State Rights and Byron Paine
|State Rights and Byron Paine
|State Rights: Reply to Criticism→|
|Address delivered at Albany Hall, Milwaukee, March 23, 1859. The text of this speech is taken from the Milwaukee Daily Sentinel, March 24, 1859, pp. 2-3. There the following introduction was provided:
See also The Reminiscences of Carl Schurz, Vol. 2, Chap. 3, pp. 112-113, where Schurz disowns the logic of the speech.
Mr. President and Fellow-Citizens: —
Of all the subjects and issues on which I ever was called upon to speak, the question now before us is certainly the most delicate and perplexing. The fierce attacks and rebukes, the appeals to sympathies and passions, which characterize the wild warfare of political parties, would hardly be appropriate here. Reason alone, calm and clear, ought to govern the people when throwing the judicial ermine on the shoulders of a man, and reason alone, calm and clear, ought to govern those, who undertake to advise the people as to what they shall do, or shall not do. And thus I speak not here, in order to please a multitude, or in order to make a display of brilliant figures of speech, but in order to create convictions as strong as my own.
If the people of Wisconsin had forgotten the question at issue in the impending judicial election, the Supreme Court of the United States took care to remind us of it. We read in the public papers as follows: An important decision was delivered in the Supreme Court this morning in the Glover rescue case, appealed from the Supreme Court of Wisconsin. The case involved the right of State Courts to release on habeas corpus parties in custody, under process for offences against the fugitive slave law. The summary of the decision is:
“When a person is in the custody of an officer of the United States, a State may indeed issue a write of habeas corpus, and the officer holding the person in question in custody, must make return to the write, so far as to show that he holds him under a precept of the United States Court, but no further, and that thereupon the power of the State Court is at an end. Neither the formality nor the validity of the process, nor the constitutionality of the Act under which the process issues, can after such return be inquired into, either upon a writ of habeas corpus, from a State tribunal or upon any other State process.“
We acknowledge our obligations to the Supreme Court for this timely notice. If there had been any doubt about the question at issue, none is left now. It is the question of State Rights.
To argue it fully as it deserves to be argued, requires infinitely more ability and information that I possess. I know it, and all I can offer, is a few ideas and considerations, the results of former mediations and inquiries, hastily linked together.
The subject presents itself to my mind in three different aspects: as a question of principle, a question of constitutional construction and a question of policy. I have often heard men sneer at general principles when applied to practical questions of policy. Our government, they say, has grown and developed itself out of facts, not out of abstractions; specious political theories are invented in order to give the results of history an artificial meaning and to befog the practical sense of the people.
” Those who say so, see in history nothing but an accumulation of anecdotes without interior connection.
But I say, whenever men of sense and conscience acted in the discharge of grave public trusts and with a just appreciation of their responsibility, they always followed certain leading ideas, which stood supreme in their minds; they always endeavored to incorporate them in their acts and creations, although, perhaps, without having reduced them to logical constructions and syllogisms. Who will deny that this can be said of the great men who framed the fundamental laws of this country?
The protection of the natural rights of man is the principal aim and end of all political organizations. Civil liberty can be no other than natural; that is, absolute liberty, so far restrained by human laws, as is necessary for the protection of the liberty and rights of the other members of society. This is the fundamental principle upon which our social compact rests. It means nothing but a mutual guaranty of the enjoyment of equal rights. Whatever may be said of the obligations of individual man to society and of society to the individuals — this principle covers it all. It comprehends the duties of man no less than his rights. It implies the surrender of certain rights, by the individual, and consequently certain grants of power to society. But that surrender of rights and those grants of power must not transcend the limits set my that general principle. All surrenders of rights and all grants of power beyond those limits are concessions to despotism. — All assumptions of power beyond those limits are usurpation. Hence the true source of sovereignty is not in society, as the aggregate of individuals, but in the individuals who in the aggregate constitute the people.
It follows that of all forms of political organization that is most in accordance with this principle, in which the most political functions are directly exercised by the individuals constituting the people, and the least power is delegated to artificially constituted authorities. The nearer the source of sovereignty the functions of Government are placed, the more democratic a government is; while, on the other hand, the farther the functions of government are removed from the original source of sovereignty, the more a government approaches despotism.
The true meaning of the term self-government is, that the individuals constituting the people, shall exercise as many of the functions of government as possible in a direct manner. Hence it may be said that the true essence, and the only reliable guaranty of self-government, in the practical understanding of the term, consists in the ramification of political power into an infinite number of more or less independent functions, reserving for individual action as much as can be accomplished. The less extensive that ramification is, the farther will political power be removed from the original source of sovereignty. Political power will accumulate in the hands of a few, or of one governmental agency, and this we call centralization. In whatever manner such governmental agencies may be constituted, in whatever process they may have originated, they will always bear a despotic character. The accumulation of power is the great stumbling block of democratic experiments. It is like a rock under the surface of the water. You are apt not to notice it until the ship strikes. A Republic with centralized administration in it, is no better tha
t a despotism without a nominal King. There the people exercise their right of suffrage only in order to choose their own tyrants, and every popular vote means the suicide of Liberty. [Applause.]
The century in which the general government of this Republic was established and its fundamental laws framed, was exceedingly prolific in theories of government. Philosophers, in philanthropic dreams, built up ideal structures in which mankind was to dwell, and nothing could exceed the irresitible pathos with which human rights were asserted, and the subtle nicety with which they were defined. Those ideas, sublime fancies then, when contrasted with the real state of things in most countries, took possession of the popular imagination. The masses had for a long time borne the burden of their wrongs, which they were suffering, not without resistance, but hardly aware that there was a remedy. Then the doctrines of the rights of man, incorporated in elaborate theories of government, broke upon them like a ray of sunshine. The sullenness of mute suffering gave way to positive hopes, and the people became suddenly aware what they were contending for. Such was the state of things especially in the old world, which brought forth the great revolutionary movements of the eighteenth century.
The people of this continent were remarkably favored by circumstances. Not only had they brought the spirit of self-government over with them from the mother-country, but even in their colonial condition, they had become strengthened in its practice. They had long enjoyed its blessings and its experience. Their great Revolution meant nothing but the further development of principles already established and tried. The problem to be solved was to incorporate those principles in the construction of a general government; or, in other words, to find for self-government a national form.
When they framed the Constitution of this Union, the several States were there, fully organized and clad with absolute sovereignty. There was not tie that bound them together, but that of a common purpose and that of mutual good will. None of them was dependent upon another; each was as free and independent, as if they had been separate and distinct nations.
All those, who are convinced of the truth of the principles before stated, must agree that this was a most fortunate circumstance. It pointed out to the makers of the Constitution the road they had to travel. Standing on the fundamental principle, that the true source of sovereignty is in the individuals who constitute the people, and that true self-government consists in the ramification of political power into an infinite number of more or less independent political functions, they found in the existing State organizations an essential element of that ramification of political authority which constitutes the principal safeguard of self-government, and a firm bulwark against all arbitrary centralization of power. Two principal reasons made the establishment of a central authority necessary: first, the foreign relations of the States, and then, the exterior relations between the States themselves. Being all of them independent and clad with sovereign rights, the States were free to enter into a mutual agreement for specified purposes, delegating a certain amount of authority to a central government and strictly reserving the rest. As the States were built up on the basis of a social compact between the individuals constituting the people, according to the principles before stated, so the Federal Union grew out of a compact between the several States.
