"There is no nation in Europe which considers itself bound to return to his master a fugitive slave, under the civil law or the law of nations. On the contrary, the slave is held to be free where there is no treaty obligation, or compact in some other form, to return him to his master. The Roman law did not allow freedom to be sold. An amba.s.sador or any other public functionary could not take a slave to France, Spain, or any other country in Europe, without emanc.i.p.ating him. A number of slaves escaped from a Florida plantation, and were received on board of ship by Admiral Cochrane; by the King's Bench, they were held to be free.

In the great and leading case of Prigg _v._ the State of Pennsylvania, this court says that, by the general law of nations, no nation is bound to recognize the state of slavery, as found within its territorial dominions, where it is in opposition to its own policy and inst.i.tutions, in favor of the subjects of other nations where slavery is organized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere munic.i.p.al regulation, founded upon and limited to the range of the territorial laws.

This was fully recognized in Somerset's case, which was decided before the American Revolution.

"There was some contrariety of opinion among the judges on certain points ruled in Prigg's case, but there was none in regard to the great principle, that slavery is limited to the range of the laws under which it is sanctioned.

"No case in England appears to have been more thoroughly examined than that of Somerset. The judgment p.r.o.nounced by Lord Mansfield was the judgment of the Court of King's Bench. The cause was argued at great length, and with great ability, by Hargrave and others, who stood among the most eminent counsel in England. It was held under advis.e.m.e.nt from term to term, and a due sense of its importance was felt and expressed by the Bench.

"In giving the opinion of the court, Lord Mansfield said:

"'The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, are erased from the memory; it is of a nature that nothing can be suffered to support it but positive law.'"

In relation to the connection between the Federal Government and slavery, Judge McLean remarks:

"The only connection which the Federal Government holds with slaves in a State, arises from that provision in the Const.i.tution which declares that 'No person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due.'

"This being a fundamental law of the Federal Government, it rests mainly for its execution, as has been held, on the judicial power of the Union; and so far as the rendition of fugitives from labor has become a subject of judicial action, the federal obligation has been faithfully discharged.

"In the formation of the Federal Const.i.tution, care was taken to confer no power on the Federal Government to interfere with this inst.i.tution in the States. In the provisions respecting the slave trade, in fixing the ratio of representation, and providing for the reclamation of fugitives from labor, slaves were referred to as persons, and in no other respect are they considered in the Const.i.tution.

"We need not refer to the mercenary spirit which introduced the infamous traffic in slaves, to show the degradation of negro slavery in our country. This system was imposed upon our colonial settlements by the mother country, and it is due to truth to say that the commercial colonies and States were chiefly engaged in the traffic. But we know as a historical fact, that James Madison, that great and good man, a leading member in the Federal Convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man.

"I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Const.i.tution in all its bearings, rather than to look behind that period, into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground. Our independence was a great epoch in the history of freedom; and while I admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised the rights of suffrage when the Const.i.tution was adopted, and it was not doubted by any intelligent person that its tendencies would greatly ameliorate their condition.

"Many of the States, on the adoption of the Const.i.tution, or shortly afterward, took measures to abolish slavery within their respective jurisdictions; and it is a well-known fact that a belief was cherished by the leading men, South as well as North, that the inst.i.tution of slavery would gradually decline, until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation. Like all other communities and States, the South were influenced by what they considered to be their own interests.

"But if we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles, white men were made slaves. All slavery has its origin in power, and is against right."

In reference to the power of Congress to prohibit slavery in the territories, we quote the subjoined paragraphs from Judge McLean's opinion:

"On the 13th of July, the ordinance of 1787 was pa.s.sed, 'for the government of the United States territory northwest of the river Ohio,' with but one dissenting vote. This instrument provided there should be organized in the territory not less than three nor more than five States, designating their boundaries. It was pa.s.sed while the federal convention was in session, about two months before the Const.i.tution was adopted by the convention. The members of the convention must therefore have been well acquainted with the provisions of the ordinance. It provided for a temporary government, as initiatory to the formation of State governments.

Slavery was prohibited in the territory.

"Can any one suppose that the eminent men of the federal convention could have overlooked or neglected a matter so vitally important to the country, in the organization of temporary governments for the vast territory northwest of the river Ohio? In the 3d section of the 4th article of the Const.i.tution, they did make provision for the admission of new States, the sale of the public lands, and the temporary government of the territory.

