The President’s Pardon Power

The Pardon Power and the Constitution

Article II, Section 2, Clause 1 states –

The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

A reprieve is the commutation or lessening of a sentence that has already been imposed. It does not affect the legal guilt of a person charged with a crime. A pardon, on the other hand, completely wipes out the legal effects of a conviction. A pardon can be issued at the time an offense is committed or even after a full sentence has been served.

In Federalist No. 74, Alexander Hamilton wrote of the President’s Pardon power

He is also to be authorised “to grant reprieves and pardons for offences against the United States except in cases of impeachment.”Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. The reflection, that the fate of a fellow creature depended on his sole fiat, would naturally inspire scrupulousness and caution: The dread of being accused of weakness or connivance would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of the government than a body of men.

The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one or both of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in refering the expediency of an act of mercy towards him to the judgment of the Legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted that a single man of prudence and good sense, is better fitted, in delicate conjunctures, to balance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions, which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit, which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal arguments for reposing the power of pardoning in this case in the Chief Magistrate is this–In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the Legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed that a discretionary power with a view to such contingencies might be occasionally conferred upon the President; it may be answered in the first place, that it is questionable whether, in a limited constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic before-hand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.

Joseph Story in his Commentaries on the Constitution explained the history of the Pardon power and described how it is not incompatible with a republican form of government.

§ 1488. The next power is, “to grant reprieves and pardons.” It has been said by the marquis Beccaria, that the power of pardon does not exist under a perfect administration of the laws; and that the admission of the power is a tacit acknowledgment of the infirmity of the course of justice. But if this be a defect at all, it arises from the infirmity of human nature generally; and in this view, is no more objectionable, than any other power of government; for every such power, in some sort, arises from human infirmity. But if it be meant, that it is an imperfection in human legislation to admit the power of pardon in any case, the proposition may well be denied, and some proof, at least, be required of its sober reality. The common argument is, that where punishments are mild, they ought to be certain; and that the clemency of the chief magistrate is a tacit disapprobation of the laws. But surely no man in his senses will contend, that any system of laws can provide for every possible shade of guilt, a proportionate degree of punishment. The most, that ever has been, and ever can be done, is to provide for the punishment of crimes by some general rules, and within some general limitations. The total exclusion of all power of pardon would necessarily introduce a very dangerous power in judges and juries, of following the spirit, rather than the letter of the laws; or, out of humanity, of suffering real offenders wholly to escape punishment; or else, it must be holden, (what no man will seriously avow,) that the situation and circumstances of the offender, though they alter not the essence of the offence, ought to make no distinction in the punishment. There are not only various gradations of guilt in the commission of the same crime, which are not susceptible of any previous enumeration and definition; but the proofs must, in many cases, be imperfect in their own nature, not only as to the actual commission of the offence, but also, as to the aggravating or mitigating circumstances. In many cases, convictions must be founded upon presumpions and probabilities. Would it not be at once unjust and unreasonable to exclude all means of mitigating punishment, when subsequent inquiries should demonstrate, that the accusation was wholly unfounded, or the crime greatly diminished in point of atrocity and aggravation, from what the evidence at the trial seemed to establish? A power to pardon seems, indeed, indispensable under the most correct administration of the law by human tribunals; since, otherwise, men would sometimes fall a prey to the vindictiveness of accusers, the inaccuracy of testimony, and the fallibility of jurors and courts. Besides; the law may be broken, and yet the offender be placed in such circumstances, that he will stand, in a great measure, and perhaps wholly, excused in moral and general justice, though not in the strictness of the law. What then is to be done? Is he to be acquitted against the law; or convicted, and to suffer punishment infinitely beyond his deserts? If an arbitrary power is to be given to meet such cases, where can it be so properly lodged, as in the executive department?

§ 1489. Mr. Justice Blackstone says, that “in democracies, this power of pardon can never subsist; for, there, nothing higher is acknowledged, than the magistrate, who administers the laws; and it would be impolitic for the power of judging, and of pardoning to center in one and the same person. This (as the president Montesquieu, observes) would oblige him very often to contradict himself, to make and unmake his decisions. It would tend to confound all ideas of right among the mass of the people, as they would find it difficult to tell, whether a prisoner was discharged by his innocence, or obtained a pardon through favour.” And hence, he deduces the superiority of a monarchical government; because in monarchies, the king acts in a superior sphere; and may, therefore, safely be trusted with the power of pardon, and it becomes a source of personal loyalty and affection.

§ 1490. But, surely, this reasoning is extremely forced and artificial. In the first place, there is [no] more difficulty or absurdity in a democracy, than in a monarchy, in such cases, if the power of judging and pardoning be in the same hands; as if the monarch be at once the judge, and the person, who pardons. And Montesquieu’s reasoning is in fact addressed to this very case of a monarch, who is at once the judge, and dispenser of pardons. In the next place, there is no inconsistency in a democracy any more, than in a monarchy, in entrusting one magistrate with a power to try the cause, and another with a power to pardon. The one power is not incidental to, but in contrast with the other. Nor, if both powers were lodged in the same magistrate, would there be any danger of their being necessarily confounded; for they may be required to be acted upon separately, and at different times, so as to be known as distinct prerogatives. But, in point of fact, no such reasoning has the slightest application to the American governments, or, indeed, to any others, where there is a separation of the general departments of government, legislative, judicial, and executive, and the powers of each are administered by distinct persons. What difficulty is there in the people delegating the judicial power to one body of magistrates, and the power of pardon to another, in a republic any more, than there is in the king’s delegating the judicial power to magistrates, and reserving the pardoning power to himself, in a monarchy? In truth, the learned author, in his extreme desire to recommend a kingly form of government, seems on this, as on many other occasions, to have been misled into the most loose and inconclusive statements. There is not a single state in the Union, in which there is not by its constitution a power of pardon lodged in some one department of government, distinct from the judicial. And the power of remitting penalties is in some cases, even in England, entrusted to judicial officers.

§ 1491. So far from the power of pardon being incompatible with the fundamental principles of a republic, it may be boldly asserted to be peculiarly appropriate, and safe in all free states; because the power can there be guarded by a just responsibility for its exercise. Little room will be left for favouritism, personal caprice, or personal resentment. If the power should ever be abused, it would be far less likely to occur in opposition, than in obedience to the will of the people. The danger is not, that in republics the victims of the law will too often escape punishment by a pardon; but that the power will not be sufficiently exerted in cases, where public feeling accompanies the prosecution, and assigns the ultimate doom to persons, who have been convicted upon slender testimony, or popular suspicions.

§ 1492. The power to pardon, then, being a fit one to be entrusted to all governments, humanity and sound policy dictate, that this benign prerogative should be, as little as possible, fettered, or embarrassed. The criminal code of every country partakes so much of necessary severity, that, without an easy access to exceptions in favour of unfortunate guilt, justice would assume an aspect too sanguinary and cruel. The only question is, in what department of the government it can be most safely lodged; and that must principally refer to the executive, or legislative department. The reasoning in favour of vesting it in the executive department may be thus stated. A sense of responsibility is always strongest in proportion, as it is undivided. A single person would, therefore, be most ready to attend to the force of those motives, which might plead for a mitigation of the rigour of the law; and the least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. The consciousness, that the life, or happiness of an offender was exclusively within his discretion, would inspire scrupulousness and caution; and the dread of being accused of weakness, or connivance, would beget circumspection of a different sort. On the other hand, as men generally derive confidence from numbers, a large assembly might naturally encourage each other in acts of obduracy, as no one would feel much apprehension of public censure. A public body, too, ordinarily engaged in other duties, would be little apt to sift cases of this sort thoroughly to the bottom, and would be disposed to yield to the solicitations, or be guided by the prejudices of a few; and thus shelter their own acts of yielding too much, or too little, under the common apology of ignorance, or confidence. A single magistrate would be compelled to search, and act upon his own responsibility; and therefore would be at once a more enlightened dispenser of mercy, and a more firm administrator of public justice.

