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confining of the decision of the Slavery question to the territorial tribunals," with a perfectly secured right of appeal, in all cases, from their decision to the Supreme Court of the United States," he proceeds to say:
"Thus both the master and the friend of the slave were entitled to try the question at once before the common arbiter appointed by the fathers of the republic to settle all conflicting questions of Constitutional law, while Congress retained all political and legislative power over the whole subject, to be exercised or not, as its own wisdom should see fit. A single decision of the Court, made on the very first case presented at the next term, it was understood, would have settled the question debated in these halls for years past, and which we all know can never be settled here."
"Hence a preliminary matter to be decided is, whether this question arising under the Constitution between the North and the South can" &c. .. "The Court derives its power to decide the question not from the bill but from the Constitution." "Neither Northern nor Southern men will pretend, for one moment, that this great question, which threatens to shake the pillars of our whole political edifice, is not of sufficient importance to entitle it to a decision by the highest tribunal known to the Constitution No question of greater importance was ever before submitted to that court." "Had the members of the other house given themselves time to reflect, it is quite impossible they could have rejected it, because the judges were, by the regulation of the bill, to decide a judicial question, which the Constitution ordained them to decide, and commanded us to make provision to enable them to decide."
We make these many quotations from Mr. Clayton's speech, not only that we may fully show what provisions were made by the bill from the Senate for the decision of the question of Slavery in our territories, but Mr. Clayton's own opinion, regarding it as a question which the Constitution had especially cast on the Supreme Court.
Though, doubtless, to use Mr. Clayton's own language, he is "deserving the name of a constitutional lawyer," his interpretation of the Constitution as applicable to the case in hand, is, to our minds, far from being clear. Wishing to make it appear that the Constitution was neutral between liberty and slavery, caring but little which should be established, he becomes indistinct and obscure: of course, he has failed to make strong and well defined impressions on others; he has only
confused those who depended on him, and who were too indo-
Now, although we are not a "constitutional lawyer," probably, according to Mr. Clayton's notions, not even "deserving the name" of one,- for we think the Constitution, so far from being made for the quibbles of lawyers, "constitutional lawyers, "if you will, is a plain instrument, intended to be understood by the people, we take it we have a clear idea of that instrument, certainly a more honorable one, and more satisfactory to us, than the one he has given.
We set it down for granted that the Constitution has made Congress the governing power of the territories; and we believe it is admitted on all hands, that Congress itself has no authority to establish slavery in the territories, or anywhere else. Now, as the Constitution says not a word about establishing slavery, and as it does not even attempt to grant this power, admitting it could be granted, every one under its dominion is presumed to be in his natural, inartificial condition -to be free. Should this, however, not be the case, the writ of Habeas corpus, in its various forms, as in other instances of alleged illegal restraint, will bring the person restrained of his liberty before any territorial judge, to show the cause of his detention.
But on what grounds will the judge determine a matter, consistently with the Constitution, when it is not once mentioned in that instrument that instrument, too, from which he derives his own power of deciding, and, indeed, all the power he has? By a very simple process: by removing whatever is antagonistic to it, and that hinders its free course, the only way, as far as we know, of making any law effective; by ascertaining that the restraint complained of is incompatible with the Constitution; that the latter will be null and void, defeated, and that an opposite state of things, setting aside the Constitution, will prevail, if the restraint be continued. This he is appointed to prevent, and, as if knowing how much the weakness of human nature needs the strongest support, this he is sworn to prevent.
The writ of Habeas corpus is entirely a judicial writ. It must be issued by a court, or by the judge of a court. Congress cannot issue it, nor decide on it, any more than any other equal number of individuals. And a decision,- a final one, of course, may terminate the whole dispute about ter ritorial slavery. Should this be the case, and we think it incontrovertible, what power has Congress over the question? What room is there for the "political and legislative power" of that body" over the whole subject, to be exercised or not according to their discretion"-about which Mr. Clayton so confidently comments? If the question is given by the Constitution exclusively to the judicial department, and the Supreme Court have to decide on it, as Mr. Clayton says, "not from the bill, but from the Constitution," can an act of Congress have any effect whatever on the decision? Can an act of Congress undo what the Constitution "ordained" the Supreme Court to do? Can it restore Slavery, if the Supreme Court pronounce it incompatible with the Constitution? Certainly not, for the very act, or law, by which it would be attempted, would be declared by the Supreme Court unconstitutional, and therefore void.