Without a temporary government, new States could not have been formed, nor could the public lands have been sold.

"If the 3d section were before us now for consideration for the first time, under the facts stated, I could not hesitate to say there was adequate legislative power given in it. The power to make all needful rules and regulations is a power to legislate.

This no one will controvert, as Congress cannot make 'rules and regulations,' except by legislation. But it is argued that the word territory is used as synonymous with the word land; and that the rules and regulations of Congress are limited to the disposition of lands and other property belonging to the United States. That this is not the true construction of the section appears from the fact that in the first line of the section 'the power to dispose of the public lands' is given expressly, and, in addition, to make all needful rules and regulations. The power to dispose of is complete in itself and requires nothing more. It authorizes Congress to use the proper means within its discretion, and any further provision for this purpose would be a useless verbiage. As a composition the Const.i.tution is remarkably free from such a charge.

"The prohibition of slavery north of 36 30', and of the State of Missouri, contained in the act admitting that State into the Union, was pa.s.sed by a vote of 134, in the House of Representatives, to 42. Before Mr. Monroe signed the act, it was submitted by him to his Cabinet, and they held the restriction of slavery in a territory to be within the const.i.tutional powers of Congress. It would be singular, if, in 1804, Congress had the power to prohibit the introduction of slaves in Orleans territory from any other part of the Union, under the penalty of freedom to the slave, if the same power embodied in the Missouri Compromise could not be exercised in 1820.

"But this law of Congress, which prohibits slavery north of Missouri and of 36 30', is declared to have been null and void by my brethren. And this opinion is founded mainly, as I understand, on the distinction drawn between the ordinance of 1787 and the Missouri Compromise line. In what does the distinction consist?

The ordinance, it is said, was a compact entered into by the confederated States before the adoption of the Const.i.tution; and that in the cession of territory, authority was given to establish a territorial government.

"It is clear that the ordinance did not go into operation by virtue of the authority of the confederation, but by reason of its modification and adoption by Congress under the Const.i.tution. It seems to be supposed, in the opinion of the court, that the articles of cession placed it on a different footing from territories subsequently acquired. I am unable to perceive the force of this distinction. That the ordinance was intended for the government of the northwestern territory, and was limited to such territory, is admitted. It was extended to southern territories, with modifications by acts of Congress, and to some northern territories. But the ordinance was made valid by the act of Congress, and without such act could have been of no force. It rested for its validity on the act of Congress, the same, in my opinion, as the Missouri Compromise line.

"If Congress may establish a territorial government in the exercise of its discretion, it is a clear principle that a court cannot control that discretion. This being the case, I do not see on what ground the act is held to be void. It did not purport to forfeit property, or take it for public purposes. It only prohibited slavery; in doing which, it followed the ordinance of 1787."

In 1840, Judge McLean lost his wife, and in 1843, married his present wife, Mrs. Sara Bella Gerrard of Cincinnati. In his personal appearance, Judge McLean is imposing, for he is tall and well proportioned, and his face is one of the finest among the list of American jurists. As a judge, he is above reproach; and as a Christian--he is a member of a Christian church--he has won the esteem of all who know him in that relation.

HENRY A. WISE.

Governor Wise is certainly one of the ablest of the southern democrats. He may lack judgment and that balance of character which is necessary in the truly great man; but he is a decided genius.

Whatever he has attempted he has accomplished, thus far, from his wonderful energy and activity. Whether he has reached that bound in his political triumphs beyond which he cannot pa.s.s, remains to be seen. We will very briefly glance at his past history and his present views upon the great political issues of the country.

Henry A. Wise was born in Drummond Town, Accomack County, Virginia, December 3, 1806. He was a precocious lad, for he graduated at Washington College, Pa., when he was but nineteen years old. He then studied law, and was admitted to the bar of Winchester, Va., in 1828.