In order to invest the central government with the powers indispensable for carrying out the objects for which it was instituted, the States had to divest themselves of them. So they did, and made certain grants of power to the central government, never losing sight of the objects for which it was done. — “In deciding, what powers ought, and what ought not to be granted, the leading principle undoubtedly was, to delegate those only, which could be more safely, or beneficially exercised for the common good of all the States, by the joint or general government of all, than by the separate government of each State; leaving all others to the several States respectively. The object was, not to supersede the separate governments of the State; but to establish a joint supplemental government, in order to do that, which either could not be done at all, or as safely and well done by them, as by a joint government of all.” These are the words of a high democratic authority, Calhoun. The powers of the executive branch of the general government were most exactly enumerated; the range of the legislative department firmly walled in, the scope of the judiciary rigidly defined, and the makers of the Constitution, and of the amendments thereto, took great care to leave not a shadow of doubt about that one all important point, that the powers not expressly delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people. They never lost an opportunity to recognize the sovereignty of the States; in the convention which framed the constitution, they voted by States; they submitted the Constitution for ratification to the States, and made it amendable only by a vote of and by the States; all this, because they designed, in the construction of a general government, to carry out the doctrine of the ramification of political power as the only reliable safeguard of the liberties of the people, and because they recognized the States as the great deposit
aries of organized local self-government. They, indeed, intended to build up an efficient general government; but they were determined not to sacrifice to its efficiency any of the bulwarks of popular liberty. And there stands the constitution, establishing a government of delegated powers, strictly defined and firmly walled in; strong enough to protect the honor of the American flag in every sea, and the honor of the American name in every land; strong enough to protect our frontiers from invasions and the homes of the citizens from lawless violence; but intended not to be strong enough to invade the liberties of the people. (Applause.)
And here let us pause a moment. There is the Constitution of the United States, with all its grants of power, and its limitations and restrictions, with all the great fundamental principals underlying it, and setting forth all the great objects it is to subserve, nicely defined and well-worded, the Constitution, the glorious bequest of the heroic age of our history, the object of our confidence and admiration, and now I tell you, calmly and deliberately, that constitution is not worth the paper on which it is printed, if the authority to construe it, is exclusively and absolutely vested in the central government.
Cardinal Richelieu used to say: “Give me three lines in writing of a man, and I will find a capital offence in it, sufficient to make him swing.” And I tell you: “Give me absolute authority to construe the Constitution of the U. S., as I please, and I will construct under its provisions the most absolute government the world ever saw.” (Laughter.)
Although the innate virtue of the freeman is one of the corner stones of a democratic organization of society, yet those who undertake to frame constitutions of free government, ought never to lose sight of the equally innate frailties of human nature. Political authority, with whatever power it may be invested, with whatever limitations it may be surrounded, has the natural tendency to aggrandize itself. The allurments of power are among the strongest temptations for the human soul, and there are but few men who, in the exercise of delegated authority, will never lose sight of the original rights of those that delegated it. If actuated by the very best of motives, they are apt to become impatient of the restrictions which prevent them from doing all that good they wish to do. Endeavoring to adapt the extent of their power to the extent of their purposes, however honest the latter may be, they will, unconsciously perhaps, overstep the limits of the authority delegated to them, and suddenly find themselves tearing down the guarantees which protect the vested rights of others. They are apt to forget, that an assumed power to do good, in most cases implies an assumtion of power to do evil. And when that restriction is once disregarded, when that limit of delegated authority is once overstepped, where are new limits to be found? Usurpation cannot defend and sustain itself but by new and repeated usurpation. Having originated in an unauthorized accumulation of power, it must try further to accumulate in order not to lose the store of authority already laid up. It never will, it never can stop of itself — it must be stopped by others.
Let us return to the constitution. If the general government established under it be a government of delegated powers, who is to decide how far that delegation of power shall extend? Those who originally possessed the power and delegated it, or those to whom the power was delegated? It may be said, that the constitution conclusively defined those powers and the States, in ratifying and accepting the constitution, formally and conclusively executed the grant. But how, if doubts arise as to the meaning of the constitution? If that narrow line which divides the delegated power of the general government from the powers reserved to the States be lost sight of, and overstepped by one party or the other? If it appears, that the definitions and restrictions laid down in the constitution be differently construed by the different authorities interested — what then?
This, sir, is not an hypothesis expressly got up for the sake of argument. It is not an offspring of a heated imagination. Such things have happened, and such questions have been argued long before this time. Although any convictions as to the philosophical principle involved stand as firm as the columns of heaven, yet I have not confidence enough in my own ability to argue this question from a constitutional point of view.
Fortunately, I can refer you to higher authorities. Under the administration of John Adams, the “Alien and Sedition laws” were enacted. The Republican party, then under the lead of Thomas Jefferson, considered those laws an outrageous encroachment on the laws of man, and a gross violation of the Constitution of the United States. Then the Legislature of Virginia, in December, 1798, passed, among others, the following resolutions:
“The General Assembly doth explicitly and peremptorily declare that it views the powers of the federal government as resulting from the compact to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact, and that in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the States who are parties thereto have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. The General Assembly of Virginia further appealed to the other States, in the confidence that they would concur with that commonwealth, that the acts aforesaid (the alien and sedition laws) are unconstitutional, and that necessary and proper measures be taken by each for co-operating with Virginia in maintaining unimpaired the authorities, rights and liberties reserved to the States respectively, or to the people.”
The subject came up again for consideration in the session of 1799, and was referred to a committee, whose report was drawn by Mr. Madison, than whom no man had more contributed to define and settle the principles upon which the federal Constitution rests.
In that celebrated report Mr. Madison says: “It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued, or violated. The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity as well as to the authority of the Constitution, that it rests upon this legitimate and solid foundation. The States, then, being the parties to the constitutional compact, and in their sovereign capacity it follows, of necessity, that there can be no tribunal above their authority to decide in the last resort whether the compact made by them be violated, and consequently that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
Mr. Madison stood not alone. The Legislature of Kentucky, on the 10th of November, 1799, adopted resolutions equally strong, clear and unmistakable. They were written by the same hand that wrote the Declaration of Independence, and I request all those who call Thomas Jefferson the father of their party, to respect his words. In those resolutions, the Legislature of Kentucky declares: “That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress.” — Thus spoke Thomas Jefferson.
On the 14th of November, 1799, these resolutions were solemnly affirmed, and the Legislature declares that, if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, an annihilation of State governments, and the creation upon their ruins of a general consolidated government will be the inevitable consequence; that the principles of construction contended for by the sundry of the State Legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers.
This is the spirit of the Virginia and Kentucky resolutions. Thus spoke James Madison, the father of the Constitution, and Thomas Jefferson, the author of the Declaration of Independence. If you want higher authorities, I refer you to your own common sense, and your own consciences.
This was the leading idea which was to keep this government of balances and checks alive, that the central government cannot be the exclusive judge of the scope of its authority, and that the States, as parties to the federal compact, cannot have divested themselves of the right to judge for themselves how far the delegation of powers extends. It establishes clearly the doctrine of co-ordinate authorities, and co-ordinate responsibilities.
