106. SLAVERY PROPOSITIONS IN 1860-61.

By the time of the opening of the second session of the Thirty-sixth Congress, in December of 1860, the condition of affairs was changed, and now amendments were freely offered, upward of two hundred being presented to Congress during this session. These multifarious propositions will be treated according to their subject-matter; their chronological history may be briefly disposed of. At the opening of the session President Buchanan recommended in his annual message three explanatory amendments to the Constitution on the subject of slavery. The first of these was an express recognition of the right of property in slaves; the second declared the duty of protecting this right in the Territories, and the last, recognized the validity of the fugitive slave law.

Nearly every prominent member of the Democratic party, especially from the Northern and border States, suggested amendments. No less than fifty-seven distinct resolutions were presented during this session of 1860-61. Some of them, in the effort to find some common ground for compromise and conciliation, contained a long list of propositions dealing with almost every conceivable phase of the slavery question.

The amendments introduced in the early part of the session varied from the propositions advanced by Jefferson Davis, for the express recognition and protection of property in slaves,3 to those advocated by Senators Crittenden and Douglas, which, although conceding great rights to the slave States, were more in the nature of a compromise. Several propositions went to the length of insisting on a radical change in the form of government, to the end that the slaveholders might feel more security in the Union. After the secession of South Carolina and some of her sister States, propositions for the amendment of the Constitution were even more numerous; that advocated by Senator Crittenden seemed the most likely to succeed, but it failed to receive the Republican vote and the South preferred to secede rather than to consider anything

1 An excellent résumé of the history of this Congress may be found in Rhodes, U. S., Vol. 1, pp. 140-181; 253-271; 287-291; 305-308; 313-314. For a synopsis of various bills and resolutions, see, also, McPherson's History of the Rebellion, pp. 48-90. 2App., Nos. 778, 780.

3 App., No. 851.

4 App., Nos. 827-833 and 836-850; 852a-h, 869a-m. See Foster, Com. on Const., 1, pp. 169

5 Ante, pars. 34, 48.

that was not adopted by nearly a unanimous vote. In the last days of February the amendments proposed by the peace congress, called at the request of Virginia, were presented to Congress. Some of their main provisions were similar to those of the Crittenden compromise, in that slavery should be prohibited north of the parallels of 36° 30', and recognized and never interfered with by Congress south of that line, and that the Federal Government was to pay for slaves rescued from officers; but it made further concessions to Southern demands. Congress was unable to agree on any of these measures, and the utmost that could be obtained was the comparatively colorless Corwin amendment.3

107. PROPOSITIONS OR LIMITATIONS ON ABOLITION.

A numerous class of amendments were intended to prevent the abolition of slavery anywhere by national authority. The end was to be accomplished in one of the following ways: (1) By an express recognition of the right of property in slaves, like the amendment proposed by President Buchanan in his annual message at the opening of the Congress. Other amendments of a similar nature were introduced by Senators Powell and Jefferson Davis and Congressman Hindman of Arkansas.

(2) By declaring either that Congress should have no jurisdiction over slavery, or that Congress should not interfere with slavery within the States, or that the regulations of the right to labor or service in any of the States was exclusively the right of each State. The Crittenden amendment and the peace convention resolutions contained such articles. In most cases these propositions were simply one of a series of amendments, and were usually accompanied by a provision that this article, together with certain of those accompanying it, should be unamendable. For some time no agreement was reached. Finally the House select committee of thirty-three reported, February 27, 1861, a resolution which read as follows: "No amendment

1 Rhodes, U. S., 1, pp. 260-265. See Chittenden's Debates and Proceedings of the Peace Convention. Foster, Com. on Const., I, p. 174 et seq.

App., No. 917.

App., No. 931; post, par. 107.

4App., Nos. 778-970.

App.. No. 778.

6 App., Nos 782, 805, 851.

7 App., Nos. 790, 801, 827, 833, 850, 852g, 853, 869, 869c, 874k, 876, 894, 897, 913, 917, 919, 928, 935, 950, 957, 969.

As a part of their report. There were five propositions in all, but this was the only one to amend the Constitution. See McPherson, pp. 57-62. Several had suggested this amendment, December 24, in the Senate committee of thirteen and it was agreed to by them. Journal of the committee, p. 11.

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of this Constitution having for its object any interference within the States with the relation between their citizens and those described in section 2 of the first article of the Constitution as 'all other persons' shall originate with any State that does not recognize that relation within its own limits, or shall be valid without the assent of every one of the States composing the Union." Mr. Corwin of Ohio immediately moved a substitute, which was accepted, but the resolution as amended was then rejected. The following day the vote was reconsidered, and the Corwin amendment passed by a vote of 133 to 65, in the following terms: "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or to interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State." When the Corwin resolution came up in the Senate, Senator Pugh of Ohio moved to substitute his resolution containing a series of seven articles and with a few exceptions covering nearly the same ground as the peace convention amendments. Then Mr. Doolittle of Wisconsin presented as a substitute a resolution declaring that no State shall have power to secede, and asserting that the laws of the United States shall be supreme. Three other resolutions were proposed, one of these being the series of the peace convention, and another authorizing the calling of a constitutional convention; but they all failed. March 2 the amendment passed by a vote of 24 yeas to 12 nays, the exact constitutional majority, and on the same day received the unnecessary approval of the President. Only three States seem to have ratified it, Ohio and Maryland through their legislatures, and Illinois through a constitutional convention.8 In the New England States it was rejected, and many others did not act upon it. It was not regarded as a sufficient concession to hold the Southern States which had not as yet seceded, much less

Proposed by Charles Francis Adams in committee. See Blaine, 1, p. 260-268.