With a western fever in his bones, and desirous of a new field in a new country, he emigrated to Nashville, Tennessee, where he practised law for two years. He soon grew homesick for old Virginia, and returned to Accomack County. The district showed its estimation of the young man by returning him to Congress in 1833. He continued to represent it in the House of Representatives for ten years. In 1843, he resigned his place and took the mission to Brazil. He remained there for a Presidential term. In 1848, he was a Presidential elector in Virginia; in 1850, was a member of the Reform Convention which adopted the present const.i.tution of the State. In 1852, he was again a Presidential elector, and in 1855 was nominated by his party as their candidate for Governor. This caucus will always be remembered and will give him unfading political laurels. The contest was probably one of the most exciting, close, and bitter, which ever took place, even in Virginia. The Know Nothings, or Americans, were then in the height of power and were sanguine of success. Mr. Wise took the stump with the prophets against him, and in fact with a general impression abroad that he would be defeated. He carried on the year's canva.s.s as no other man beside Henry A. Wise could have done it. He bearded Americanism in its den--forced it upon its own territory--and triumphed in the popular vote by thousands. However rash and extravagant his speeches were, he had that overwhelming enthusiasm and vigor, which carried down all opposition, and placed him in the Governor's chair.

As a politician, Governor Wise has always been true to the Virginian school. Rigidly in favor of State rights, and as rigidly opposed to protective tariffs--in short, bitterly anti-Whig in all his opinions.

On the slavery question, from the outset, he has been ultra pro-slavery, though he was opposed to the Lecompton policy of Mr.

Buchanan's administration. He has favored internal improvements in Virginia, and has in this respect differed from Mr. Hunter. This is the bright feature in Governor Wise's political character. He never was an old fogy, but is brimful of originality and reform. To see what is Governor Wise's position on many of the issues of the day, we will quote a few pa.s.sages from his letter of January 3, 1859, to Hon. David Hubbard:

"Now, I have raised my warning of late against this weakness and wickedness on our part. I have tried to protect my widowed mother, the South, by giving honest filial counsel against the whole household. The Reubens have tried to sell me into Egypt for my 'dreaming.' But I am, nevertheless, loyal to the house of my father and loving to my misguided brethren, and I mean to redouble my efforts the more to save the house of Israel. If I must be driven out as a dreamer, I will, at least, preserve 'mine integrity,' and time and the day of famine will show whose counsel and whose course will have saved the household and fed it, and all the land of the stranger too. Aye; and is democracy as well as the South to have no out-spoken, honest counsellor? Are we to be given over to the federal G.o.ds of Pacific railroads? Are we to _out-Yazoo Yazoo_? To out-Adams Adams in putting internal improvements by the General Government on the most Omnipotent and indefinitely stretching power of all powers of the Federal Government--_the war power_? Are we to abolish _ad valorem_ and adopt the specific duties to supply a tariff for revenue, the standard of which is already eighty-one millions of expenditure on three hundred and twenty-one millions average rate of importations? Are we to increase eighty-one millions of expenditure to the unknown limitless amount required for railroads across this continent; for post-offices that don't pay expenses; for pensions unheard of in character and amount; for a land office which gives away three acres for every one sold, and brings us in debt; for increase of a standing army such as our frontiers and Indian wars and protectorates of foreign territory propose; and, therefore, for such a navy as Isthmian wars with no less than eight powers of the earth--England, Spain, France, Mexico, Nicaragua, Costa Rica, New Granada, and Paraguay--demand if threatened only? Is protection to be turned into prohibition? If so, what is a 'direct tax?' Is land tax the only one which can be 'apportioned?' Are the landowners to pay all the cost of the crusade of Congress and manifest destiny? Is strict construction and are State rights to be abandoned, and are we to give up State corporations to the bankruptcies of a federal commission? Where would have been our people and their effects last year if a federal power could have put our State banks into a course of liquidation under a commission of bankruptcy? Is the South, is any portion of our community, in a situation to rush into wars--wars invited by the President with three European and five American powers? And are we to be a grand consolidated, elective, North and South American imperialism? The question is not, 'Will the Union be dissolved?' That is a settled question. But the question is, 'Is the old Virginia democratic faith to be abandoned, and are we to rush on with the President into a full scheme of federal policy which in its outline and filling up, exceeds any federalism, in all its points, which a Hamilton, or Adams, or any other lat.i.tudinarian, ever dared to project or propose?

