THIRTEENTH DAY. (continued 2)

Mr. SMITH, of New York:—I did not propose to take any part in this debate. The Conference is made up of men, many of whose names are historical, and are intimately connected with the history of the country. I preferred to leave the whole discussion to them.

But as we are all seeking a common end, there are some views which have occurred to me that I thought should be presented, inasmuch as they appear not to have engaged the attention of others. New York, I am aware, has occupied considerable time, and I owe an apology on her part for trespassing farther upon your time.

We are here in a family meeting. On one side Virginia thought the parent was so ill that the family ought to be called together. I thought yesterday that we were undergoing some family discipline—that New York had in some way disgraced herself, and needed correction. I did not know what she had done; but I supposed the reproof was administered to her in a kindly spirit, though it was uncalled for.

The work proposed to us is, to be sure, a work of conciliation. But call it by whatever name you may, nothing less is proposed than an alteration of the Constitution. When we are asked to alter a Constitution that was made by Washington and Madison, under which the country has grown to wealth and happiness, we certainly ought to approach the subject with the utmost deliberation. If we were settling family differences only, we would deliberate. How much more should we do so when we are dealing with the great principles which uphold our Government!

It is by great principles that nations are governed and their destinies are shaped. The world is governed by ideas and not by material interests. These facts must be kept distinctly in view by those who take upon themselves the business of making constitutions.

It is stated that we are called here to settle the terms upon which certain sectional differences are to be arranged. We ought, then, first to ascertain what is the extent—what the limit of these differences.

In the first place, it is agreed that no constitutional rights have yet been invaded. The occasion for fear is not what has been, but what may be done. I suppose we are all alike tenacious of our rights, whether we derive them from the Constitution or from any other source. The rights of the State are just as important to New York as to Virginia. But it is said that appearances exist that indicate an intention on our part to interfere with some of the institutions of the South. We ask for the proof. None is forthcoming—nothing but the most vague and indefinite suspicion.

We propose to give the most satisfactory and absolute guarantees on that subject—the subject of interference with Southern institutions—even to put those guarantees into the Constitution. But that is not satisfactory—we are told that we cannot be trusted. I should hope that no Northern State could ever be truthfully required to admit that it had given cause for such an apprehension. But it is evident that this is not the real occasion of calling us together. What, then, is the occasion?

It is said, that certain sectional rights in the Territories must be secured and guaranteed. In that view I desire to call the attention of the Conference to two or three points in the plan of the proposed security.

As I understand the scheme, it is this: It is proposed to divide our present territory by the line of 36° 30´, with a view to have emigration from the free States go north, and from the slave States go south of that line. This is made in connection with a limitation preventing the acquisition of future territory. Now the first thing that impresses me is the objection to placing any such restraints upon emigration.

Mr. CLAY:—I think the gentleman misunderstands the report. I have seen no proposition that proposes to confine or restrain emigration.

Mr. SMITH:—I concede that there is no express provision restricting emigration, but such I think will be the effect of the amendments.

By the third section, Congress is prohibited, forever, from interfering with the subject of slaves, and the sixth section makes the others, with certain provisions of the Constitution as it now stands, irrepealable and unchangeable. No matter how much the condition of the country may change; no matter if all but the most inconsiderable fraction of the people may desire to change them; these propositions must stand as long as this country stands, a part of its fundamental law.

These are the general provisions which the scheme contains. It is offered as a measure of peace; of conciliation; to calm and quiet the existing excitement.

I think I am right in saying that when you are making a constitution you should consider all the conditions of the people who are to be governed by it; that you should keep in view all sections and opinions. It is my belief that instead of calming the excitement these propositions will aggravate it—will arouse it to a pitch it has never yet attained. I believe this, because the entire proposition goes counter to the fundamental ideas upon which our Government is based.

It proposes to establish slavery South. Is not this the first time in the history of the Constitution that it has ever been proposed, by affixing an article to that instrument, to establish—to plant slavery in territory which was free when it was acquired? The ordinance of 1787 prohibited slavery from going into the territory which was acquired by it.

In similar language the article proposes to abolish slavery in the territory north of the line. It is well to consider what is the legal condition of that territory now. New Mexico and Arizona were free when we first acquired them. Is not this provision wholly unnecessary? Mr. Clay left such language out of the Missouri Compromise, as he avowed, on the ground that slavery could not legally go into territory free when it was acquired, without the aid of affirmative legislation. Previous and up to the year 1850, there was no difference of opinion among lawyers on this question. All agreed with Mr. Clay.