§ 1493. There are probably few persons now, who would not consider the power of pardon in ordinary cases, as best deposited with the president. But the expediency of vesting it in him in any cases, and especially in cases of treason, was doubted at the time of adopting the constitution; and it was then urged, that it ought at least in cases of treason to be vested in one, or both branches of the legislature. That there are strong reasons, which may be assigned in favour of vesting the power in congress in cases of treason, need not be denied. As treason is a crime levelled at the immediate existence of society, when the laws have once ascertained the guilt of the offender, there would seem to be a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. But there are strong reasons also against it. Even in such cases a single magistrate, of prudence and sound sense, would be better fitted, than a numerous assembly, in such delicate conjunctures, to weigh the motives for and against the remission of the punishment, and to ascertain all the facts without undue influence. The responsibility would be more felt, and more direct. Treason, too, is a crime, that will often be connected with seditions, embracing a large portion of a particular community; and might under such circumstances, and especially where parties were nearly poised, find friends and favourites, as well as enemies and opponents, in the councils of the nation. So, that the chance of an impartial judgment might be less probable in such bodies, than in a single person at the head of the nation.

§ 1494. A still more satisfactory reason is, that the legislature is not always in session; and that their proceedings must be necessarily slow, and are generally not completed, until after long delays. The inexpediency of deferring the execution of any criminal sentence, until a long and indefinite time after a conviction, is felt in all communities. It destroys one of the best effects of punishment, that, which arises from a prompt and certain administration of justice following close upon the offence. If the legislature is invested with the authority to pardon, it is obviously indispensable, that no sentence can be properly executed, at least in capital cases, until they have had time to act. And a mere postponement of the subject from session to session would be naturally sought by all those, who favoured the convict, and yet doubted the success of his application. In many cases delay would be equivalent to a pardon, as to its influence upon public opinion, either in weakening the detestation of the crime, or encouraging the commission of it. But the principal argument for reposing the power of pardon in the executive magistrate in cases of treason is, that in seasons of insurrection, or rebellion, there are critical moments, when a well-timed offer of pardon to the insurgents, or rebels, may restore the tranquillity of the Commonwealth; and if these are suffered to pass unimproved, it may be impossible afterwards to interpose with the same success. The dilatory process of convening the legislature, or one of the branches, for the purpose of sanctioning such a measure, would frequently be the loss of the golden opportunity. The loss of a week, of a day, or even of an hour may sometimes prove fatal. If a discretionary power were confided to the president to act in such emergencies, it would greatly diminish the importance of the restriction. And it would generally be impolitic to hold out, either by the constitution or by law, a prospect of impunity by confiding the exercise of the power to the executive in special cases; since it might be construed into an argument of timidity or weakness, and thus have a tendency to embolden guilt. In point of fact, the power has always been found safe in the hands of the state executives in treason, as well as in other cases; and there can be no practical reason, why it should not be equally safe with the executive of the Union.

§ 1495. There is an exception to the power of pardon, that it shall not extend to cases of impeachment, which takes from the president every temptation to abuse it in cases of political and official offences by persons in the public service. The power of impeachment will generally be applied to persons holding high offices under the government; and it is of great consequence, that the president should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment, if they should deserve it. The constitution has, therefore, wisely interposed this check upon his power, so that he cannot, by any corrupt coalition with favourites, or dependents in high offices, screen them from punishment.

§ 1496. In England (from which this exception was probably borrowed) no pardon can be pleaded in bar of an impeachment. But the king may, after conviction upon an impeachment pardon the offender. His prerogative, therefore, cannot prevent the disgrace of a conviction; but it may avert its effects, and restore the offender to his credit. The president possesses no such power in any case of impeachment; and, as the judgment upon a conviction extends no farther, than to a removal from office, and disqualification to hold office, there is not the same reason for its exercise after conviction, as there is in England; since (as we have seen) the judgment there, so that it does not exceed what is allowed by law, lies wholly in the breast of the house of lords, as to its nature and extent, and may, in many cases, not only reach the life, but the whole fortune of the offender.

§ 1497. It would seem to result from the principle, on which the power of each branch of the legislature to punish for contempts is founded, that the executive authority cannot interpose between them and the offender. The main object is to secure a purity, independence, and ability of the legislature adequate to the discharge of all their duties. If they can be overawed by force, or corrupted by largesses, or interrupted in their proceedings by violence, without the means of self-protection, it is obvious, that they will soon be found incapable of legislating with wisdom or independence. If the executive should possess the power of pardoning any such offender, they would be wholly dependent upon his good will and pleasure for the exercise of their own powers. Thus, in effect, the rights of the people entrusted to them would be placed in perpetual jeopardy. The constitution is silent in respect to the right of granting pardons in such cases, as it is in respect to the jurisdiction to punish for contempts. The latter arises by implication; and to make it effectual the former is excluded by implication.

§ 1498. Subject to these exceptions, (and perhaps there may be others of a like nature standing on special grounds,) the power of pardon is general and unqualified, reaching from the highest to the lowest offences. The power of remission of fines, penalties, and forfeitures is also included in it; and may in the last resort be exercised by the executive, although it is in many cases by our laws confided to the treasury department. No law can abridge the constitutional powers of the executive department, or interrupt its right to interpose by pardon in such cases.

Some Famous Presidential Pardons

(1) The Whiskey Rebels (1795) – a group of whiskey-producing Pennsylvania farmers took to the streets and burned the home of a local tax inspector. 20 or so members of the mob were arrested, and 2 were convicted of treason and sentenced to death by hanging. Washington chose to pardon both men in July 1795 in an effort to avoid further discontent in the new nation.

(2) Brigham Young (1858) -In what became known as the Utah War, Young’s followers participated in a year-long standoff with the U.S. Army. The affair was largely bloodless, but in September 1857,  a group of Mormons killed over 100 civilian members of a California-bound wagon train. Despite this massacre—which some claimed came on Young’s orders—Young and his followers later received a full pardon from President James Buchanan as part of a peace compromise with the federal government.

(3) Richard Nixon (1974) – Richard Nixon famously resigned from office in August 1974 amid accusations of malfeasance related to the Watergate scandal. But while there was a possibility that Nixon could have been prosecuted and even jailed, he was granted a full pardon by new President Gerald Ford only weeks after stepping down. Ford’s offer of clemency came before Nixon had officially been charged with any misdeeds, and covered all federal crimes the former president had “committed or may have committed or taken part in” during his terms in office.

*Source: http://www.history.com/news/history-lists/7-famous-presidential-pardons

To view more information about the number of presidential pardons and commutations per presidential administration, visit this Justice Department page. It has data from the McKinley administration through the Obama administration.

October 16, 1854: Abraham Lincoln Speaks out Against Slavery in His Peoria Speech

On October 16, 1854, Abraham Lincoln, then a Congressional hopeful from Illinois, delivered a speech detailing his objections to the Kansas-Nebraska Act. During his speech, the future president attacked the morality of slavery. This speech is viewed to have resurrected Lincoln’s political career. Check out the full text of his speech here:

Peoria, Illinois: October 16, 1854

The repeal of the Missouri Compromise, and the propriety of its restoration, constitute the subject of what I am about to say.

As I desire to present my own connected view of this subject, my remarks will not be, specifically, an answer to Judge Douglas; yet, as I proceed, the main points he has presented will arise, and will receive such respectful attention as I may be able to give them.

I wish further to say, that I do not propose to question the patriotism, or to assail the motives of any man, or class of men; but rather to strictly confine myself to the naked merits of the question.

I also wish to be no less than National in all the positions I may take; and whenever I take ground which others have thought, or may think, narrow, sectional and dangerous to the Union, I hope to give a reason, which will appear sufficient, at least to some, why I think differently.

And, as this subject is no other, than part and parcel of the larger general question of domestic-slavery, I wish to MAKE and to KEEP the distinction between the EXISTING institution, and the EXTENSION of it, so broad, and so clear, that no honest man can misunderstand me, and no dishonest one, successfully misrepresent me.