"For my part, I take ground now firmly and at once against the war power. I am for the Washington policy of peace, and against all entangling alliances and protectorates, and the Jackson rule of 'demanding nothing but what is right, and submitting to nothing that is wrong,' and for preserving and protecting the South and whole country from ambitious and buccaneering wars, of which the landed and planting interests would have to bear the burden, at a great sacrifice of present prosperity. I am against internal improvements by the General Government, more than ever since their construction is put on the war power. If we could beard England up to 54 40', ten years ago, without a road or known route to Oregon, why can't we wait for emigrants to beat a path on their way to gold mines, and hold California, without cutting a military road in time of peace? I am for retrenchment and reform of all expenditures, and for revenue only for economical administration, on a scale of pure, old-fashioned republican simplicity, discriminating no more than is necessary to prevent prohibition on non-dutiable articles. I am for free trade, and the protection it affords is demonstrably ample for a people of enterprise and art like ours. I am against State-bank bankruptcy, and all sorts of bankruptcy whatever. The Federal Government shall never declare again that honest debts shall be paid by gulping and oaths, with my consent. But my paper is run out.

"The President bids high. To filibusters he offers Cuba and the Isthmus and North Mexico; to the West a Pacific Railroad; to the North protection to iron and coa.r.s.e woollens; and to the great commercial countries the power of centralization by obvious uses and abuses of a bankrupt act to supply to State banks. Yesterday Biddle was a monster, and to-day a few Wall street bankers can expand and contract upon us more like a vice than he did; and what would they not do if they could force the poor provinces when they pleased into bankruptcy?"

In his later letter--to Mr. Samford, of Alabama--Gov. Wise gave his opinion of the Douglas "non-intervention" doctrine in unmistakable language. He says:

"Intervention for protection, by the United States, through Congress, is all-pervading. It penetrates into States, territories, districts and other places throughout the United States, and is one of the most vitally essential attributes of our blessed Federal Union. No doctrine could be more repugnant to its benign spirit, none more destructive of federal immunities and privileges, and none more fatal to State rights and the safety of individual persons and their property, than this new light of "Non-Intervention" to protect all and everything in the jurisdiction of the United States. It is a question which cannot be retired from discussion in Congress, where it rises up every day in every form, and where it must be met with intelligence, integrity and courage. It cannot be renounced or smothered, or the Government must relinquish its dominion over every subject of its jurisdiction.

"And this doctrine of 'Non-Intervention for Protection' is only equalled in danger and destructiveness by that correlative error of some minds in these days: 'That Congress may not intervene to protect; for if it has the power to protect, it has the power to destroy.' This is a _non sequitur_, and a weak fallacy and gross delusion. The power and duty to protect is the power and duty not only not to destroy, but something far greater--it is the duty to intervene against invasion and violence. The whole American system of government throughout is one to protect against destruction.

Because Congress may and shall provide the writ of habeas corpus, trial by jury, freedom of speech or of the press, etc., etc., shall it, therefore, be said to possess the power to withhold, deny or destroy either or all of these rights?

"But, say some, _cui bono_?--if a majority of Congress are opposed to the protection of the right, what use is there in claiming the mere abstraction of the right? I reply that there is great use and practical effect in it too.

"The proposition of non-intervention is: 'By the Compromise of 1850, the Kansas Nebraska act, and other declarations of its will, Congress renounced the exercise of any direct jurisdiction over the territories, and delegated its power to the local legislatures.' But it concedes that Congress could bestow no authority on the local legislatures of which it was not itself possessed'--in other words, "Congress cannot delegate more power than it possesses itself; and it has none to prohibit slavery.

Very well, and so good as to the power. But there is a positive duty to be discharged as well as a power not to be exercised.

Suppose the territorial legislature attempts to prohibit slavery, and thus do what Congress itself cannot do in the territories. Has Congress renounced its jurisdiction in the case? Could it or can it do so? If not, what is its duty? Does non-intervention renounce this duty of protection, in such a case, or not? It replies that this claim upon Congress to discharge this duty will be vain. Why?

There is a dead majority against us in Congress, and they will not heed the appeal to the legislative department for protection.

"Well, but the case supposes a like dead majority and an aggressive majority against us in the territorial legislature too.--What then? There is no refuge of safety from a majority against us in territorial legislatures. Non-intervention quickly answers this dilemma, by saying: 'let the courts determine between us and our adversaries.' This is what is called 'remitting' the question to the judiciary, which may decide as well as the Congress or the Executive.--True, the judiciary may and must decide, anyhow, in either case, for that was no discovery of Mr.