2 App., No. 931.

App., No. 942.

4 App., Nos. 952, 953.

App., Nos. 954, 955-965.

In reality on the 3d of March, Sunday. Mr. Trumbull raised the point of order that two-thirds of all the Senators had not voted in the affirmative, but the Chair held, and was sustained, that only two-thirds of those present was necessary. See post, par. 183. 7 See post, par. 184.

8 App., No. 931. Ohio, May 13, 1861; Maryland, January 10, 1862; Illinois, February 14, 1862. The latter is the only case of a convention being held to ratify an amendment to the Federal Constitution. Was it valid? See post, par. 179.

Stated upon the authority of Blaine, Twenty Years in Congress, 1, pp. 266–267.

to win back those which had already taken that action. Other Northern States would have undoubtedly ratified it, if it had promised to stay secession, but the rapid approach of the civil war put it out of the public mind. It is interesting to note, in this connection, that nearly three years later, February 8, 1864, Senator Anthony of Rhode Island introduced a resolution to repeal this joint resolution. The motion was referred to the Committee on the Judiciary, who were some months later discharged from its further consideration, and the entire matter was dropped."

Just after the opening of the Thirty-seventh Congress, in July, 1861, Senator Saulsbury of Delaware presented a series of amendments "for the peaceable adjustment of national difficulties." They were substantially the "Crittenden resolutions." Nearly a month later the Senate refused to consider them. Again, in 1864, Mr. Saulsbary included among the amendments offered by him as a substitute for the thirteenth amendment an article that the slave States south of 36° 30' should regulate for themselves the question of slavery. In this same year Mr. Davis proposed in a somewhat similar series of amendments a proposition that each State should have the exclusive right over its local and domestic institutions.5

(3) In addition to a few amendments proposing radical changes in the form of government, an amendment was presented by Mr. Hindman of Arkansas, in 1860, which, in addition to other guaranties, called for such provisions as will secure to the slaveholding States, through their representatives in Congress, an absolute negative upon all action of Congress relating to the subject of slavery, and such amendments shall forever be unamendable. Possibly this proposition suggested the amendment presented some two months later by Mr. Vallandigham, providing that a majority from each section shall be necessary for the passage of a bill.

1 Rhodes, United States, III, pp. 313-314. Rhodes thinks but for the outbreak of the war it would have been adopted.

2 App., No. 1025. It would seem to be extremely doubtful whether Congress could recall an amendment when it has once been submitted. Jameson, Const. Conv., p. 634; post, par. 180, note.

3App., No. 971. Senate refused to consider it by a vote of 11 to 24.

App., No. 1007.

App., No. 1039f.

App., Nos. 805-811.

7App., No. 902. The same seems to have been introduced by him in 1862. par. 86.

See ante,

108. FUGITIVE SLAVES.

The amendments relative to abolition had little likelihood of passing, because the danger of interference by the General Government with slavery in the States seemed remote, but the propositions for the return of fugitive slaves deserve more careful attention. The experience of the country since 1850 showed that the Constitution as it stood did not secure the recovery of fugitives. The Southerners in the earlier days had maintained that there was no need of an amendment, since the Constitution already had a provision on the subject, but they bitterly complained that the law framed in 1793 to carry out this provision was not enforced.' As a part of the compromise of 1850 a more effectual law for the return of fugitive slaves was passed." The act was so far out of sympathy with the usual methods of trial in the Northern States that its execution was resisted by able constitutional arguments, by forcible rescues, and by a series of State enactments, the well-known "Personal liberty bills."4 The Southern States felt and made much of these undeniable grievances.

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(1) Among the numerous amendments presented in the session of 1860-61, some thirty-three amendments were proposed on the subject of fugitive slaves. Subsequently others were introduced by Mr. Saulsbury later in 1861, and again, in the series offered by him as a substitute to the thirteenth amendment, in 1864. Most of these amendments were intended to give a definite guaranty to the South that the right to the return of their slaves should not be infringed. The first method to secure this end was to declare the fugitive slave law superior to State constitutions or enactments. Such was the proposition embodied by President Buchanan in his annual message of December 4, 1860.7 Congress was urged to submit to the States an amendment asserting the "right of the master to have his slave

See resolutions of Georgia in 1840. Senate Journal, pp. 235-236. This was occasioned by the controversies between Georgia and Maine, New York and Virginia. For details see Niles' Register, LIII, 71-72; LV, 556; LVI, 215; LVII, 272; LIX, 374, 404; LX, 55, 60, 69, 70, 90, 150-152; LXI, 241, 372, 385; LXII, 86, 112, 117. Senate Journal (1842), 145, 146.

2 A person claimed as a fugitive slave was to be returned without trial by jury or appearance before a judge, but simply on the certificate of a commissioner; and the fee was $10 if the slave was remanded and only $5 if he was declared a free man.

3 McDougall, Fugitive Slaves, Chap. IV.

4 Ibid., Chap. v; McPherson, pp. 44-47.

App., Nos. 780, 787, 789, 794, 802. 803, 809, 817, 833, 849, 852g, 860, 868, 869g, 872, 874g, 874k, 881, 886, 888, 889, 894, 898, 914, 920, 927, 937, 939, 949, 950, 962, 964, 967, 971d, 971g, 971h.

App., Nos. 1008, 1012, 1013.

'App., No. 780.