pursued, when a judge upon the bench, though sis, would become " a mere thing of wax in the as honest and as upright as ever sat on the bench, hands of the judiciary, which they may twist and has been stated by Mr. Buchanan himself. shape into any form they please." (7th volume Sir, I point you to Mr. Marshall as the statesJefferson, 134.) Such a tribunal, composed of man in the Virginia Convention, discussing pomen chosen for life, with supreme authority over litical subjects and their bearings on the rights all other departments, and with power to pre- and the liberties of the people, and set him scribe the limits of their own jurisdiction, leads against Chief Justice Marshall as the presiding of necessity to absolutism and consolidation. I judge of the Supreme Court of the United States. mean no disrespect to the personal characters of Sir, I will point you, also, to the present Chief the presentjudges who sit upon the bench of that Justice-I mean no disrespect when I say it-as court when I say that. Power in human hands, the Secretary of General Jackson: he was his wherever lodged, tends to enlarge itself. This is right-hand man in all that fierce struggle and especially true ofjudicial tribunals. With a brief controversy when General Jackson announced judicial experience, and yet long enough to learn to the world that, when he swore to support the the severe pressure upon the mind of the judge, Corstitution, it was as he understood it, and not where the law is doubtful, to decide what the as it was understood by others. Roger B. Taney law ought to be in order to meet the case in was then the politician and the statesman, standhand, and with what relief-I may say joy, ing shoulder to shoulder with General Jackson; even-his anxious mind leans upon the author- and I point to him now, as Chief Justice of the ity of some other judge in some other analogous Supreme C6urt of the United States,to illustrate case, however ancient or remote, I have learned the effect of these two maxims in his own charto fully comprehend the inherent tendency there acter and in his own life. It has shown that in is in all judicial tribunals to usurp judicial leg- a man of distinguished ability, of industry alislation. most unequalled, of h(nast.y of purpose, and of Sir, the maxims of judges and of statesmen on pure and upright personal character, the holding this subject are in antagonism with each other. of that position as Chief Justice of the United The maxim of Jefferson was, that- States has brought the judicial maxim to bear "It is an axiom of eternal truth in politics, upon him until the tendency of himself, and the'that whatever power in any Government is in- court over which he presides, is to absolutism,'dependent, is absolute also; in theory only at by the consolidation of all power in that branch' first, while the spirit of the people is up, but in of Government whose officers are chosen for life. practice as fast as that relaxes. Independence Sir. concede to the Supreme Court of the Uni-' can be trusted nowhere but with the people in ted States the power to decide not only for them-'mass. They are inherently independent of all selves, but for all other departments, and all the'but the moral law." —7 Jefferson, 134. courts of the several States, and make their deMr. Buchanan, too, in the Senate of the United cisions absolutely bind.ng upon them as the conStates, on the 7th of July, 1841, laid down, also, stitutional law, and when the people of the States as a political maxim-and it is true, as the whole of this Union are prepared to acquiesce in that history of the world has demonstrated: doctrine, and to carry it out, the days of the empire 14 will commence soon after. It is to be remea-'more wanting than with the judges of what is bered, in the strong language of John Randolph,' commonly called our General Government, but that, in the history of that remarkable nation,'what I call our foreign department. They are the chosen people of God, in its advance from' practicing on the Constitution by inferences, liberty and freedom to monarchy and despotism,' analogies, and sophisms, as they would on an "the Book of Judges comes before the Book of'ordinary law. They do not seem aware that it Kings;" a strong expression, which I hope will' is not even a Constitutioa formed by a single never die, and shoul'd never be forgotten.' authority, and subject to a single superintendSir, it was to resist and overthrow this as-' ence and control, but that it is a compact of sumed power of the Supreme Court of the United' many independent powers, every single one of States, claimed by the Federalists of 1798, that' which claims an equal right to understand it, the Republican party, under Jefferson and Madi-' and to require its observance."-7 Jefferson, 403. son, was first organized; and yet, strange as it And again: may seem, this most Federal of all Federal dog- "This member of the Government was at first mas is the distinguishing doctrine of the so-call-' considered as the most harmless and helpless ed Democratic party of to-day. They may quar-'of all its organs. But it has proved that the rel as they please about Congressional interven-' power of declaring what the law is, ad libitum, tion, over slave codes, and squatter-sovereign'by sapping and mining, slyly, and without legislation; but they all agree in judicial inter-'alarm, the foundations of the Constitution, car vention. They all agree in establishing slavery' do what open force would not dare to attempt." by the irrepealable decree of the Supreme Court And in his letter to Mr. Ritchie, still later, and of the United States. All shades of the harmoni- as late as 1820, long after the.excitement of the ous Democracy unite in sustaining this power first origin of the Republican party in 1798 had assumed by the Supreme Court; and the only passed away, he declared thatnew doctrine-the Shibboleth of that party in "The judiciary of the United States is the the coming struggle, which, if any, will be add-' subtile corps of sappers and miners constantly ed to their platform of 1856-will be the declara-'working under ground to undermine the foundtion at Charleston