In order to [get?] a clear understanding of what the Missouri Compromise is, a short history of the preceding kindred subjects will perhaps be proper. When we established our independence, we did not own, or claim, the country to which this compromise applies. Indeed, strictly speaking, the confederacy then owned no country at all; the States respectively owned the country within their limits; and some of them owned territory beyond their strict State limits. Virginia thus owned the North-Western territory—the country out of which the principal part of Ohio, all Indiana, all Illinois, all Michigan and all Wisconsin, have since been formed. She also owned (perhaps within her then limits) what has since been formed into the State of Kentucky. North Carolina thus owned what is now the State of Tennessee; and South Carolina and Georgia, in separate parts, owned what are now Mississippi and Alabama. Connecticut, I think, owned the little remaining part of Ohio—being the same where they now send Giddings to Congress, and beat all creation at making cheese. These territories, together with the States themselves, constituted all the country over which the confederacy then claimed any sort of jurisdiction. We were then living under the Articles of Confederation, which were superceded by the Constitution several years afterwards. The question of ceding these territories to the general government was set on foot. Mr. Jefferson, the author of the Declaration of Independence, and otherwise a chief actor in the revolution; then a delegate in Congress; afterwards twice President; who was, is, and perhaps will continue to be, the most distinguished politician of our history; a Virginian by birth and continued residence, and withal, a slave-holder; conceived the idea of taking that occasion, to prevent slavery ever going into the north-western territory. He prevailed on the Virginia Legislature to adopt his views, and to cede the territory, making the prohibition of slavery therein, a condition of the deed. Congress accepted the cession, with the condition; and in the first Ordinance (which the acts of Congress were then called) for the government of the territory, provided that slavery should never be permitted therein. This is the famed ordinance of ’87 so often spoken of. Thenceforward, for sixty-one years, and until in 1848, the last scrap of this territory came into the Union as the State of Wisconsin, all parties acted in quiet obedience to this ordinance. It is now what Jefferson foresaw and intended—the happy home of teeming millions of free, white, prosperous people, and no slave amongst them.

Thus, with the author of the Declaration of Independence, the policy of prohibiting slavery in new territory originated. Thus, away back of the constitution, in the pure fresh, free breath of the revolution, the State of Virginia, and the National congress put that policy in practice. Thus through sixty odd of the best years of the republic did that policy steadily work to its great and beneficent end. And thus, in those five states, and five millions of free, enterprising people, we have before us the rich fruits of this policy.

But now new light breaks upon us. Now congress declares this ought never to have been; and the like of it, must never be again. The sacred right of self government is grossly violated by it! We even find some men, who drew their first breath, and every other breath of their lives, under this very restriction, now live in dread of absolute suffocation, if they should be restricted in the “sacred right” of taking slaves to Nebraska. That perfect liberty they sigh for—the liberty of making slaves of other people—Jefferson never thought of; their own father never thought of; they never thought of themselves, a year ago. How fortunate for them, they did not sooner become sensible of their great misery! Oh, how difficult it is to treat with respect, such assaults upon all we have ever really held sacred.

But to return to history. In 1803 we purchased what was then called Louisiana, of France. It included the now states of Louisiana, Arkansas, Missouri, and Iowa; also the territory of Minnesota, and the present bone of contention, Kansas and Nebraska. Slavery already existed among the French at New Orleans; and, to some extent, at St. Louis. In 1812 Louisiana came into the Union as a slave state, without controversy. In 1818 or ’19, Missouri showed signs of a wish to come in with slavery. This was resisted by northern members of Congress; and thus began the first great slavery agitation in the nation. This controversy lasted several months, and became very angry and exciting; the House of Representatives voting steadily for the prohibition of slavery in Missouri, and the Senate voting as steadily against it. Threats of breaking up the Union were freely made; and the ablest public men of the day became seriously alarmed. At length a compromise was made, in which, like all compromises, both sides yielded something. It was a law passed on the 6th day of March, 1820, providing that Missouri might come into the Union with slavery, but that in all the remaining part of the territory purchased of France, which lies north of 36 degrees and 30 minutes north latitude, slavery should never be permitted. This provision of law, is the Missouri Compromise. In excluding slavery North of the line, the same language is employed as in the Ordinance of ’87. It directly applied to Iowa, Minnesota, and to the present bone of contention, Kansas and Nebraska. Whether there should or should not, be slavery south of that line, nothing was said in the law; but Arkansas constituted the principal remaining part, south of the line; and it has since been admitted as a slave state without serious controversy. More recently, Iowa, north of the line, came in as a free state without controversy. Still later, Minnesota, north of the line, had a territorial organization without controversy. Texas principally south of the line, and West of Arkansas; though originally within the purchase from France, had, in 1819, been traded off to Spain, in our treaty for the acquisition of Florida. It had thus become a part of Mexico. Mexico revolutionized and became independent of Spain. American citizens began settling rapidly, with their slaves in the southern part of Texas. Soon they revolutionized against Mexico, and established an independent government of their own, adopting a constitution, with slavery, strongly resembling the constitutions of our slave states. By still another rapid move, Texas, claiming a boundary much further West, than when we parted with her in 1819, was brought back to the United States, and admitted into the Union as a slave state. There then was little or no settlement in the northern part of Texas, a considerable portion of which lay north of the Missouri line; and in the resolutions admitting her into the Union, the Missouri restriction was expressly extended westward across her territory. This was in 1845, only nine years ago.

Thus originated the Missouri Compromise; and thus has it been respected down to 1845. And even four years later, in 1849, our distinguished Senator, in a public address, held the following language in relation to it:

“The Missouri Compromise had been in practical operation for about a quarter of a century, and had received the sanction and approbation of men of all parties in every section of the Union. It had allayed all sectional jealousies and irritations growing out of this vexed question, and harmonized and tranquilized the whole country. It had given to Henry Clay, as its prominent champion, the proud sobriquet of the ‘Great Pacificator’ and by that title and for that service, his political friends had repeatedly appealed to the people to rally under his standard, as a presidential candidate, as the man who had exhibited the patriotism and the power to suppress, an unholy and treasonable agitation, and preserve the Union. He was not aware that any man or any party from any section of the Union, had ever urged as an objection to Mr. Clay, that he was the great champion of the Missouri Compromise. On the contrary, the effort was made by the opponents of Mr. Clay, to prove that he was not entitled to the exclusive merit of that great patriotic measure, and that the honor was equally due to others as well as to him, for securing its adoption—that it had its origin in the hearts of all patriotic men, who desired to preserve and perpetuate the blessings of our glorious Union—an origin akin that of the constitution of the United States, conceived in the same spirit of fraternal affection, and calculated to remove forever, the only danger, which seemed to threaten, at some distant day, to sever the social bond of union. All the evidences of public opinion at that day, seemed to indicate that this Compromise had been canonized in the hearts of the American people, as a sacred thing which no ruthless hand would ever be reckless enough to disturb.”

I do not read this extract to involve Judge Douglas in an inconsistency. If he afterwards thought he had been wrong, it was right for him to change. I bring this forward merely to show the high estimate placed on the Missouri Compromise by all parties up to so late as the year 1849.

But, going back a little, in point of time, our war with Mexico broke out in 1846. When Congress was about adjourning that session, President Polk asked them to place two millions of dollars under his control, to be used by him in the recess, if found practicable and expedient, in negociating a treaty of peace with Mexico, and acquiring some part of her territory. A bill was duly got up, for the purpose, and was progressing swimmingly, in the House of Representatives, when a member by the name of David Wilmot, a democrat from Pennsylvania, moved as an amendment “Provided that in any territory thus acquired, there shall never be slavery.”

This is the origin of the far-famed ‘Wilmot Proviso.’ It created a great flutter; but it stuck like wax, was voted into the bill, and the bill passed with it through the House. The Senate, however, adjourned without final action on it and so both appropriation and proviso were lost, for the time. The war continued, and at the next session, the president renewed his request for the appropriation, enlarging the amount, I think, to three million. Again came the proviso; and defeated the measure. Congress adjourned again, and the war went on. In Dec., 1847, the new congress assembled. I was in the lower House that term. The “Wilmot Proviso” or the principle of it, was constantly coming up in some shape or other, and I think I may venture to say I voted for it at least forty times; during the short term I was there. The Senate, however, held it in check, and it never became law. In the spring of 1848 a treaty of peace was made with Mexico; by which we obtained that portion of her country which now constitutes the territories of New Mexico and Utah, and the now state of California. By this treaty the Wilmot Proviso was defeated, as so far as it was intended to be, a condition of the acquisition of territory. Its friends however, were still determined to find some way to restrain slavery from getting into the new country. This new acquisition lay directly West of our old purchase from France, and extended west to the Pacific ocean—and was so situated that if the Missouri line should be extended straight West, the new country would be divided by such extended line, leaving some North and some South of it. On Judge Douglas’ motion a bill, or provision of a bill, passed the Senate to so extend the Missouri line. The Proviso men in the House, including myself, voted it down, because by implication, it gave up the Southern part to slavery, while we were bent on having it all free.