In referring you to the records of history, I have shown how jealous the first generation of American statesmen were of the sovereign rights of the States, and what apprehensions were created, what fears excited, what earnest demonstrations were called forth, by the first attempts of the general government at the usurpation of power. I might go farther, and speak of the embargo, etc. And what was the occasion of those demonstrations of fear and anger? Those encroachments upon popular rights were indeed severe enough, and fraught with sinister forebodings. They were indeed manifesting clearly enough, the natural tendency of governmental authority to widen its range, and to increase its powers. But, after all, the attempts made, and the objects to be accomplished, were but of an isolated and passing nature, and the persons in power were men of undoubted patriotism. They did overstep the limits of their constitutional prerogative, but we may suppose that they did so by mistake. But if their attempts were considered of so dangerous a nature as to excite the fears and to rouse the indignation of the soberest and wisest men of the nation, what shall we say and do when we see at the helm of our general government an interest of a decidedly aristocratic and despotic character, which tries to undermine the guaranties of popular liberty systematically, and by design? — an interest which most assiduously labors to convert the whole system of our general government into a mere machine for the promotion of its peculiar objects?
I hope the people have not lost all the wisdom of vigilance. Last year I had the honor to address the people of Chicago on a subject similar to this, and the leading ideas of my discourse were, that a democratic system of government cannot bear a direct contradiction between political principles and social institutions, and then, that an interest which is incompatible with a free expression of public opinion, cannot be compatible with a democratic form of government. To-day I will not occupy your time with repeating the argument then made, but I will enlarge upon it, and say, that an interest which thus is incompatible with a democratic form of government, cannot sustain itself except by systematical and unlimited usurpation of power.
Sir, I will not speak hear of slavery as a moral and political and economical evil. I will stifle all my sympathies with the downtrodden and degraded. I will repress that feeling of indignation and burning shame which overcomes me when I hear the clanking of chains in this vaunted Republic of equal rights, and all my horror at the atrocities growing out of the inhuman system I will bury in silence. Neither do I intend here to claim any political and social privileges for the slave, or to assert the rights to which he may be entitled as a member of the human family. We have often been accused of meddling with affairs not our own, and forgetting those interests which concern us nearest, but now I will speak of our
now rights, our own liberties, our own security, and unbiased by sympathies as well as prejudices I shall try to measure the depth of the chasm before which we are standing.
Let me turn to history again. We are told that at the time of the formation of this government all the States were slave States. So they were, but our democratic friends who are so fond of parading this fact as an argument in favor of their theories, forget to add that a majority of the people of all the States but two, were Anti-Slavery people. This fact is so familiar to all who are in some measure acquainted with the history of those days, that it needs no further proof. The question then most earnestly discussed by all prominent and patriotic men, was not how to
to sustain and perpetuate slavery, but how to get rid of it. This was the prevailing spirit of the times when the Federal compact was formed. It dictated all the provisions of the Constitution, which had any reference to the subject; without encroaching upon vested rights, the statesmen of that generation endeavored first to prevent the spread of the evil and then to cut its roots. The ordinance of 1787 was already there, excluding slavery from every foot of territory which the United States then possessed; and the first congress under the constitution solemnly affirmed it. Believing that the discontinuance of the slave-trade would undermine the vitality of the system even in the States where it existed, the Constitutional Convention fixed upon the year 1808 as the final terminus of that inhuman traffic. In a majority of the states earnest efforts were made for the gradual abolition of slavery by the State Legislation. — The existence of slavery, and the vested rights connected with it, were indeed recognized, but with reluctance and as an evil and a disgrace, which unfortunately could not be exterminated at once. This was the spirit out of which sprang the Constitution of the United States.
Then the cotton gin was invented, and strange enough, a progress in manufacturing industry worked a deplorable re-action in moral and political ideas. Slave-labor, drooping in most of the States, became suddenly profitable, and the sordid greediness of gain crushed down, in a great many hearts, the love of principle. Slavery, instead of being an evil, a scourge and a disgrace, became suddenly a great economical, moral and political blessing. [Laughter.] New theories of government sprung out of this economical resolution, and the same system of labor, which but a short time ago was considered the foulest blot on American Society, was suddenly discovered to be the corner stone of Democratic institutions. [Great laughter.] Even the ministers of christianity joined in the frantic dance around the golden calf and anoited it with the sanction of divine origin. [Applause.] It claimed an equal rank with the despotism of the old world. Why should it not? It has the same tendency. Slavery formerly proscribed by public opinion and merely tolerated for the sake of temporary convenience, went now in quest of absolute political power. The deep eternal antagonism between a constitution founded upon the doctrine of equal rights, and dictated by an anti-slavery spirit on one side, and a despotic interest, impatient to acquire unlimited authority on the other, became at once manifested. And here begins that long catalogue of attempted and successful usurpations. On this let me dwell a moment.
First, the slave power wanted consolidation at home. It planted itself there upon the doctrine of State Rights, in order to protect itself from outside interference when adapting the laws and institutions of the several slave States to its interests and aspirations. It proceeded methodically and according to the established rules of despotism. — Whenever the rights of man and the fundamental liberties of the people, free speech and press, the writ of habeas corpus, the trial by jury came into conflict with the ruling interests, they were unceremoniously overridden. In some of the States the possession of slaves was and is recognized as an indispensable qualification for office, and in a great many respects established customs supplied the deficiencies of the laws. The slave power assumed an absolute dictatorship, which gradually absorbed all the guaranties of popular liberty. So much for its home policy. But it did not stop there. After a while it was discovered that slave labor could not prosper unless it was suffered to expand, and unless the other States contributed to its protection. Then the slave power left its defensive policy and commenced its system of aggression. Its consolidation at home could be effected by State Legislation, but for its protection and expansion outside of the State limits it wanted an absolute control of the general government. In this direction the doctrine of State rights could no longer serve, and was unceremoniously cast aside. It wanted to control the Free States also, and then “more power” was the watch word, and centralization its settled policy. That policy was natural; it is the only one consistent with the character of the “peculiar institution.” (Applause).
But now look at the struggle; here is the whole past history of this Republic, here the doctrines of the Declaration of Independence, here the anti-slavery spirit of the fathers of the constitution, here the ordinance of 1787, here the reserved rights of the States, here the solemn compacts between the different portions of the Union, here the guaranties of our liberty, free speech and press and habeas corpus and trial by jury, here the moral sentiment of a large majority of the people, here the voice of civilized mankind, here the conscience of patriotism, here the anxious prayers of the down trodden humanity, and there — the slave power armed with boldness and unscrupulousness, and settled purposes, and speculating on the vilest propensities of the human soul. [Loud applause.]
Oh sir, the struggle by which the slave power obtained sovereign control over the general government of this Republic is certainly the darkest period of American history. We might see our flag insulted with impunity, our armies beaten and the wrecks of our navy covering the seas, and we might find no disgrace in our disasters. Such defeats can be repaired by new efforts; but the victory which the slave power achieved over the moral character of the nation must fill every patriotic heart with everlasting shame. Such a defeat dishonors us before ourselves.