Now, slavery has gone into a portion of this territory; violently too; without such legislation. Limits are prescribed to it, it is true, but it is there, and in this way. That is the status which is to be recognized, constitutionalized by these articles. I am aware that there is a law of the territory that authorizes slavery, but slavery went there without law, in spite of the opinions and opposition of Mr. Clay.

This is shown by the debate of 1850. It is proposed now to convert the territory south of the line of 36° 30´ into slave territory, and to make that conversion irrevocable. Suppose these propositions had been applied at the moment the territory was acquired. Then certainly slavery would have been carried there by force of these articles alone. The principle would have been the same; one case being no stronger than the other.

Mr. President, I shall not enter into any discussion of the merits or demerits of the question in any other than its political aspects. I have nothing to say respecting the morals of slavery. If there is virtue in the institution, you have the credit of it; if there is sin, you must answer for it. And here let me say that you discuss the moral aspect of slavery much more than we do. We hold it to be strictly a State institution. So long as it is kept there, we have nothing to do with it. It is only when it thrusts itself outside of State limits, and seeks to acquire power and strength by spreading itself over new ground, that we insist upon our objections.

Whatever the consequences may be, we should not conceal from each other the true condition of public opinion in our respective sections. A correct knowledge of this is essential and indispensable. It is in view of this opinion that our proposals should be framed, if they are ever to be adopted. The settled convictions of a people formed upon mature examination and experience, cannot be easily changed. This should be understood at the outset.

Now, I respectfully submit that no sentiment, no opinion ever took a firmer hold of the Northern mind—ever struck more deeply into it—ever became more pervading, or was ever adopted after maturer consideration, than this: That it is impolitic and wrong to convert free territory into slave territory. With such convictions the North will never consent to such conversion. Never! never!

This was the view of Mr. Clay. His opinion always had great weight at the North. Mr. Clayton, of Delaware, declared to the same purpose, and avowed that Northern men could not be expected to consent to this. We, at least, know how this opinion is consecrated in the hearts of the people of the North, and how idle it is for statesmen to run counter to it.

We are told by the gentleman from Maryland, that all the South wants is to have the force of the decision of the Supreme Court acknowledged as to that part of the territory south of the line, in consideration of which the South will yield what she gains by that decision in the territory north; and also that we must do this, or the slave States will be driven to join those States that have seceded. Now, it is due to frankness to say, that the North does not acquiesce in that statement; that the point as made by the gentleman from Maryland, has been decided by the Supreme Court. We know that the Chief Justice of that court has expressed his own opinion that way; but we don't know that it has been decided by that court. But if it has been so decided, the very ground of the decision is a misapprehension. If I rightly understand the language of Chief Justice Taney, he insists that the Constitution expressly affirms the right of property in slaves. I think it does not. The North thinks it does not.

Mr. Smith then proceeded to discuss the facts in the Dred Scott case, and the various opinions declared by the judges, showing that the decision did not extend so far as claimed by Mr. Johnson, and that the question of the right to hold slaves in the Territories was not presented by the record in that case.

Mr. WICKLIFFE:—There were two questions involved in the Dred Scott case. One was, the authority of Scott to sue; the other was, upon the constitutionality of the Missouri Compromise. Both these were decided in that case, and both were decided by the Supreme Court years ago.

Mr. SMITH:—I am aware of the views taken by the gentleman from Kentucky. I am stating as a matter of fact how this decision is regarded by a large portion of the people of the North. I am aware that the Southern construction of the decision is different, and some at the North concur in it. I am trying to see how the majority propositions will suit the people who agree with the Northern view.

I understand it is claimed that the court decided that slaves were property, and that the Constitution did not permit any restraint to be laid upon the owners of that property in the Territories. Yes, the court did decide that the owner had the right to take his slaves into the Territory and hold them there; and to that extent they were property. It is a prevalent idea at the North that the Southern construction of this decision is not fair, and that it would be dangerous to adopt it.

We do not subscribe to the doctrine that the Constitution expressly affirms the right of property in slaves. We may be wrong; it may be a mere misapprehension. But with their present opinions, the people of the North will hesitate long before they make this express affirmation a part of the organic law.

Again; if the Constitution affirms this right, and was understood to do so by its framers, what was the need of the rendition clause? The Constitution is the supreme law in the free States as well as in the slave States. Under this construction the rights of the owner could have been enforced like any other right of property in the courts of law, without any provision for the rendition of slaves.