In the fall of 1848 the gold mines were discovered in California. This attracted people to it with unprecedented rapidity, so that on, or soon after, the meeting of the new congress in Dec., 1849, she already had a population of nearly a hundred thousand, had called a convention, formed a state constitution, excluding slavery, and was knocking for admission into the Union. The Proviso men, of course were for letting her in, but the Senate, always true to the other side would not consent to her admission. And there California stood, kept out of the Union, because she would not let slavery into her borders. Under all the circumstances perhaps this was not wrong. There were other points of dispute, connected with the general question of slavery, which equally needed adjustment. The South clamored for a more efficient fugitive slave law. The North clamored for the abolition of a peculiar species of slave trade in the District of Columbia, in connection with which, in view from the windows of the capitol, a sort of negro-livery stable, where droves of negroes were collected, temporarily kept, and finally taken to Southern markets, precisely like droves of horses, had been openly maintained for fifty years. Utah and New Mexico needed territorial governments; and whether slavery should or should not be prohibited within them, was another question. The indefinite Western boundary of Texas was to be settled. She was received a slave state; and consequently the farther West the slavery men could push her boundary, the more slave country they secured. And the farther East the slavery opponents could thrust the boundary back, the less slave ground was secured. Thus this was just as clearly a slavery question as any of the others.

These points all needed adjustment; and they were all held up, perhaps wisely to make them help to adjust one another. The Union, now, as in 1820, was thought to be in danger; and devotion to the Union rightfully inclined men to yield somewhat, in points where nothing else could have so inclined them. A compromise was finally effected. The south got their new fugitive-slave law; and the North got California, (the far best part of our acquisition from Mexico,) as a free State. The south got a provision that New Mexico and Utah, when admitted as States, may come in with or without slavery as they may then choose; and the north got the slave-trade abolished in the District of Columbia. The north got the western boundary of Texas, thence further back eastward than the south desired; but, in turn, they gave Texas ten millions of dollars, with which to pay her old debts. This is the Compromise of 1850.

Preceding the Presidential election of 1852, each of the great political parties, democrats and whigs, met in convention, and adopted resolutions endorsing the compromise of ’50; as a “finality,” a final settlement, so far as these parties could make it so, of all slavery agitation. Previous to this, in 1851, the Illinois Legislature had indorsed it.

During this long period of time Nebraska had remained, substantially an uninhabited country, but now emigration to, and settlement within it began to take place. It is about one third as large as the present United States, and its importance so long overlooked, begins to come into view. The restriction of slavery by the Missouri Compromise directly applies to it; in fact, was first made, and has since been maintained, expressly for it. In 1853, a bill to give it a territorial government passed the House of Representatives, and, in the hands of Judge Douglas, failed of passing the Senate only for want of time. This bill contained no repeal of the Missouri Compromise. Indeed, when it was assailed because it did not contain such repeal, Judge Douglas defended it in its existing form. On January 4th, 1854, Judge Douglas introduces a new bill to give Nebraska territorial government. He accompanies this bill with a report, in which last, he expressly recommends that the Missouri Compromise shall neither be affirmed nor repealed.

Before long the bill is so modified as to make two territories instead of one; calling the Southern one Kansas.

Also, about a month after the introduction of the bill, on the judge’s own motion, it is so amended as to declare the Missouri Compromise inoperative and void; and, substantially, that the People who go and settle there may establish slavery, or exclude it, as they may see fit. In this shape the bill passed both branches of congress, and became a law.

This is the repeal of the Missouri Compromise. The foregoing history may not be precisely accurate in every particular; but I am sure it is sufficiently so, for all the uses I shall attempt to make of it, and in it, we have before us, the chief material enabling us to correctly judge whether the repeal of the Missouri Compromise is right or wrong.

I think, and shall try to show, that it is wrong; wrong in its direct effect, letting slavery into Kansas and Nebraska—and wrong in its prospective principle, allowing it to spread to every other part of the wide world, where men can be found inclined to take it.

This declared indifference, but as I must think, covert real zeal for the spread of slavery, I can not but hate. I hate it because of the monstrous injustice of slavery itself. I hate it because it deprives our republican example of its just influence in the world—enables the enemies of free institutions, with plausibility, to taunt us as hypocrites—causes the real friends of freedom to doubt our sincerity, and especially because it forces so many really good men amongst ourselves into an open war with the very fundamental principles of civil liberty—criticising the Declaration of Independence, and insisting that there is no right principle of action butself-interest.

Before proceeding, let me say I think I have no prejudice against the Southern people. They are just what we would be in their situation. If slavery did not now exist amongst them, they would not introduce it. If it did now exist amongst us, we should not instantly give it up. This I believe of the masses north and south. Doubtless there are individuals, on both sides, who would not hold slaves under any circumstances; and others who would gladly introduce slavery anew, if it were out of existence. We know that some southern men do free their slaves, go north, and become tip-top abolitionists; while some northern ones go south, and become most cruel slave-masters.

When southern people tell us they are no more responsible for the origin of slavery, than we; I acknowledge the fact. When it is said that the institution exists; and that it is very difficult to get rid of it, in any satisfactory way, I can understand and appreciate the saying. I surely will not blame them for not doing what I should not know how to do myself. If all earthly power were given me, I should not know what to do, as to the existing institution. My first impulse would be to free all the slaves, and send them to Liberia,—to their own native land. But a moment’s reflection would convince me, that whatever of high hope, (as I think there is) there may be in this, in the long run, its sudden execution is impossible. If they were all landed there in a day, they would all perish in the next ten days; and there are not surplus shipping and surplus money enough in the world to carry them there in many times ten days. What then? Free them all, and keep them among us as underlings? Is it quite certain that this betters their condition? I think I would not hold one in slavery, at any rate; yet the point is not clear enough for me to denounce people upon. What next? Free them, and make them politically and socially, our equals? My own feelings will not admit of this; and if mine would, we well know that those of the great mass of white people will not. Whether this feeling accords with justice and sound judgment, is not the sole question, if indeed, it is any part of it. A universal feeling, whether well or ill-founded, can not be safely disregarded. We can not, then, make them equals. It does seem to me that systems of gradual emancipation might be adopted; but for their tardiness in this, I will not undertake to judge our brethren of the south.

When they remind us of their constitutional rights, I acknowledge them, not grudgingly, but fully, and fairly; and I would give them any legislation for the reclaiming of their fugitives, which should not, in its stringency, be more likely to carry a free man into slavery, than our ordinary criminal laws are to hang an innocent one.

But all this; to my judgment, furnishes no more excuse for permitting slavery to go into our own free territory, than it would for reviving the African slave trade by law. The law which forbids the bringing of slaves from Africa; and that which has so long forbid the taking them to Nebraska, can hardly be distinguished on any moral principle; and the repeal of the former could find quite as plausible excuses as that of the latter.

The arguments by which the repeal of the Missouri Compromise is sought to be justified, are these:

First, that the Nebraska country needed a territorial government.

Second, that in various ways, the public had repudiated it, and demanded the repeal; and therefore should not now complain of it.

And lastly, that the repeal establishes a principle, which is intrinsically right.

I will attempt an answer to each of them in its turn. First, then, if that country was in need of a territorial organization, could it not have had it as well without as with the repeal? Iowa and Minnesota, to both of which the Missouri restriction applied, had, without its repeal, each in succession, territorial organizations. And even, the year before, a bill for Nebraska itself, was within an ace of passing, without the repealing clause; and this in the hands of the same men who are now the champions of repeal. Why no necessity then for the repeal? But still later, when this very bill was first brought in, it contained no repeal. But, say they, because the public had demanded, or rather commanded the repeal, the repeal was to accompany the organization, whenever that should occur.