Only consider how it was accomplished. — The slave-holders, and those immediately interested in that system of labor, formed but a small minority of the people; but that minority was bound together by the iron bonds of interest. It was united and compact, governed by one idea, ruled by one will. In all the contests of political parties, they held the casting vote, the balance of power, and they knew it. If the political parties of this country had been more actuated by motives of principle, and less by motives of expediency, this circumstance would have been of no decisive moment. But, sad and humiliating as it is, it cannot be denied that at the period of our history of which I speak, the political organizations of this country were hankering more after party triumphs than after victories of principle. Trying to buy the good will of the south by making concessions to the slave power, they yielded point after point, outdoing each other in servility. Well did the moral sense of the people rise in revolt from time to time, as in '40 and '48, but the politicians, greedy of the spoils or official honors, succeeded in debauching the political morals of the people again and again, and after short struggles, the slave power resumed the staff of command. Aye, northern men were put to shame by slave-holders who, like the gallant Kentuckian, did not suffer their generous impulses to be stifled by their education, and their interests, and we had the deep mortification to see even one of the giant minds of the Free States, in an evil hour, pluck down his laurels leaf by leaf, and prostrating himself before the ruling power, make humble bids for southern favor.
The slave power understood its business. Their forces fought in dense and well-drilled columns, unscrupulously obeying the command of unscrupulous leaders. There was unity, plan and system in their operations. — Although but a minority they ruled it all.
Thus they obtained possession of all the departments of the general government. — And how did the slave power use its omnipotence? Examine the records of history. Look at the wars brought about by its conspiracies; at the blood of the people shed for the sake of its extension! Look at our commercial policy shaped according to its desires! But worse than that, look at the encroachments upon State rights and the fundamental liberties of the people, which it attempted for the sake of its protection.
A State formed out of the territory acquired from Mexico, demands admission into the Union. It had the impudence to form an anti-slavery constitution, and the slave-power refuses to receive it. At last the South consents on the condition that an equivalent be given by the surrender of some essential part of the sovereignty of the States. The political parties submit again, and there is the fugitive slave act of 1850.
I will not test your patience with a lengthy argument on its constitutionality. Those who were fortunate enough to study the argument of my noble friend, Byron Paine, (loud applause and cheering) in the Glover Rescue case, an argument which by its lucidity and force and that warm enthusiasm in the defence of human rights would alone be sufficient to establish his claims to the highest esteem, confidence and gratitude of his countrymen, and those who have read the equally able opinions of our gallant Supreme Judges, need no further elucidation on that point; and those who have not, ought to do so at the earliest opportunity. But I am afraid, a great many who need it most will not do so, for there is a class of moral cowards of so deep a dye as to be afraid to think because they do not know what they will think when they once have fairly commenced. — Suffice it to say, that by means of the central government the slave power wanted to rule the free States as it ruled its own.
We had supposed we were freemen, but we are told that we, as an impressed police must aid in the pursuit of fugitives who escape from their master's whip. We had supposed that within the boundaries of these States the humblest human being was entitled to a trial by jury, but we are told that the laws of the State are not in existence for a man, whom some slave holder may, with or without right, claim as his property. — We had supposed that the States might perform the duty to deliver up fugitives, as the constitution has imposed it upon them, according to their own forms of justice, but we are told that the judicial satraps whom they have set over us, may sneer at the Stat
ue authorities and whip them in according to their sovereign notions. And here let me add for the information of those who mix up the fugitive slave act with the fugitive clause in the constitution, that there is a vast difference between the delivering up of a fugitive by a State in pursuance of a regular process of law and the taking of a man by the federal authorities claimed as a fugitive without any process of law, and that a man may be perfectly willing to yield the strictest obedience to the constitution and yet most earnestly repudiate the fugitive slave act which ignores that essential feature of the constitutional provision which entrusts the performance of the duty to surrender fugitives to the hands of the State authorities according to their own laws and forms of justice. Aye, sir, even the “alien and sedition laws,” were hardly a more palpable violation of the Constitution, a more serious blow on the guaranties of popular liberty, a more atrocious outrage on the moral dignity of the citizens than this abominable act of 1850.
But the slave power did not stop there. It found its progress too slow. With one sweeping blow it struck down all the barriers, which first the spirit of the Revolutionary times, and then the solemn compacts between the different portions of the Union had set to the expansion of slavery. It undertook to declare everything constitutional that would help the progress of slavery, and everything unconstitutional that would stop it. Thus the time-honored compact of the Missouri Compromise was swept away from our statute books. But even that was not enough. After they had opened the territories covered by the Missouri Compromise to the ingress of Slavery, under the hypocritical, contemptible mask of the popular sovereignty doctrine, the Federal Supreme Court, instead of merely expounding the law, tried its hands at law-making, by means of an extra judicial decision, and declared (for which even a democratic Congress would hardly have had boldness enough) that Slavery existed in all Territories by virtue of the federal constitution, and can not be abolished there as long as the people remain in a territorial condition; and it may be noted here as an illustration of the doctrine that, by act of Congress, the people of Kansas were permitted to quit that territorial condition, provided they would submit to a pro-slavery constitution; not of their own making, but if not, not.
There we stand now. Where we shall stand ten years hence I am unable to foresee. But I do see that the future policy of the ruling power will not differ from that heretofore pursued. Old measures will prove insufficient, and new ones will be adopted. Despotism will grow mad in its struggle against increasing opposition. Has not the slave power laid its programme plainly enough before you? Has it not told you often and emphatically enough, that it is ready to sacrifice the Union, and the Constitution, and the peace of this Republic, and the welfare of the States, and the liberties of the people, to the interests of slavery? (Aye! aye!) And, indeed, having no higher object than the protection and further development of a despotic organization of society, how can it act otherwise? How can it respect the rights of man, which are in direct contradiction to its very essence? How can it respect the freedom of public opinion, which pronounces against it? How can it respect the fundamental liberties of the people which are an obstacle in the way of its aspirations? How can it respect the spirit of the Constitution, which is hostile to its pretensions? How can it respect the constitutional limits of the powers of the general government, which impedes the execution of its plans? How can it respect State rights, when it deems them incompatible with its safety? How can it abstain from usurpations of power since that is the only means by which it can sustain itself
. How can it abstain from promoting a complete and despotic neutralization of power, since that is the natural consequence of systematic usurpation once commenced? — Such is the power we have to struggle against; a power aspiring, grasping, unscrupulous, consolidated and despotic by nature. He indeed, must be blind, who does not see the abyss yawning before us.
But I am told that a great political revolution has taken place; that the opponents of Slavery are rapidly increasing in the U. S. Senate; that the popular branch of the National Legislature will soon be in their hands, and that they may succeed in placing one of their own, even into the executive chair of this Union. All this may be so, and, indeed, I expect it will work well; it will deal a blow to the usurping despotism from which it will not easily recover. But all this may change again; the current of popular notions is of an uncertain nature. There may be a sand bar to-morrow where there is the deepest channel to-day; and it will never be safe to place your calculations with too much reliance on days to come.
Do not forget, that by means of the courts, the law reaches the individual, and that there is one department of the general government whose members but rarely die, and almost never resign. And here, sir, I touch one of the sorest points of our national polity. The Federal Judiciary is an anomaly in our Constitutional system. It is the only branch of our general government which stands above all responsibility. Our Presidents, our Senators and our Representatives are responsible to their constituents. They are tried in the Supreme Court of public opinion! But where is the tribunal to which the federal judiciary have to answer for their official acts? It is true they are subject to impeachment, but for what? For treason, bribery and other high crimes, and misdemeanors. But a judge may be an inexorable tyrant, without being considered a traitor under the laws; he may adulterate the free spirit of our institutions without being a forger of bank bills; he may murder the rights and liberties of the people, without committing
, assault and battery; he may debauch the laws without being guilty of rape; he may be the most contemptible scavenger of an interest in power, without ever receiving a bribe. Where, then, is his responsibility? How can he be reached if he poison our constitution and lie away our rights and liberties?