of the supreme sovereignty' ations of our confederated fabric. They are and infallibility of the decisions of the United' construing our Constitution from a co-ordination States Supreme Court. Sir, they would give' of a general and special Government to a gento that court the power, under the sp ecious |' eral and supreme one alone. -This will lay all guise of construing the Constitution for themselves'things at their feet; and they are too well and all other courts, to amend the Constitution' versed in- English law to forget the maxim, at their own pleasure. They would give that' boni gjudic s est am2pliare jurisdictionem.' We court the power, in effect, to insert in the Con-' shall see if they are bold enough to take the stitution a new provision recognising slaves as' daring stride their five lawyers have lately taken. property, when the great men who framed the, If they do, then, with the editor of our book, Constitution expressly refused to insert it.'in his address to the public, I will say, that What difference to the free white laborer by''against this every man should raise his voice,' what power in the Government slavery is carried' and more, should uplift his arm.'" * * into the Territories? If the free Territories of "A judiciary, independent of a King or Executhe United States are to be Africanized by the 1 tive alone, is a good thing; but independence introduction of slavery, what difference is it to' of the will of the nation is a solecism, at least him, whether it is carried into them by Con-' in a republican Government."-7 Jefferson, 192. gressional or Territorial slave codes; or whether He says in another letter referring to Judge it be introduced into them by Federal judicial Roane, who was one of the j dges that delivered decree - irrevocable decree, which " no human the opinion of the Supreme Court of Appeals of power," in the language of Mr. Buchanan, " has, Virginia, in Hunter vs. Mastin: any authority to annul or impair?" What "The judiciary branch is the instrument which, difference to the slave himself, whether he be' working like gravity, without intermission, is held in a Territory by a judicial or a legislative' to press us at last into one consolidated mass. bond-by a chain of iron or a chain of brass?' Against this I know no one who, equally with Sir, in the headlong zeal with which the lead-' Judge Roane himself, possesses the power and ers of that party would force slavery into the'the courage to make resistance, and to him I Territories of the United States, not indeed by'look, and have long looked, as our strongest the decree of an emperor, but by the decree of' bulwark."' — Jeferson, 198. an imperial court, they have ceased to be any The mode of resistance to Federal usurpation longer Republicans of the Jefferson or of' the is here pointed out by Mr. Jefferson. It is not Jackson school. They have embraced with all through an appeal to arms; it is not by seeking the ardor of new converts the most Federal of all to dissolve the Union; it is not by threatening the dogmas of the old Federal school. It was secession; but it is in the mode pointed out to against this dogma that Jefferson denounced his Judge Roane, that be, as one of the sovereign loudest thunders to the American people. In 1 judiciary of the State, should interpose, when the his letter to Mr. Livingston, he declared he would case was presented before the State courts, for be entitled to eternal gratitude if he could suc- the protection of the citizen when threatened by ceed in restraining judges from usurping legisla- Federal unconstitutional usurpation. tion: Mr. President, as the States and the United "And with no body of men is this restraint States occupy the same territorial space,:and 15 have therefore the same territorial jurisdiction, point was discussed, by the chief justice, in the the point of all others most difficult in our sys- case in Pennsylvania to which I have referred. tem is this: when there shall arise, between the He points to the true, solution of the difficulty. United States, which is acknowledged to be sov- That court said that, if a State should differ with ereign within the range of delegated power, and the United States about the construction of the the States, on the other hand, which are ac- powers'granted by the Constitution, knowledged to be sovereign over all undelegated "There is no common umpire but the people, power, a dispute as to the precise boundary line' who should adjust the affair by making amendwhich separates their jurisdiction, who shall de-'ments in the constitutional way, or suffer from termine that controversy. That is the question.' the defect." * * * " There is no provision in Yes, Mr. President, that is the question of all other' the Constitution that, in such a case, the judges questions in the science of American government.' of the Supreme Court of the United States shall That boundary line is expressed in language with'control, and be conclusive; neither can Conits ever-varying shades of meaning addressed to' gress, by law, confer that power."-3 Dallas's the human understanding, and not by metes and Reports, p. 475. bounds visible to the naked eye like the bound- Mr. Jefferson also refers to this subject, in a ary lines which separate the States. letter to Judge Johnson, dated at' Monticello, It will never do to put it into the power of the June 12, 1823: one or the other party to remove or destroy that "But the chief justice " of the Supreme Court boundary. "Cursed is he that removeth his "says,' there must be an ultimate arbiter someneighbor's landmark." In a dispute between' where.' True, there must; but does that prove the owners of adjoining fields, who would think' it is either party?. The ultimate arbiter is the for a moment of giving to one party, and espe-' people of the Union, assembled by their depucially to the stronger party, the sole power to fix' ties in convention, at the call of Congress, or of the boundary line at his own pleasure? So, as' two-thirds of the States. Let themn decide to to the boundary line between the State and Fed-' which they mean to give an authority claimed eral jurisdiction, it will never do to say that the' by two of their organs. And it has been the decision of the Federal Supreme Court shall' peculiar wisdom and felicity of our Constitution control and be conclusive. Their jurisdiction'to have provided this peaceable appeal where extends only to cases arising under, not outside of,' that of other nations is at once to force."