Now I deny that the public ever demanded any such thing—ever repudiated the Missouri Compromise—ever commanded its repeal. I deny it, and call for the proof. It is not contended, I believe, that any such command has ever been given in express terms. It is only said that it was done in principle. The support of the Wilmot Proviso, is the first fact mentioned, to prove that the Missouri restriction was repudiated in principle, and the second is, the refusal to extend the Missouri line over the country acquired from Mexico. These are near enough alike to be treated together. The one was to exclude the chances of slavery from the wholenew acquisition by the lump; and the other was to reject a division of it, by which one half was to be given up to those chances. Now whether this was a repudiation of the Missouri line, in principle, depends upon whether the Missouri law contained any principle requiring the line to be extended over the country acquired from Mexico. I contend it did not. I insist that it contained no general principle, but that it was, in every sense, specific. That its terms limit it to the country purchased from France, is undenied and undeniable. It could have no principle beyond the intention of those who made it. They did not intend to extend the line to country which they did not own. If they intended to extend it, in the event of acquiring additional territory, why did they not say so? It was just as easy to say, that “in all the country west of the Mississippi, which we now own, or may hereafter acquire there shall never be slavery,” as to say, what they did say; and they would have said it if they had meant it. An intention to extend the law is not only not mentioned in the law, but is not mentioned in any contemporaneous history. Both the law itself, and the history of the times are a blank as to any principle of extension; and by neither the known rules for construing statutes and contracts, nor by common sense, can any such principle be inferred.

Another fact showing the specific character of the Missouri law—showing that it intended no more than it expressed—showing that the line was not intended as a universal dividing line between free and slave territory, present and prospective—north of which slavery could never go—is the fact that by that very law, Missouri came in as a slave state, north of the line. If that law contained any prospective principle, the whole law must be looked to in order to ascertain what the principlewas. And by this rule, the south could fairly contend that inasmuch as they got one slave state north of the line at the inception of the law, they have the right to have another given them north of it occasionally—now and then in the indefinite westward extension of the line. This demonstrates the absurdity of attempting to deduce a prospective principle from the Missouri Compromise line.

When we voted for the Wilmot Proviso, we were voting to keep slavery out of the whole Missouri [Mexican?] acquisition; and little did we think we were thereby voting, to let it into Nebraska, laying several hundred miles distant. When we voted against extending the Missouri line, little did we think we were voting to destroy the old line, then of near thirty years standing. To argue that we thus repudiated the Missouri Compromise is no less absurd than it would be to argue that because we have, so far, forborne to acquire Cuba, we have thereby, in principle, repudiated our former acquisitions, and determined to throw them out of the Union! No less absurd than it would be to say that because I may have refused to build an addition to my house, I thereby have decided to destroy the existing house! And if I catch you setting fire to my house, you will turn upon me and say I INSTRUCTED you to do it! The most conclusive argument, however, that, while voting for the Wilmot Proviso, and while voting against the EXTENSION of the Missouri line, we never thought of disturbing the original Missouri Compromise, is found in the facts, that there was then, and still is, an unorganized tract of fine country, nearly as large as the state of Missouri, lying immediately west of Arkansas, and south of the Missouri Compromise line; and that we never attempted to prohibit slavery as to it. I wish particular attention to this. It adjoins the original Missouri Compromise line, by its northern boundary; and consequently is part of the country, into which, by implication, slavery was permitted to go, by that compromise. There it has lain open ever since, and there it still lies. And yet no effort has been made at any time to wrest it from the south. In all our struggles to prohibit slavery within our Mexican acquisitions, we never so much as lifted a finger to prohibit it, as to this tract. Is not this entirely conclusive that at all times, we have held the Missouri Compromise as a sacred thing; even when against ourselves, as well as when for us?

Senator Douglas sometimes says the Missouri line itself was, in principle, only an extension of the line of the ordinance of ’87—that is to say, an extension of the Ohio river. I think this is weak enough on its face. I will remark, however that, as a glance at the map will show, the Missouri line is a long way farther South than Page the Ohio; and that if our Senator, in proposing his extension, had stuck to the principle of jogging southward, perhaps it might not have been voted down so readily.

But next it is said that the compromises of ’50 and the ratification of them by both political parties, in ’52, established a new principle, which required the repeal of the Missouri Compromise. This again I deny. I deny it, and demand the proof. I have already stated fully what the compromises of ’50 are. The particular part of those measures, for which the virtual repeal of the Missouri compromise is sought to be inferred (for it is admitted they contain nothing about it, in express terms) is the provision in the Utah and New Mexico laws, which permits them when they seek admission into the Union as States, to come in with or without slavery as they shall then see fit. Now I insist this provision was made for Utah and New Mexico, and for no other place whatever. It had no more direct reference to Nebraska than it had to the territories of the moon. But, say they, it had reference to Nebraska, in principle. Let us see. The North consented to this provision, not because they considered it right in itself; but because they were compensated—paid for it. They, at the same time, got California into the Union as a free State. This was far the best part of all they had struggled for by the Wilmot Proviso. They also got the area of slavery somewhat narrowed in the settlement of the boundary of Texas. Also, they got the slave trade abolished in the District of Columbia. For all these desirable objects the North could afford to yield something; and they did yield to the South the Utah and New Mexico provision. I do not mean that the whole North, or even a majority, yielded, when the law passed; but enough yielded, when added to the vote of the South, to carry the measure. Now can it be pretended that the principle of this arrangement requires us to permit the same provision to be applied to Nebraska, without any equivalent at all? Give us another free State; press the boundary of Texas still further back, give us another step toward the destruction of slavery in the District, and you present us a similar case. But ask us not to repeat, for nothing, what you paid for in the first instance. If you wish the thing again, pay again. That is the principle of the compromises of ’50, if indeed they had any principles beyond their specific terms—it was the system of equivalents.

Again, if Congress, at that time, intended that all future territories should, when admitted as States, come in with or without slavery, at their own option, why did it not say so? With such an universal provision, all know the bills could not have passed. Did they, then—could they—establish a principle contrary to their own intention? Still further, if they intended to establish the principle that wherever Congress had control, it should be left to the people to do as they thought fit with slavery why did they not authorize the people of the District of Columbia at their adoption to abolish slavery within these limits? I personally know that this has not been left undone, because it was unthought of. It was frequently spoken of by members of Congress and by citizens of Washington six years ago; and I heard no one express a doubt that a system of gradual emancipation, with compensation to owners, would meet the approbation of a large majority of the white people of the District. But without the action of Congress they could say nothing; and Congress said “no.” In the measures of 1850 Congress had the subject of slavery in the District expressly in hand. If they were then establishing the principle of allowing the people to do as they please with slavery, why did they not apply the principle to that people?

Again, it is claimed that by the Resolutions of the Illinois Legislature, passed in 1851, the repeal of the Missouri compromise was demanded. This I deny also. Whatever may be worked out by a criticism of the language of those resolutions, the people have never understood them as being any more than an endorsement of the compromises of 1850; and a release of our Senators from voting for the Wilmot Proviso. The whole people are living witnesses, that this only, was their view. Finally, it is asked “If we did not mean to apply the Utah and New Mexico provision, to all future territories, what did we mean, when we, in 1852, endorsed the compromises of ’50?”

For myself, I can answer this question most easily. I meant not to ask a repeal, or modification of the fugitive slave law. I meant not to ask for the abolition of slavery in the District of Columbia. I meant not to resist the admission of Utah and New Mexico, even should they ask to come in as slave States. I meant nothing about additional territories, because, as I understood, we then had no territory whose character as to slavery was not already settled. As to Nebraska, I regarded its character as being fixed, by the Missouri compromise, for thirty years—as unalterably fixed as that of my own home in Illinois. As to new acquisitions I said “sufficient unto the day is the evil thereof.” When we make new acquaintances, [acquisitions?] we will, as heretofore, try to manage them some how. That is my answer. That is what I meant and said; and I appeal to the people to say, each for himself, whether that was not also the universal meaning of the free States.

And now, in turn, let me ask a few questions. If by any, or all these matters, the repeal of the Missouri Compromise was commanded, why was not the command sooner obeyed? Why was the repeal omitted in the Nebraska bill of 1853? Why was it omitted in the original bill of 1854? Why, in the accompanying report, was such a repeal characterized as a departure from the course pursued in 1850? and its continued omission recommended?

I am aware Judge Douglas now argues that the subsequent express repeal is no substantial alteration of the bill. This argument seems wonderful to me. It is as if one should argue that white and black are not different. He admits, however, that there is a literal change in the bill; and that he made the change in deference to other Senators, who would not support the bill without. This proves that those other Senators thought the change a substantial one; and that the Judge thought their opinions worth deferring to. His own opinions, therefore, seem not to rest on a very firm basis even in his own mind—and I suppose the world believes, and will continue to believe, that precisely on the substance of that change this whole agitation has arisen.