These are some of the opinions that are entertained at the North. They may be right or they may be wrong, but they have been deliberately adopted, and they prevail extensively. They cannot be changed by our action here. In all we do they must be respected. They are constitutionally entertained.

This proposition to carry slavery into the Territories, opens the discussion of the merits of that institution. Gentlemen say they wish to stop the discussion; that there has been too much of it already; that such a discussion would be especially unfortunate now. I do not propose to enter upon it here. But I desire to know in what manner you could more effectually invite discussion than by placing your proposed amendments before the people?

You must not forget that the people of the North believe slavery is both a moral and a political evil. They recognize the right of the States to have it, to regulate it as they please, without interference, direct or indirect; but when it is proposed to extend it into territory where it did not before exist, it becomes a political question, in which they are interested, in which they have a right to interfere, and in which they will interfere. Such an attempt they consider it their duty to resist by all constitutional means.

The establishing of slavery in the Territories is the practical exclusion of free labor in them. True, there is no direct provision for the exclusion of free labor in your propositions, but such will certainly be their effect. I appeal to gentlemen from the South to say from their own experience whether free labor can be employed side by side with slave labor. This presents another consideration. You of the South ask us to guarantee a right which you say is very important and very dear to you. You ask that your children may enter into and possess these new Territories. We know it. But the North asks the same privilege. We want our children to go there, and live on the labor of their own free hands. They are excluded if slavery goes there before us.

Mr. President, the people of the North do understand, that we are in a contest—a great and important contest. Yet it is one that can be carried on without trampling upon each other's rights—without attempting to secure any unfair advantage. That is the way the North proposes to carry on this contest in relation to the extension of slavery. This contest is between the owners of slaves on the one side, and all the free men of this great nation on the other.

There is another fact that should be kept in view. The Territories are the property not of the individual States, but of the General Government. They are held by the Government in trust, I grant. But in trust for whom? For the whole people of the Union; not in trust for thirty-four distinct States. The idea that these Territories are subject to partition—that South Carolina has the right to demand her thirty-fourth part of them in severalty, is one that by the North cannot be entertained. It is this idea which has produced that other more mischievous one—that an equilibrium must be maintained between the free and the slave States; in other words, between freedom and slavery. Where did this idea creep into the Constitution? It never has found, and it never will find, favor with the people of the North.

We may talk around this question—we may discuss its incidents, its history, and its effects, as much and as long as we please. And after all is said—disguise it as we may—it is a contest between the great opposing elements of civilization—whether the country shall be possessed and developed and ruled by the labor of slaves or of freemen.

Leave it where it is, and all is well. We can live in peace while it is a State institution; extend it, and who can answer for the consequences? Leave it where it is! I humbly suggest that in that direction lays the only path of peace. So long as the Territories are common property, so long will the people insist upon protecting their interests in them. In a Government like ours, conflicts will ensue. The Constitution provides the proper and peaceful way of settling them; and it is not by a partition of every subject in which a mutual interest exists.

Mr. SEDDON:—Does the gentleman consider this a nation, or a federal union of States?

Mr. SMITH:—If I did not consider this a nation I should certainly not be here.

Mr. SEDDON:—Is not the whole machinery of the Government federative? Is not its whole action that of a confederation? Is not the recent election of Mr. Lincoln a proof of the fact? He was elected by less than a majority of the people.

Mr. SMITH:—In all the action of the Government with other governments, we are a nation as much as France or England. In every thing pertaining to the acquisition of territory we are a nation. The rights of the States are preserved in the Constitution, I admit, but their power is to be exercised subject to the powers reserved by the Constitution to the General Government. In all that respects these powers the Government is supreme.

I have only sought to state some of the opinions which are conscientiously entertained at the North upon subjects connected with these propositions. They are entertained there, and they must be respected by the Conference.

This doctrine of the preservation of the balance of power is a new doctrine. It was unknown to the framers of our Constitution. In my opinion it is a most mischievous doctrine to the country, and can only produce the most pernicious results. It is closely akin to the doctrine once broached in the Senate of a duality of the Executive, which, extended, would require a President for every sectional interest. Such ideas were never popular at the North. I do not think they would operate very well in practice at the South.

Mr. CLEVELAND:—Will the gentleman give way for a motion to adjourn?

Mr. SMITH:—Certainly.

On motion of Mr. Cleveland the Conference adjourned to ten o'clock to-morrow.