After what we have said, it may be supposed that we think Congress has nothing to do with the question. True, it has nothing to do with the decision of the Court. It can do nothing that imposes a duty or obligation. All it can do, under the supposition that the Supreme Court will declare slavery in the territories unlawful, must be merely influential. It can, in the most suitable form, approve of the decision-declare its harmony with the Constitution, and that it well agreed
with the nature of this government made to establish justice, of which Slavery is the most flagitious violation. In this manner its influence may be added to that of the judiciary. But a decision to establish Slavery in the Territories ought to be considered good ground for impeachment, as showing ignorance of the Constitution, and of the very nature of the government, or for fraud in misconstruing it in favor of the wrong-doer.
Senator Clayton, in his constitutional equipoise between Liberty and Slavery, would seem to think that the Senate's bill, in restricting the decision of the Slavery question to the territorial tribunals constituted by the United States, with an appeal to the Supreme Court, had proposed a plan of settling. it, not only unobjectionable, but liberal to the slave. In one respect it does appear liberal, for we have never known a case in which a slave sued for his freedom in a United States court. It may have been owing to the fact that both he and the person claiming him resided in the same state; or from his being advised that his value was not equal to the smallest amount for which a suit can be brought there but from some cause or other, he was always confined, as far as we know, to the state courts. But, in all likelihood, it was not intended that in California and New Mexico, there should be, at present, any other courts than those named in the bill. If so, the liberality spoken of is but little more than apparent, for the claim of freedom must be preferred in them, or not at all.
But let us suppose that a slave is desirous of having his right to freedom adjudicated by one of these tribunals; how will it be, if the nearest judge reside two or three hundred miles, or more, from him, the territories being of great extent — how will he obtain access to him or to his court? He has no time that he can call his own, for the master, or person holding him in possession, has appropriated that to himself, and will keep him at work. He has no money, no property, for that, too, the slaveholder has taken care to appropriate, and in considering this case, we must not take into the account what aid men humane may extend to him. But supposing these obstructions surmounted, almost insurmountable as they are, and that the slave duly arrives at the place where the court is usually held, and is there told that it will not be held at that term; that the judge is sick, or disabled from attending to any business. Perhaps he may there learn, too, that the judge is dead, and that, as the distance to Washington city is some two or three thousand miles, his successor
will not be there soon enough, in all probability, to hold the next term of the court. Besides this, the slaveholder will have the opportunity, from the failure to serve his subpoenas, from the absence of a material witness, &c., &c., of continuing the cause a term or two. And are we to think he will not do this - particularly in these gold-finding times, when the value of a slave, even for a few months, would be so very great, and when the interests of so many others may be depending on the decision in his case? And if it be submitted to a jury, as we apprehend it will be,- for the slaveholders will use every means of delaying the cause, and finally of defeating it, by whom, we ask, will it be tried? Not by a jury half of whom shall be slaves, or even colored freemen, but by one made up of slaveholders, or by those who are connected with them, who daily associate with them, and are influenced by them. What, in the meantime, during all the law's delay, is the condition of the slave? The very reverse of the slaveholder's. When he first makes application for the interference of the Court, he must give bond, with security, in double the amount of what he is supposed to be worth as a vendible commodity. If he cannot find security, he must go to jail, where he will lie till brought in to Court to attend to his case. His lawyer, if he has one, will most probably be among the young and inexperienced and attempts will be made to render him ridiculous, and the whole affair, as a matter of policy, as well as of feeling, will be laughed at. In addition to all this, the judge may be a slaveholder, or at least, he will almost certainly be appointed by a slaveholding President; the clerk - the marshal, may be slaveholders. In short, there may be no one at all, concerned as an officer of the court, or as a spectator of the trial, whose good wishes and countenance will be given to the slave.
Thus of all persons contending for rights dearer to him than all other rights, the slave may be the most forlorn, and his cause the most hopeless, especially if we consider the remoteness of the country in which these enactments take place. Indeed, Mr. Clayton himself acknowledges the difficulties, amounting almost to an impossibility, of the slave conducting his own cause, when he speaks, as he does, of the intervention of the "friend of the Slave."
But many will be ready to say, that a decision by a terri torial judge is of little consequence, seeing, that, in any event, an appeal lies to the Supreme Court, by which the question is to be determined. We are not of that number, but Senator 3