I conclude then, that the public never demanded the repeal of the Missouri compromise.

I now come to consider whether the repeal, with its avowed principle, is intrinsically right. I insist that it is not. Take the particular case. A controversy had arisen between the advocates and opponents of slavery, in relation to its establishment within the country we had purchased of France. The southern, and then best part of the purchase, was already in as a slave state. The controversy was settled by also letting Missouri in as a slave State; but with the agreement that within all the remaining part of the purchase, North of a certain line, there should never be slavery. As to what was to be done with the remaining part south of the line, nothing was said; but perhaps the fair implication was, that it should come in with slavery if it should so choose. The southern part, except a portion heretofore mentioned, afterwards did come in with slavery, as the State of Arkansas. All these many years since 1820, the Northern part had remained a wilderness. At length settlements began in it also. In due course, Iowa, came in as a free State, and Minnesota was given a territorial government, without removing the slavery restriction. Finally the sole remaining part, North of the line, Kansas and Nebraska, was to be organized; and it is proposed, and carried, to blot out the old dividing line of thirty-four years standing, and to open the whole of that country to the introduction of slavery. Now, this, to my mind, is manifestly unjust. After an angry and dangerous controversy, the parties made friends by dividing the bone of contention. The one party first appropriates her own share, beyond all power to be disturbed in the possession of it; and then seizes the share of the other party. It is as if two starving men had divided their only loaf; the one had hastily swallowed his half, and then grabbed the other half just as he was putting it to his mouth!

Let me here drop the main argument, to notice what I consider rather an inferior matter. It is argued that slavery will not go to Kansas and Nebraska, in any event. This is a palliation—a lullaby. I have some hope that it will not; but let us not be too confident. As to climate, a glance at the map shows that there are five slave States—Delaware, Maryland, Virginia, Kentucky, and Missouri—and also the District of Columbia, all north of the Missouri compromise line. The census returns of 1850 show that, within these, there are 867,276 slaves—being more than one-fourth of all the slaves in the nation.

It is not climate, then, that will keep slavery out of these territories. Is there any thing in the peculiar nature of the country? Missouri adjoins these territories, by her entire western boundary, and slavery is already within every one of her western counties. I have even heard it said that there are more slaves, in proportion to whites, in the north western county of Missouri, than within any county of the State. Slavery pressed entirely up to the old western boundary of the State, and when, rather recently, a part of that boundary, at the north-west was moved out a little farther west, slavery followed on quite up to the new line. Now, when the restriction is removed, what is to prevent it from going still further? Climate will not. No peculiarity of the country will—nothing in nature will. Will the disposition of the people prevent it? Those nearest the scene, are all in favor of the extension. The yankees, who are opposed to it may be more numerous; but in military phrase, the battle-field is too far from their base of operations.

But it is said, there now is no law in Nebraska on the subject of slavery; and that, in such case, taking a slave there, operates his freedom. That is good book-law; but is not the rule of actual practice. Wherever slavery is, it has been first introduced without law. The oldest laws we find concerning it, are not laws introducing it; but regulating it, as an already existing thing. A white man takes his slave to Nebraska now; who will inform the negro that he is free? Who will take him before court to test the question of his freedom? In ignorance of his legal emancipation, he is kept chopping, splitting and plowing. Others are brought, and move on in the same track. At last, if ever the time for voting comes, on the question of slavery, the institution already in fact exists in the country, and cannot well be removed. The facts of its presence, and the difficulty of its removal will carry the vote in its favor. Keep it out until a vote is taken, and a vote in favor of it, can not be got in any population of forty thousand, on earth, who have been drawn together by the ordinary motives of emigration and settlement. To get slaves into the country simultaneously with the whites, in the incipient stages of settlement, is the precise stake played for, and won in this Nebraska measure.

The question is asked us, “If slaves will go in, notwithstanding the general principle of law liberates them, why would they not equally go in against positive statute law?—go in, even if the Missouri restriction were maintained?” I answer, because it takes a much bolder man to venture in, with his property, in the latter case, than in the former—because the positive congressional enactment is known to, and respected by all, or nearly all; whereas the negative principle that nolaw is free law, is not much known except among lawyers. We have some experience of this practical difference. In spite of the Ordinance of ’87, a few negroes were brought into Illinois, and held in a state of quasi slavery; not enough, however to carry a vote of the people in favor of the institution when they came to form a constitution. But in the adjoining Missouri country, where there was no ordinance of ’87—was no restriction—they were carried ten times, nay a hundred times, as fast, and actually made a slave State. This is fact—naked fact.

Another LULLABY argument is, that taking slaves to new countries does not increase their number—does not make any one slave who otherwise would be free. There is some truth in this, and I am glad of it, but it [is] not WHOLLY true. The African slave trade is not yet effectually suppressed; and if we make a reasonable deduction for the white people amongst us, who are foreigners, and the descendants of foreigners, arriving here since 1808, we shall find the increase of the black population out-running that of the white, to an extent unaccountable, except by supposing that some of them too, have been coming from Africa. If this be so, the opening of new countries to the institution, increases the demand for, and augments the price of slaves, and so does, in fact, make slaves of freemen by causing them to be brought from Africa, and sold into bondage.

But, however this may be, we know the opening of new countries to slavery, tends to the perpetuation of the institution, and so does KEEP men in slavery who otherwise would be free. This result we do not FEEL like favoring, and we are under no legal obligation to suppress our feelings in this respect.

Equal justice to the south, it is said, requires us to consent to the extending of slavery to new countries. That is to say, inasmuch as you do not object to my taking my hog to Nebraska, therefore I must not object to you taking your slave. Now, I admit this is perfectly logical, if there is no difference between hogs and negroes. But while you thus require me to deny the humanity of the negro, I wish to ask whether you of the south yourselves, have ever been willing to do as much? It is kindly provided that of all those who come into the world, only a small percentage are natural tyrants. That percentage is no larger in the slave States than in the free. The great majority, south as well as north, have human sympathies, of which they can no more divest themselves than they can of their sensibility to physical pain. These sympathies in the bosoms of the southern people, manifest in many ways, their sense of the wrong of slavery, and their consciousness that, after all, there is humanity in the negro. If they deny this, let me address them a few plain questions. In 1820 you joined the north, almost unanimously, in declaring the African slave trade piracy, and in annexing to it the punishment of death. Why did you do this? If you did not feel that it was wrong, why did you join in providing that men should be hung for it? The practice was no more than bringing wild negroes from Africa, to sell to such as would buy them. But you never thought of hanging men for catching and selling wild horses, wild buffaloes or wild bears.

Again, you have amongst you, a sneaking individual, of the class of native tyrants, known as the “SLAVE-DEALER.” He watches your necessities, and crawls up to buy your slave, at a speculating price. If you cannot help it, you sell to him; but if you can help it, you drive him from your door. You despise him utterly. You do not recognize him as a friend, or even as an honest man. Your children must not play with his; they may rollick freely with the little negroes, but not with the “slave-dealer’s children”. If you are obliged to deal with him, you try to get through the job without so much as touching him. It is common with you to join hands with the men you meet; but with the slave dealer you avoid the ceremony—instinctively shrinking from the snaky contact. If he grows rich and retires from business, you still remember him, and still keep up the ban of non-intercourse upon him and his family. Now why is this? You do not so treat the man who deals in corn, cattle or tobacco.

And yet again; there are in the United States and territories, including the District of Columbia, 433,643 free blacks. At $500 per head they are worth over two hundred millions of dollars. How comes this vast amount of property to be running about without owners? We do not see free horses or free cattle running at large. How is this? All these free blacks are the descendants of slaves, or have been slaves themselves, and they would be slaves now, but for SOMETHING which has operated on their white owners, inducing them, at vast pecuniary sacrifices, to liberate them. What is that SOMETHING? Is there any mistaking it? In all these cases it is your sense of justice, and human sympathy, continually telling you, that the poor negro has some natural right to himself—that those who deny it, and make mere merchandise of him, deserve kickings, contempt and death.

And now, why will you ask us to deny the humanity of the slave? and estimate him only as the equal of the hog? Why ask us to do what you will not do yourselves? Why ask us to do for nothing, what two hundred million of dollars could not induce you to do?