Once a federal judge, he stands above public opinion, above the will of the people, above laws and constitutions.
Once a federal judge, no power on earth, save a revolution, can remove him. There is, then, a department of the general government originating in the appointing power of the general government itself; irresponsible to the people; for their terms of office end only with their lives; irresponsible under the constitution, for they decide for themselves what the constitution is. Where is, then, the security of our rights? Where the guaranty of our liberties?
Do not tell me that the character of the judges and their exalted and independent position, will place them above the reach of common motives. Oh, sir, it has been said, and repeated, ten thousand times, that judges are but mortal men; very, very mortal in one respect, and sometimes, unfortunately, not quite mortal enough in another. But suppose the members of the federal judiciary were far above the average in purity and honesty, will that prevent them from erring? Will it exalt them above the temptations to extend their jurisdiction, and to stretch their power, which so often silently, and almost imperceptibly will creep over them? You may ask me why a fair and honest man, to whatever political creed he may belong, should not be likely to construe the laws, and to administer justice according to the true and honest dictates of his conscience? This may be so, but review the history of our political struggles, and then answer me the question, how it happens that two men, of equal ability and learning, but of different political creeds, will, when starting from the same premises, so seldom arrive at the same conclusions? The reason is that there are but few men whose convictions are not ruled by their sympathies, whether their sympathies have grown out of their education, their interests, or the nobler instincts of human nature. I do not hesitate to say that the different currents of argument which distinguish our political parties from each other have engendered in the minds of men, different systems of logic, which can hardly be brought into agreement. People almost cease to understand each other. Is not this the most charitable thing that can be said of our federal judges? What other conclusions might we not come to, if we would undertake to enquire into their real motives? But we can afford to be charitable, and to put the most favorable construction upon their most atrocious decisions. In this spirit let us take a rapid glance at the records of the Supreme Court of the United States.
What stretch of authority, what violation of the constitutional rights of the people, what encroachment upon the sovereignty of the States was ever attempted by the general government, to which the Supreme Court did not readily give the sanction of its decisions? Were not the “alien and sedition laws,” were not the regulations of the embargo and non-intercourse acts, was not the act incorporating a bank of the U. S., and other laws of a similar nature boldly declared constitutional? Did not the Supreme Court even go ahead of legislation in the Dred Scott decision? How do you account for this? It is the natural tendency of governmental authority to consolidate itself, to widen its range and to overstep the troublesome limits which stand in the way of its ambition. Nor will the different independent departments of our general government, in this respect, operate as checks upon each other. Although, sometimes, they may not suffer one to encroach upon the sphere of the other, yet they will mutually contribute to the increase of the powers of the general government as a whole. Every assumption of power carried out by the legislative and executive branches, will, at the same time, enlarge the scope of the judiciary, and the judiciary will never fail, by their decisions, to authorize and encourage the other branches to new transgressions. Although they may be jealous of each other in their respective spheres, yet, when actuated by the same motives, as now, they have a common cause against the reserved rights of the States and the people.
But the judiciary made a rapid stride onward. It did encroach upon the spheres of the other departments in the Dred Scott case; and these not only did not resent the transgression but submitted to it; nay, hailed it with joy, for the irresponsible department of government had done an act which the responsible desired, but did not dare to accomplish. And here mark the importance of the irresponsibility of these men, who so rarely die and never resign. Whenever the responsible branches of government may hesitate to venture upon an act of doubtful character, they will entrench themselves behind the irresponsible department and the latter may serve as a screen to the most glaring usurpations of authority. (Applause.)
Do you remember how Mr. Buchanan's administration and that whole host of moral cowards who ridiculously enough, call themselves the unterrified (laughter) slunk and sneaked behind the decision of the Supreme Court in the Dred Scott case? Do you remember when they did not dare to own the abominable pro-slavery principles involved, how they used it as their main argument, that the highest judicial tribunal had spoken, and that resistance to that decision would amount to nullification and treason, thus throwing the odium and the responsibility upon a department of government which is irresponsible to the people
. Do not say, that a peaceable political resolution can change this! Give us the President and the Senate and the House, and still, there is a citadel of the slave power, and of all the usurping and despotic tendencies of governmental authority which cannot be carried by storm; there is an irresponsible branch of government unelected by and independent of the people, which sets itself up as the sovereign arbiter of the constitution, which claims exclusive authority to decide what powers the States have delegated and what powers they have reserved; which claims supreme control over the State courts by its appellate jurisdiction, making laws in expounding the federal compact, and by extra judicial decisions blazing the track in which the legislative and executive branches have to follow.
There is centralized authority in full play. There a function of government claiming to be supreme, removed from the original source of sovereignty to an unmeasurable distance, entrenched in irresponsibility, endeavoring gradually to absorb all the organized powers around it. Sir, it requires but little sagacity to discern the danger and to foresee the consequences. Thirty-eight years ago there was a man who saw it with a prophetic eye; his name was Thomas Jefferson! Here is what he then wrote: “We already see the power enstalled for life, responsible to no authority (for impeachment is not even a scare-crow) advancing with a noiseless and steady pace to the great object of consolidation. The foundations are already [deeply] laid by their decisions, for the annihilation of constitutional state rights. [. . .] This will not be borne; you [will] have to choose between reformation and revolution. If I know the spirit of the country, one or the other is inevitable. Contrary to all correct examples they go out of the question before them to throw an anchor ahead and grapple further hold for future advances of power, they are then, in fact, the corps of sappers and miners steadily working to undermine the independent rights of the States.
Nothing in the Constitution has given them the right to decide for the executive, more than to the executive to decide for them. [. . .] The opinion which gives to the Judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action and for the legislative and executive also in their spheres, would make the judiciary a despotic branch. If this opinion be sound, then indeed is our constitution a complete felo de se; for intending to establish three departments co-ordinate and independent that they might check and counterbalance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others and to that too which is unelected by, and independent of the nation.
This will not be borne! says the author of the “Declaration of Independence.” Revolution or reformation is his alternative. Sir, the people will have to resort to revolution when it is too late for reform. But as long as reform is possible, it will be too early for revolution. Where is the possibility of reform? It is as a return to first principles. It is in a revival of the original spirit of the constitution; it is in strict construction.
I called the federal judiciary which is unelected by, and independent of the nation [an] anomaly in our political system. All anomalies of this kind are dangerous, this may become fatal, but here it is, and we have to deal with it as it is.
Sir, if ever it was necessary, in order to protect the reserved rights of the States and the liberties of the people from unwarrantable encroachments, to define the delegated and reserved powers with strictness and nicety, it is of hundred fold necessity with regard to that department which is not under the control of popular elections. If ever a system of checks and balances was needed, it is needed there. If ever strict construction was called for, here it is. There is the irresponsible authority; we must give it its pound of flesh, but it shall have not a drop of christian blood. [Applause.]
The Constitution, in the third article, has defined its jurisdiction in precise terms. Does this article really confer upon the federal judiciary the exclusive and sovereign authority to decide on questions of Constitutionality? Does it set up the federal judiciary as the sole and sovereign arbiter of the federal compact; does it really put the reserved rights of the States defenseless into its hands?