-Jefthe Constitution, under laws passed in pursu- ferson's Wurks, vol. 7,p. 298. ance, and not in violation, of the Constitution. Sir, should resistance, even by an appeal to The Supreme Court of the United States, and the arms, take place, the appeal in the last resort is Supreme Court of a State, must, of necessity, to the people of the States, the power which whenever the question arises before it, each for, formed the Constitution, and the only power itself, pass upon its own jurisdiction; but as above the Constitution, to decide as to which each approaches to the boundary line of that party is right and which party is wrong, in their jurisdiction, it must advance with cautious step claims under the Constitution. and bated breath, always under this peril, which In conclusion, Mr. President, the questions rests upon every judge of every tribunal, I which I have discussed to-day are questions on care not how exalted, that in deciding upon the which great and good men have differed from the question of the extent of its own jurisdiction, if it beginning of the Government; upon which shall go one inch beyond its jurisdiction, its whole they now differ, and will continue to differ. proceedings are void. If it decides right upon that It is perhaps well that they should. It is question, its proceedings are judicial proceedings. to these two enduring and apparently oppoI'f it decides wrong, and treads over the boundary sing forces or tendencies in our system that which prescribes its jurisdiction, and usurps a we owe its true harmony, its real glory. The power which the law and the Constitution do not power which moves the planets in our system is give, then its proceedings are no more judicial the combined action of the centripetal and of than if they took place before a private individ- the centrifugal forces. The former, unaffected ual not pretending to hold any judicial authority by the latter, would draw them all to the sun at whatever; they are absolutely void and of no the centre; while the latter, unaffected by the effect, and may be so declared by any court in former, would hurl them from their spheres, to which their validity is drawn in question. If a wander at random through the universe, until conflict arises, it must be because the one or the destroyed by collisions, or bound by superior other party has usurped a jurisdiction not con- force to some other system. So these two tendferred. Which is the usurper, the Stae or the encies, the one to enlarge the powers delegated Federal'Government? That is the question; and i to the General Government, which is called Fedthat depends simply on this other question, eralism, and the other, if not to enlarge, sturdily which is right, which is wrong, which has de- to maintain the reserved powers of the States, cided right upon the Constitution, and which which is called Republicanism, are to be looked has decided wrong upon the Constitution? That upon rather as political blessings than as politiparty which decides right is acting under legal cal evils. The result of their struggle and anauthority, binding upon all citizens, and upon all tagonism, though sometimes the one and somebranches of the Government. The decision of times the other seems for a time to obtain asthat party which has usurped authority, and cendency, is beneficial in the end by maintaining taken jurisdiction of what the Constitution does all the reserved rights of the States, and at the not confer, is not binding upon anybody. This same time asserting and maintaining in their in 16 tegrity and vigor the union of the States and the minish its own jurisdiction, and thereby enlarge supremacy of the Constitution, and the laws or diminish, at its pleasure, the reserved rights passed in pursuance thereof And it is in this J of the States? Why, sir, why would the leaders sense that Jefferson declared, in his inaugural of this party interpolate into its creed.this new address, "we are all Federalists, and we are all dogma of the supreme, infallible, and irrevocable Republicans." decisions of the Supreme Court of the United But, Mr. President, what do we now behold? States? Is there, indeed, among their leaders, A party styling itself the Democratic party, which so much new-born reverence for the court itself? claims Jefferson as its fou and Jackson as its No, sir, no; do not believe it for a moment. Let heroic chieftain, both of whose Administrations not the judges who sit upon that bench be flatresisted and trampled under their feet this dogma tered by their adulations. They kneel not to the of judicial supremacy and infallibility. We be- throne itself, but to that dark divinity which they hold this party, in the face of its own platform of see standing vailed just behind it. Mr. Buchanan resolutions upon this very subject of the powers in his message lifts the vail, and points directly to of the General and the State Governments, now the object of their idolatry, holding in its hand blindly bowing itself down to worship at the feet a scroll containing that," final decision," which of an imperial court, and adopting this Federal has " irrevocably fixed" slavery in all the Terridoctrine of judicial supremacy and infallibility! tories of the United States that we now have or For what purpose have they thus set up this may hereafter acquire, so that " neither Congress judicial Vatican? Why would they give to the nor any Territorial Legislature nor any human judicial branch of this Government power to power can annul oi impair this vested right." change at its pleasure political creeds, and, The resolutions under consideration look to the above all, the power, uinder the specious guise same obj ct, and therefore cannot receive my of construing the Constitution, to enlarge or di- support. WASHINGTON, D. C. BUELL & BLANCHARD, PRINTERS. 1860.