But one great argument in the support of the repeal of the Missouri Compromise, is still to come. That argument is “the sacred right of self government.” It seems our distinguished Senator has found great difficulty in getting his antagonists, even in the Senate to meet him fairly on this argument—some poet has said

“Fools rush in where angels fear to tread.”

At the hazzard of being thought one of the fools of this quotation, I meet that argument—I rush in, I take that bull by the horns.

I trust I understand, and truly estimate the right of self-government. My faith in the proposition that each man should do precisely as he pleases with all which is exclusively his own, lies at the foundation of the sense of justice there is in me. I extend the principles to communities of men, as well as to individuals. I so extend it, because it is politically wise, as well as naturally just; politically wise, in saving us from broils about matters which do not concern us. Here, or at Washington, I would not trouble myself with the oyster laws of Virginia, or the cranberry laws of Indiana.

The doctrine of self government is right—absolutely and eternally right—but it has no just application, as here attempted. Or perhaps I should rather say that whether it has such just application depends upon whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself that is self-government; but when he governs himself, and also governs another man, that is more than self-government—that is despotism. If the negro is a man, why then my ancient faith teaches me that “all men are created equal;” and that there can be no moral right in connection with one man’s making a slave of another.

Judge Douglas frequently, with bitter irony and sarcasm, paraphrases our argument by saying “The white people of Nebraska are good enough to govern themselves, but they are not good enough to govern a few miserable negroes!!”

Well I doubt not that the people of Nebraska are, and will continue to be as good as the average of people elsewhere. I do not say the contrary. What I do say is, that no man is good enough to govern another man, without that other’s consent. I say this is the leading principle—the sheet anchor of American republicanism. Our Declaration of Independence says:

“We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, DERIVING THEIR JUST POWERS FROM THE CONSENT OF THE GOVERNED.”

I have quoted so much at this time merely to show that according to our ancient faith, the just powers of governments are derived from the consent of the governed. Now the relation of masters and slaves is, PRO TANTO, a total violation of this principle. The master not only governs the slave without his consent; but he governs him by a set of rules altogether different from those which he prescribes for himself. Allow ALL the governed an equal voice in the government, and that, and that only is self government.

Let it not be said I am contending for the establishment of political and social equality between the whites and blacks. I have already said the contrary. I am not now combating the argument of NECESSITY, arising from the fact that the blacks are already amongst us; but I am combating what is set up as MORAL argument for allowing them to be taken where they have never yet been—arguing against the EXTENSION of a bad thing, which where it already exists, we must of necessity, manage as we best can.

In support of his application of the doctrine of self-government, Senator Douglas has sought to bring to his aid the opinions and examples of our revolutionary fathers. I am glad he has done this. I love the sentiments of those old-time men; and shall be most happy to abide by their opinions. He shows us that when it was in contemplation for the colonies to break off from Great Britain, and set up a new government for themselves, several of the states instructed their delegates to go for the measure PROVIDED EACH STATE SHOULD BE ALLOWED TO REGULATE ITS DOMESTIC CONCERNS IN ITS OWN WAY. I do not quote; but this in substance. This was right. I see nothing objectionable in it. I also think it probable that it had some reference to the existence of slavery amongst them. I will not deny that it had. But had it, in any reference to the carrying of slavery into NEW COUNTRIES? That is the question; and we will let the fathers themselves answer it.

This same generation of men, and mostly the same individuals of the generation, who declared this principle—who declared independence—who fought the war of the revolution through—who afterwards made the constitution under which we still live—these same men passed the ordinance of ’87, declaring that slavery should never go to the north-west territory. I have no doubt Judge Douglas thinks they were very inconsistent in this. It is a question of discrimination between them and him. But there is not an inch of ground left for his claiming that their opinions—their example—their authority—are on his side in this controversy.

Again, is not Nebraska, while a territory, a part of us? Do we not own the country? And if we surrender the control of it, do we not surrender the right of self-government? It is part of ourselves. If you say we shall not control it because it is ONLY part, the same is true of every other part; and when all the parts are gone, what has become of the whole? What is then left of us? What use for the general government, when there is nothing left for it [to] govern?

But you say this question should be left to the people of Nebraska, because they are more particularly interested. If this be the rule, you must leave it to each individual to say for himself whether he will have slaves. What better moral right have thirty-one citizens of Nebraska to say, that the thirty-second shall not hold slaves, than the people of the thirty-one States have to say that slavery shall not go into the thirty-second State at all?

But if it is a sacred right for the people of Nebraska to take and hold slaves there, it is equally their sacred right to buy them where they can buy them cheapest; and that undoubtedly will be on the coast of Africa; provided you will consent to not hang them for going there to buy them. You must remove this restriction too, from the sacred right of self-government. I am aware you say that taking slaves from the States of Nebraska, does not make slaves of freemen; but the African slave-trader can say just as much. He does not catch free negroes and bring them here. He finds them already slaves in the hands of their black captors, and he honestly buys them at the rate of about a red cotton handkerchief a head. This is very cheap, and it is a great abridgement of the sacred right of self-government to hang men for engaging in this profitable trade!

Another important objection to this application of the right of self-government, is that it enables the first FEW, to deprive the succeeding MANY, of a free exercise of the right of self-government. The first few may get slavery IN, and the subsequent many cannot easily get it OUT. How common is the remark now in the slave States—“If we were only clear of our slaves, how much better it would be for us.” They are actually deprived of the privilege of governing themselves as they would, by the action of a very few, in the beginning. The same thing was true of the whole nation at the time our constitution was formed.

Whether slavery shall go into Nebraska, or other new territories, is not a matter of exclusive concern to the people who may go there. The whole nation is interested that the best use shall be made of these territories. We want them for the homes of free white people. This they cannot be, to any considerable extent, if slavery shall be planted within them. Slave States are places for poor white people to remove FROM; not to remove TO. New free States are the places for poor people to go to and better their condition. For this use, the nation needs these territories.

Still further; there are constitutional relations between the slave and free States, which are degrading to the latter. We are under legal obligations to catch and return their runaway slaves to them—a sort of dirty, disagreeable job, which I believe, as a general rule the slave-holders will not perform for one another. Then again, in the control of the government—the management of the partnership affairs—they have greatly the advantage of us. By the constitution, each State has two Senators—each has a number of Representatives; in proportion to the number of its people—and each has a number of presidential electors, equal to the whole number of its Senators and Representatives together. But in ascertaining the number of the people, for this purpose, five slaves are counted as being equal to three whites. The slaves do not vote; they are only counted and so used, as to swell the influence of the white people’s votes. The practical effect of this is more aptly shown by a comparison of the States of South Carolina and Maine. South Carolina has six representatives, and so has Maine; South Carolina has eight presidential electors, and so has Maine. This is precise equality so far; and, of course they are equal in Senators, each having two. Thus in the control of the government, the two States are equals precisely. But how are they in the number of their white people? Maine has 581,813—while South Carolina has 274,567. Maine has twice as many as South Carolina, and 32,679 over. Thus each white man in South Carolina is more than the double of any man in Maine. This is all because South Carolina, besides her free people, has 384,984 slaves. The South Carolinian has precisely the same advantage over the white man in every other free State, as well as in Maine. He is more than the double of any one of us in this crowd. The same advantage, but not to the same extent, is held by all the citizens of the slave States, over those of the free; and it is an absolute truth, without an exception, that there is no voter in any slave State, but who has more legal power in the government, than any voter in any free State. There is no instance of exact equality; and the disadvantage is against us the whole chapter through. This principle, in the aggregate, gives the slave States, in the present Congress, twenty additional representatives—being seven more than the whole majority by which they passed the Nebraska bill.

Now all this is manifestly unfair; yet I do not mention it to complain of it, in so far as it is already settled. It is in the constitution; and I do not, for that cause, or any other cause, propose to destroy, or alter, or disregard the constitution. I stand to it, fairly, fully, and firmly.