Let us hear Mr. Madison's construction; in his celebrated report on the Virginia resolutions, already referred to, he says, “The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers, beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another; by the judiciary as well as by the Executive or Legislative.”
However true, therefore, it may be that the judicial department is in all questions submitted to it by the forms of the Constitution to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government, not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis the delegation of the judicial power would annul the authority delegating it, and the concurrence of this department with the others in usurped powers, might subvert forever and beyond the reach of any rightful remedy, the Constitution which all were instituted to preserve.”
If this is true, and indeed common sense cannot come to any other conclusion, there must be a concurrent jurisdiction on all questions concerning the powers delegated or reserved by the States counterbalancing that of the judicial branch of the general government. If Mr. Madison's doctrine is correct, then it cannot be true, that, when a man is held under a process of the United Supreme court, neither formality nor the validity of the process, nor the constitutionality of the act under which the process issues can be inquired into either upon a write of habeas corpus from a State tribunal, or any other State process, as the United States Supreme Court over-wills it.
But there we find a new stumbling-block in our way. What is that concurrent jurisdiction worth? where is the system of checks and balances? where is that bar to unwarrantable authority, if the Federal Judiciary possess appellate jurisdiction over the State courts? If by a single dash of the pen, the federal supreme court can reverse everything that the State courts may attempt to do for the protection of their reserved rights? Sir, if the federal judiciary so possess that appellate jurisdiction which they assume to exercise, then they absorb all judicial authority within the boundaries of this Republic; then State rights are but a mere, wild delusion; then the ramification of self-government is completely at the mercy of a centralized and uncontrollable authority.
I cannot undertake to argue this question according to its merits; having pointed out the dangers, I will confine myself to a few leading facts and ideas.
The appellate jurisdiction of the Federal Supreme Court over the judiciary of the States originated in the judiciary act of 1789. When the constitution was framed, there was a general apprehension prevailing among the law givers of this Republic, that the powers of the general government would prove too weak to resist the influence of the state governments, and that the latter by a system of transgressions would defeat the very objects for which the general government had been instituted. Out of this mis-apprehension grew the judiciary act of 1789. By conferring on the Federal Supreme Court appellate jurisdiction over the judiciary of the States, it was intended to counterbalance the disorganizing influence supposed to be exercised by the latter. A few years experience sufficed to demonstrate that the real danger lay just in the opposite direction.
But the question arises; has this appellate jurisdiction any foundation in the Federal compact? It is a significant fact that in the constitutional convention many attempts were made to confer upon the general government some such supervisory power over the States, but they all failed.
Edmund Randolph proposed to invest this supervisory power in the National Legislature. The committee of the whole, to which Randolph's plan was referred, reported a provision, giving “to the National Judiciary jurisdiction of all questions involving the national peace and harmony.” Charles Pinkney and Hamilton made similar propositions, but the Convention positively refused to confer upon the general government any such power.
But if the convention refused to confer it, where is it to be found in the constitution? Those who wish to study the matter thoroughly I would refer to an opinion of Chief Justice Bartley, of Ohio, rendered in 1855.
“The whole judicial power of the federal government is conferred by the third article of the constitution. The first section of this article prescribes the courts in which this judicial power is vested in the words following:
‘The judicial power of the United States shall be vested in the Supreme Court, and in such inferior Courts as the Congress may, from time to time, ordain and establish.
” The second clause of the second section of the article distributes the jurisdiction under which this judicial power is to be exercised, as follows: “In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases, before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.’”
These two provisions contained in the same article, and closely connected in their relation to the same subject matter, must be construed together. The whole jurisdiction conferred, is vested in the Supreme Court of the United States, and the inferior Courts established by Congress. None of the judicial power of the United States, therefore, can be exercised by any other courts but these mentioned in this article, and clearly, none other could have been in contemplation. In a few specified cases only, is original jurisdiction given to the Supreme Court; as to all other cases the jurisdiction of that Court is appellate.
An appeal is the removal of a suit from the determination of an inferior court to the jurisdiction of a Superior Court under the same judicial system. It is a continuation of the same suit under the judicial power of the same government, but on the jurisdiction of a higher court than that in which it has been once decided. Appellate jurisdiction, therefore, always implies the existence of subordinate courts in the same judicial organization, over which the court in which it is vested, exercises a supervising or correcting control. The appellate jurisdiction which is here vested in the Supreme Court of the United States is conferred in the same constitutional provision, which authorizes the establishment of the inferior Federal courts, as well as the Supreme Court; and of course has a direct reference to appeals from the inferior Federal courts, being the subordinate courts under the same judicial organization. No other courts than the U. S. courts are mentioned, or even alluded to in this article of the constitution, and none other could have been contemplated. The constitution contains no provision creating any connection between this and any other judicial organization. When, therefore, this constitutional provision distributes the judicial power of this system, by vesting appellate jurisdiction in the Supreme Court, it would be a gross absurdity to say that this appellate jurisdiction could have reference to anything else than the appeals from the inferior tribunals here mentioned, as belonging to the same systems.
I have no time to enlarge upon this argument which in itself is conclusive.
This doctrine is by no means a novel one. It is true that the federal courts always decided in favor of themselves, and yet they have seen themselves obliged to abandon the jurisdiction of many things, as for example crimes at common law, which they had formerly assumed. But there were other courts before ours, and other States before Wisconsin who not only repudiated that appellate jurisdiction but successfully resisted it. The Supreme Court of Appeals of Virginia in the case of Hunter against Martin, in which the validity of a treaty of the U. S. was drawn into question, unanimously repudiated the assumption of appellate power, and declared the 25th article of the judiciary act unconstitutional.
The courts of Georgia, in the cases of Worcester against the State of Georgia, and of Butler vs. State of Georgia, did the same. — Virginia and Georgia never acquiesced in this power, and a few years ago in the case of Padelford, Fay & Co., vs. the city of Savannah, the Supreme Court of Georgia condemned the usurpation in the strongest and severest terms. Even old timid Pennsylvania did not remain behind. In the case of Commonwealth vs. Cobbett, the Supreme Court of Pennsylvania sternly repudiated that appellate jurisdiction and most solemnly refused to submit to it. It is said that about one of the Georgia cases, application was made to Gen. Jackson, then President of the United States, to enforce the decision of the Supreme Court by means of the executive power. But old Ironside, as on other occasions, gave the significant answer, “I have sworn to support the constitution of the United States as I understand it; and here I understand that the State Courts are right.“ (Applause.)
Thus old Ironside, where is the Jackson Democracy!
It is true, that in a great many cases, the appellate jurisdiction was submitted to with reluctance and silence, but no State Court, which ever drew the matter into consideration, ever formally acknowledged or approved it, except that of Ohio, Chief Justice Bartley dissenting.
And now, there stands our own Supreme Court, gallantly asserting the reserved rights of the States, repudiating the unwarrantable assumption of undelegated powers, throwing itself forward against the onward march of centralizing usurpation, standing up in the defense of the trial by jury, and the writ of habeas corpus, true to the constitution and true to the liberties of the people; — and there is the Federal Supreme Court, with all its boasted appellate jurisdiction, with the whole power of a servile executive at its heels, sending a lawyer to buy of the Clerk of your Supreme Court a transcript of a judicial proceeding, and then, in that miserable, sneaking way, undertaking to reverse that decision, which is the pride of our State, and promulgating the astounding doctrine, that “when it is shown that a man is held by an officer of the U. S., under a process of the U. S. court neither the formality or validity of the process, nor the Constitutionality of the act under which the process is issued, can, upon such return, be enquired into, either upon a writ of habeas corpus from a State Tribunal, or any other State process;” — and then there are the people of Wisconsin, seeing this irresponsible authority which here arrogates to itself the exclusive right to construe our laws and compacts; seeing our liberties invaded, the State Courts that protect us, treated with contempt;called upon to endorse the one or the other by a solemn vote; called upon to either stem the current of growing centralization or to open the flood-gates still wider; called upon to stand up for their own rights, their liberties, their own honor, or to abandon them, what will they do?