Calhoun, but a Const.i.tutional function, which has ever belonged to the courts, and of which Congress and the Executive and the Territorial authorities cannot deprive them; and, without any remission by Congress, the judiciary department has the power of deciding upon the validity of laws. And it can as well and more directly pa.s.s upon the validity of laws enacted by Congress itself as upon the validity of those enacted by the territorial legislatures. If Congress pa.s.ses an unconst.i.tutional law, we can go to the courts, just as easy as if the law was pa.s.sed by its delegate, the territorial Legislature. And if Congress does not renounce its direct jurisdiction and delegate it to the territorial legislature, then the latter will have no power to annoy the slave property locally by its abuse of delegated power; and the territorial legislature is more apt to pa.s.s a prohibition than Congress is, for very obvious reasons. The eye of the whole nation is immediately upon Congress, and no positive code is required to establish its power and duty to protect persons and property. The Const.i.tution itself dictates and enjoins both. And it is first of all necessary, that neither the power nor the duty shall be practically denied, embarra.s.sed or obstructed, by the enactment of unconst.i.tutional laws of prohibition. Positive legislation is more apt to be pa.s.sed against slavery by local than by national laws. In any practical view, then, we are attempting to shear a lion instead of a wolf. Non-intervention is simply absurd and impossible, and it is worse than impracticable.

"Such are the teachings to me of our past history, and I trust that I have now demonstrated in the second place: 'That the inhabitants or people of a territory are sovereign to form themselves a const.i.tution and State government as I have shown in the first place, that in their territorial condition they are within the entire control and jurisdiction, or under the entire rule or regulation of Congress, subject to the Const.i.tution of the United States, and that the citizens of each and all of the States are alike equally ent.i.tled to protection in all the privileges and immunities of persons and property, common to equal confederates.

"And this right and this duty of protection is not to be evaded or avoided either by the false _ad captandum_ clamor that a code is required to be enacted by Congress for the protection of slave property. This is but to cast odium upon slavery, by creating the impression that a discrimination is necessary to distinguish it above what is due to other personal and proprietary rights. On the contrary, no such code is required to create either the right or the duty of protection, and no law is necessary to distinguish slave property from any other property. All persons and all property, equally and alike, require only not to be a.s.sailed and destroyed in, or excluded from the common territories. Every species of rights requires laws, it is true, suited to its character and to its case. Personal property, for example, must have a law that it shall not be 'taken and carried away;' and land, which cannot be 'taken and carried away,' must have a law that it shall not be trespa.s.sed upon in some other way; and so with slaves and everything else, they must have provisions according to their kind. But the Const.i.tution of the United States, and the laws of Congress heretofore organizing territories are sufficient, and if amendments of the laws are required, it is the duty of Congress to see that they are provided, of the Executive of the United States to see that they are executed, and of the judiciary to decide upon the rights under the laws. The slave States should never pretend to any peculiar privileges, and do not, so far as I know. They ask only that their rights shall not be a.s.sailed and invaded, and, if they be a.s.sailed, that they may be protected as other personal and proprietary rights are protected; that they may have equal, confederate, federal privileges and immunities, and they ask for no special or peculiar code....

"To escape danger or disaster to themselves, your Congress, and Executives, and judiciary, and State legislatures, shall not, with my consent, be allowed to drop the reins of government and leap from the seats of power and responsibility, and renounce the duty of protection and preservation to all within their care by the ignoring and stultifying and disqualifying plea of negation--'_Non-intervention_.' There are too many elements of discord in this country which require to be restrained by the most active and positive, but prudent intervention. These resolutions of Vermont, the tendency of which is either to drive one section of the States out of the Union, or to degrade and subjugate them in it, are an example. If anything can be worse than disunion to the United States, it would be the more dire alternative of degrading and subjugating any one State by forcing her submission to unequal laws and dishonorable conditions in the confederacy.

The state or section of states thus subdued and humbled, would be unworthy of the union with other free republics, and such a union would be no longer what union now is. It should, then, be the watchful concern of all to maintain and support the honor, dignity, and equality of each; and equality alone can reciprocally maintain the strength of all. If first one and then another may be subdued, finally all but one will become subject to that one, central and consolidated. This should always combine the majority of States to support the weaker portion of the Union against the very appearance of oppression."

Such is the position of Gov. Wise on the slavery question. He is radical in his views, demanding the fullest protection from the courts and Congress for the protection of slavery. The faults as well as the virtues of Gov. Wise he carries openly in his face; if he is bold and imprudent, so he is frank and truthful. There is no deceit in him, and his political enemies know the worst when they know anything of his views or his course.