Listen to Jefferson once more: “You will have to choose between reformation and revolution. If I know the spirit of the country the one or the other is inevitable.” Poor old father of the Declaration of Independence, he knew the spirit of this country indeed but little. He dreamed not that a generation following his own would be so deeply demoralized by perpetual acquiescence in the tyranny of the slave power, as to shrink back from his proud alternative — Reform or Revolution. — He did not foresee that there would be a class of men among us, prostituting his name by styling themselves his unterrified followers, who would invent a third expedient, not thought of by him, which is Submission. [Great Applause.]
What submission! The democratic party speak of submission! Did they not in all their platforms and addresses most forcibly impress it upon our minds, how inexpedient and dangerous it is that the general government should exercise doubtful constitutional powers. Mark well, not unconstitutional powers, but powers the constitutionality of which is in doubt. They speak of strict construction, while they permit the widest latitude to the slave power. They swear fealty to the constitution with all its compromises while they unceremoniously strike down the Missouri Compromise. They speak of popular sovereignty, while they try to force upon a people a slave constitution against their will. — They declaim of their tender love for the poor and landless, while they vote down the Homestead bill. They speak of retrenchment and economy while their administration is the most profligate the country ever saw. They boast of having established free trade, all the while voting for higher tariffs.
There may be superior wisdom in this policy, far above my comprehension, but I cannot help deeming it somewhat unreliable, unless we may rely upon their acting just contrary to their promises and professions. — They have an excuse for this, though; they say that the Republicans have stolen their best principles from them! Yes, gentlemen, we have stolen them from you and they are no longer in your possession! (Great applause.) But the matter is of too serious a nature to be passed over with a joke. I will tell you the secret of their inconsistency. — As soon as the doctrine of State rights turns its point against the slave power, the very same moment the Democratic party turns its back upon the doctrine of State rights. There it is! I defy them to deny it in the face of history. Is that the beacon whose dangerous light we have to follow?
People of Wisconsin, we have come to a point where it is loyalty to resist, and treason to submit. You have to choose between reformation and revolution! You shrink back from revolution? Then do not forget, that the straightest way to revolution is macadamized with submission and acquiescence.
Sir, it is a common thing to see man quail before great responsibilities. This is one of the weaknesses of human nature, but that weakness has been the source of the greatest calamities which ever befell the nations of the earth. Look over the annals of the world and then tell me, is it not true, that the cruellest tyranny and the bloodiest revolutions would hardly have disgraced the history of mankind if nations had not submitted and acquiesced when it was time to resist? The advocates of submission when there was to be resistance; the advocates of peace, when war was necessary, have to answer for seas of blood and tears. They were a greater scourge to humanity than all those warlike adventurers whose glory consisted in the number of their slain, and whose immortality is measured by the extent of their devastations.
The arguments of these false prophets were the same in all ages and in all countries; they are the same here and now.
They tell us “there must be a supreme authority, to which
, everything else has to submit; your doctrine of co-ordinate powers and concurrent jurisdictions will incessantly bring forth collisions and conflicts.” Sir, that is the language held by the advocates of centralized authority and despotism throughout the world. There is but one form of government in which there are no collisions of co-ordinate authorities, no conflict of concurrent jurisdiction, and that is complete absolutism. Will you have it? “Submit, or there will be conflict!” Indeed! Since when have the people of this country become so sensitive on that point? That was the language held to the colonies 90 years ago. Submit to the tea-tax, submit to the stamp-act, or there will be conflicts. And what did they answer? An old church in Virginia can tell the story! The answer was — “Let them come.” Aye, they came; there were conflicts, and out of the confusion sprang, like Pallas Athene in full armor, the greatest Republic of the globe! Why does your courage fail you now?
Sir, whenever political life is regulated by constitutional forms, and by that infinite ramification of power, called self-government there can be no uniformity and regularity of movements, like that of a clock. There will be occasionally a state of things which may look like confusion; why? because no legal interest can be interfered with, no right can be encroached upon, no liberty can be attacked by one function of governmental power, without finding a ready defence in a parallel authority, or in a co-ordinate jurisdiction.
There will be collisions, but in the very necessity of those collisions and conflicts is the safety of our rights and the guaranty of our liberties. If these rights and liberties are not rashly given up and yielded, such conflicts will be settled by a higher tribunal than that of the federal Supreme Court. I mean the tribunal of public opinion. We have seen such conflicts before; there were the alien and sedition laws, and numerous other collisions I have mentioned. The people did not yield; and yet these conflicts were settled over the head of the federal Supreme Court — and the Republic is still there. (Applause.)
They say: “If there is no supreme authority, to which all others must yield, how will it be possible to maintain law and order.” Sir, I have heard that argument before I landed upon the shores of this Republic. I have heard this claim set up against all liberal aspirations in the old world; against every attempt of the people to throw off the shackles of despotism. And, sir, it fills my soul with sinister misgivings when in the very bosom of this republic, I see them instill into the hearts of the people that superstitious belief in the necessity of a strong central government.
People are but to apt to take a childish pleasure in the great actions of state, performed on the boards of our general government. They already like too much to see their servants appear in a gorgeous outfit of power and act the great and mighty. Take care not to make them forget that the principal guaranty of their rights, their liberties, their security, their welfare and their greatness does not
not consist in a splendid representation, but in that dismemberment of political authority which keeps the power near the original source of sovereignty; a system which is modest in its outward appearance, but renders governments weak in doing mischief, and the people strong in doing good.
Law and order! You must indulge me sir, if I have a little more distrust in that device than many of my friends. There was no crime ever committed by the bloodiest despots for which “law and order” was not used as a ready plea. “Law and order” was written on the banners of Louis Napoleon when he cemented his empire together with the blood of the people. “Law and order” has reddened the green waters of my beautiful Rhine, and marked with bloody streaks the waves of the Danube. Go to the old world, and on the gateposts of the European Continent you will find the inscription, “law and order,” in characters of blood and fire. Go and study it, and you will learn how beautiful it is, under the dazzling splendor of their strong governments; that sublime order of barracks, and that serene tranquility of grave yards. (Applause.)
You may tell me that I exaggerate, and that such things are far off. Perhaps I do exaggerate. I wish these things were farther off than many of you suppose. Take care lest unexpected events shake you up from your dreams of security. Do you not see the general government surrounding itself with all the paraphernalia of centralized authority? do you not hear the incessant cry of more soldiers, more ships, more money, more discretionary power? Do you not see a government determined to carry its point at all hazards? Do you not see the hideous monster of the constructive treason doctrine lurking behind the supreme bench?
Do you not see those petty pro-consuls, the federal district judges, who feel big when they can show their power? Did you never see them meddle with your domestic concerns, see them sneer at your state authorities and wantonly set your state laws at defiance. Ah, is your recollection so short! Did you never hear of the federal soldiery levelling their bayonets at the breast of the citizen in order to enforce — what? the fugitive slave law, a law by virtue of which, they may impress you and me as a police force to hunt up a man who has broken his fetters? Did your cities never resound with the crack of the federal musketry? Have you forgotten that federal army was sent to subdue the people of Kansas, who had the impudence to make laws for themselves? Have you never heard the threat, we will subdue you! Exaggeration, indeed; you have but to submit and acquiesce a little longer, and that power which rules over you, will teach you to tell truth from fiction.
Sir, do not set me down as an advocate of disorder and disunion. Oh sir, I have spent many a midnight hour over the awful problem, how human liberty can be brought in accordance with the strictest order of the social machinery; how the conspiracies of lurking despotism can be disarmed without a struggle and the rights of man be placed above all dangers of collision and conflicts. — I long to see descend to us that sublime order which reigns in regions above, where different solar systems rotate side by side, in eternal harmony, undisturbed even by the wanderings of the comet which draws its irregular lines across their spheres. But since that cannot be, since error and prejudice and passion stand in the way of human perfection, I do not want to see the safe guards of our rights and liberties surrendered without a struggle. I rejoice to see collision and conflicts unavoidable, when our highest good is put in danger.
Disunion! I am asked — will not with your doctrine of co-ordinate powers, the union be “a rope of sand.”
Sir, it is better that this union be a rope of sand around those who are willing to stay together, than a rope of hemp around the neck of Liberty. [Loud cheering.] “Liberty and Union, one and inseparable.” Aye, sir! Liberty and Union! and cursed be the hand
han dthat attempts to strike down liberty and thus to emasculate the union. [Hear! Hear!] Cursed be the villain who shall try to tear asunder this sacred wedlock from which springs our prosperity, our power and our greatness! May this union stand forever the guardian of human rights, the champion of human liberty, the bullwark of true self-government! [Long continued Applause.]
Do not think that we who are born in foreign lands watch its progress and safety with less solicitude than you. If possible, still deeper anxiety fills our hearts. For you know only what this union is worth to yourselves; but we who mourned over the downfall of liberty when we first saw the light of day, we know what it is worth to the world! [Applause.]
May I never behold the day when the people of this country, setting on the ruins of their greatness, their hearts full of grief and sorrow, will, with wistful eyes, look back on times gone by, and scrutinize the pages of their history, and say: — here we ought to have resisted, and there we ought to have stood firm and so we ought to have stemmed the current of centralizing power, and all would be well now!
May never the dismal word, too late! darken the annals of this country. May this nation, in time, remember the old battle cry, “We must preserve our liberties, or perish in the lost ditch!” [Loud Applause.]
Gentlemen, this finishes my argument, and now I have a few words to say about the candidates.
It is not my custom to discuss the merits of persons, who are candidates for office when questions of such moment are to be decided. I take them as fair representative of those who have nominated them. And here I can not find terms severe enough to condemn that narrowness of mind of those who are endeavoring to reduce our great struggle for State rights and the safe guards of self-government to the small question of Lynde or Paine, Paine or Lynde. But since that has been attempted, I do not deem it out of place to take part in this controvercy.
The candidate of the Submission Democracy, nominated on that very issue, is certainly a very respectable gentleman; and I am astonished that his party should have as far forgotten established custom as to nominate a man who has neither received La Crosse bonds (laughter) nor dabbled in the School funds nor was a member of the Barstow Administration. Whether this may be taken as a sign of distress, or whether the Democracy perhaps secretly adhering to their old doctrine of State Rights, have put him forward in order to defeat him, remains a matter of speculation and conjecture. Mr. Lynde is said to be a learned jurist, a good counselor and to have searched more authorities and read more law books than any other man in the State. I will give him the benefit of that rumor. His honesty stands unimpeached and his private character above reproach. This is his reputation, and I have no doubt it does him no more than justice. But at the same time he is just the man to carry out the objects for which he was nominated. His disposition is of the yielding kind, his mind dependent on authority, and not unfrequently following the lead of power. His connection with Judge Miller's Court is proof of this. There he finds his principles and the decrees of the Federal Government are the rule of his action. His character does not bear that stamp which distinguished the man to whose position he aspires; the man who, although nominated by a party Convention, stood firm — like a rock on the solid basis of first principles against his party and unflinchingly bade defiance to the assaults and vituperations and threats which his former partisans hurled against him. Characters of that cast you do not find many, and Mr. Lynde is well-known not to be one of them.
When the federal administration shall again attack the fundamental liberties of our people and the rights of our State, Mr. Lynde will hardly have firmness enough to defend them, but he will have ability enough to form an excuse for deserting them. — When the tide of encroaching usurpation shall again dash against us, he will hardly find in his soul strength enough to resist, but in his store of precedents and authorities, he will find material enough to justify his submission. Such are not the men for times like these. They will do very well in the most intricate questions of civil jurisdiction, but when the soul of man has to face the powers that are, they will falter and be found wanting. These are not the men for great responsibilities.
On the other side there stands Byron Paine. I need not speak about his private character, for it is not only above reproach, but above suspicion; nor about his talents, for nobody denies them; nor about his learning, for even his opponents do not know an occasion when it failed. But they say that he is unfortunately too young, or rather that Mr. Lynde is some ten or fifteen years older than he. — This is indeed a great misfortune, although it might be said in reply that Judge Story, when he ascended the Supreme Bench of the United States, was still younger. — Too young! It is a common thing, sir, that those speak most of age and experience, who with age will never acquire experience. To measure a man's wisdom by the number of his years, would be just as reasonable as to measure the greatness of an orator by the length of his speeches. (Laughter.)
Sir, I know the man and most of you know him, and I will be careful not to color what I say of him with the hue of personal affection, strong as my attachment may be. To that young man I look up with more respect than to any other ten men in this country. To that clear head, to the justness of that lucid mind, to the promptness and accuracy of his judgment, to the calm impartiality of his opinions, undarkened by prejudice, and undisturbed by passion; to the solidity of his learning, to the innate nobility of his feelings, to the placid vigor of his soul, I would confide the highest interest of my life with more implicit reliance, than to that of any other man. In that young man, sir, there is strength founded in conviction, there is calmness springing from peace of mind, there is firmness resting upon principle! That young man was born to stand like a rock, and power will have no awe for him. He is healthy in body and mind, sound, sound to the core! (Applause.) That is the material out of which judges are carved, who will protect in whatever danger there may arise, your rights, your property and your liberties! Citizens of Wisconsin! You have to choose. Our poor State has suffered much; its credit is ruined, its prosperity is blighted, its political honor has been forfeited by wholesale corruption and maladministration. There is almost nothing left to be proud of, but the gallant independence of our Supreme Court; and the spirit of liberty, which caused the people to sustain them. — Will you sacrifice that also? Will you suffer the enemies of your liberties to nestle in your own citadel? Will you see Judge Miller's opinions and pretensions infest the highest court of this State? (Cries of no! never!) Will you see the dirty finger-marks of Buchanan's administration on the Supreme Bench of Wisconsin? If not, place a man there WHO DARES TO BE HIMSELF. Let the friends of liberty and self-government present an unbroken front. — Their banner bears the inscription:
This work published before January 1, 1923 is in the public domain worldwide because the author died at least 100 years ago.