But when I am told I must leave it altogether to OTHER PEOPLE to say whether new partners are to be bred up and brought into the firm, on the same degrading terms against me. I respectfully demur. I insist, that whether I shall be a whole man, or only, the half of one, in comparison with others, is a question in which I am somewhat concerned; and one which no other man can have a sacred right of deciding for me. If I am wrong in this—if it really be a sacred right of self-government, in the man who shall go to Nebraska, to decide whether he will be the EQUAL of me or the DOUBLE of me, then after he shall have exercised that right, and thereby shall have reduced me to a still smaller fraction of a man than I already am, I should like for some gentleman deeply skilled in the mysteries of sacred rights, to provide himself with a microscope, and peep about, and find out, if he can, what has become of my sacred rights! They will surely be too small for detection with the naked eye.

Finally, I insist, that if there is ANY THING which it is the duty of the WHOLE PEOPLE to never entrust to any hands but their own, that thing is the preservation and perpetuity, of their own liberties, and institutions. And if they shall think, as I do, that the extension of slavery endangers them, more than any, or all other causes, how recreant to themselves, if they submit the question, and with it, the fate of their country, to a mere hand-full of men, bent only on temporary self-interest. If this question of slavery extension were an insignificant one—one having no power to do harm—it might be shuffled aside in this way. But being, as it is, the great Behemoth of danger, shall the strong gripe of the nation be loosened upon him, to entrust him to the hands of such feeble keepers?

I have done with this mighty argument, of self-government. Go, sacred thing! Go in peace.

But Nebraska is urged as a great Union-saving measure. Well I too, go for saving the Union. Much as I hate slavery, I would consent to the extension of it rather than see the Union dissolved, just as I would consent to any GREAT evil, to avoid a GREATER one. But when I go to Union saving, I must believe, at least, that the means I employ has some adaptation to the end. To my mind, Nebraska has no such adaptation.

“It hath no relish of salvation in it.”

It is an aggravation, rather, of the only one thing which ever endangers the Union. When it came upon us, all was peace and quiet. The nation was looking to the forming of new bonds of Union; and a long course of peace and prosperity seemed to lie before us. In the whole range of possibility, there scarcely appears to me to have been any thing, out of which the slavery agitation could have been revived, except the very project of repealing the Missouri compromise. Every inch of territory we owned, already had a definite settlement of the slavery question, and by which, all parties were pledged to abide. Indeed, there was no uninhabited country on the continent, which we could acquire; if we except some extreme northern regions, which are wholly out of the question. In this state of case, the genius of Discord himself, could scarcely have invented a way of again getting [setting?] us by the ears, but by turning back and destroying the peace measures of the past. The councils of that genius seem to have prevailed, the Missouri compromise was repealed; and here we are, in the midst of a new slavery agitation, such, I think, as we have never seen before.

Who is responsible for this? Is it those who resist the measure; or those who, causelessly, brought it forward, and pressed it through, having reason to know, and, in fact, knowing it must and would be so resisted? It could not but be expected by its author, that it would be looked upon as a measure for the extension of slavery, aggravated by a gross breach of faith. Argue as you will, and long as you will, this is the naked FRONT and ASPECT, of the measure. And in this aspect, it could not but produce agitation. Slavery is founded in the selfishness of man’s nature—opposition to it, is [in?] his love of justice. These principles are an eternal antagonism; and when brought into collision so fiercely, as slavery extension brings them, shocks, and throes, and convulsions must ceaselessly follow. Repeal the Missouri compromise—repeal all compromises—repeal the declaration of independence—repeal all past history, you still can not repeal human nature. It still will be the abundance of man’s heart, that slavery extension is wrong; and out of the abundance of his heart, his mouth will continue to speak.

The structure, too, of the Nebraska bill is very peculiar. The people are to decide the question of slavery for themselves; but WHEN they are to decide; or HOW they are to decide; or whether, when the question is once decided, it is to remain so, or is it to be subject to an indefinite succession of new trials, the law does not say, Is it to be decided by the first dozen settlers who arrive there? or is it to await the arrival of a hundred? Is it to be decided by a vote of the people? or a vote of the legislature? or, indeed by a vote of any sort? To these questions, the law gives no answer. There is a mystery about this; for when a member proposed to give the legislature express authority to exclude slavery, it was hooted down by the friends of the bill. This fact is worth remembering. Some yankees, in the east, are sending emigrants to Nebraska, to exclude slavery from it; and, so far as I can judge, they expect the question to be decided by voting, in some way or other. But the Missourians are awake too. They are within a stone’s throw of the contested ground. They hold meetings, and pass resolutions, in which not the slightest allusion to voting is made. They resolve that slavery already exists in the territory; that more shall go there; that they, remaining in Missouri will protect it; and that abolitionists shall be hung, or driven away. Through all this, bowie-knives and six-shooters are seen plainly enough; but never a glimpse of the ballot-box. And, really, what is to be the result of this? Each party WITHIN, having numerous and determined backers WITHOUT, is it not probable that the contest will come to blows, and bloodshed? Could there be a more apt invention to bring about collision and violence, on the slavery question, than this Nebraska project is? I do not charge, or believe, that such was intended by Congress; but if they had literally formed a ring, and placed champions within it to fight out the controversy, the fight could be no more likely to come off, than it is. And if this fight should begin, is it likely to take a very peaceful, Union-saving turn? Will not the first drop of blood so shed, be the real knell of the Union?

The Missouri Compromise ought to be restored. For the sake of the Union, it ought to be restored. We ought to elect a House of Representatives which will vote its restoration. If by any means, we omit to do this, what follows? Slavery may or may not be established in Nebraska. But whether it be or not, we shall have repudiated—discarded from the councils of the Nation—the SPIRIT of COMPROMISE; for who after this will ever trust in a national compromise? The spirit of mutual concession—that spirit which first gave us the constitution, and which has thrice saved the Union—we shall have strangled and cast from us forever. And what shall we have in lieu of it? The South flushed with triumph and tempted to excesses; the North, betrayed, as they believe, brooding on wrong and burning for revenge. One side will provoke; the other resent. The one will taunt, the other defy; one agrees [aggresses?], the other retaliates. Already a few in the North, defy all constitutional restraints, resist the execution of the fugitive slave law, and even menace the institution of slavery in the states where it exists.

Already a few in the South, claim the constitutional right to take to and hold slaves in the free states—demand the revival of the slave trade; and demand a treaty with Great Britain by which fugitive slaves may be reclaimed from Canada. As yet they are but few on either side. It is a grave question for the lovers of the Union, whether the final destruction of the Missouri Compromise, and with it the spirit of all compromise will or will not embolden and embitter each of these, and fatally increase the numbers of both.

But restore the compromise, and what then? We thereby restore the national faith, the national confidence, the national feeling of brotherhood. We thereby reinstate the spirit of concession and compromise—that spirit which has never failed us in past perils, and which may be safely trusted for all the future. The south ought to join in doing this. The peace of the nation is as dear to them as to us. In memories of the past and hopes of the future, they share as largely as we. It would be on their part, a great act—great in its spirit, and great in its effect. It would be worth to the nation a hundred years’ purchase of peace and prosperity. And what of sacrifice would they make? They only surrender to us, what they gave us for a consideration long, long ago; what they have not now, asked for, struggled or cared for; what has been thrust upon them, not less to their own astonishment than to ours.

But it is said we cannot restore it; that though we elect every member of the lower house, the Senate is still against us. It is quite true, that of the Senators who passed the Nebraska bill, a majority of the whole Senate will retain their seats in spite of the elections of this and the next year. But if at these elections, their several constituencies shall clearly express their will against Nebraska, will these senators disregard their will? Will they neither obey, nor make room for those who will?

But even if we fail to technically restore the compromise, it is still a great point to carry a popular vote in favor of the restoration. The moral weight of such a vote can not be estimated too highly. The authors of Nebraska are not at all satisfied with the destruction of the compromise—an endorsement of this PRINCIPLE, they proclaim to be the great object. With them, Nebraska alone is a small matter—to establish a principle, for FUTURE USE, is what they particularly desire.

That future use is to be the planting of slavery wherever in the wide world, local and unorganized opposition can not prevent it. Now if you wish to give them this endorsement—if you wish to establish this principle—do so. I shall regret it; but it is your right. On the contrary if you are opposed to the principle—intend to give it no such endorsement—let no wheedling, no sophistry, divert you from throwing a direct vote against it.

Some men, mostly whigs, who condemn the repeal of the Missouri Compromise, nevertheless hesitate to go for its restoration, lest they be thrown in company with the abolitionist. Will they allow me as an old whig to tell them good humoredly, that I think this is very silly? Stand with anybody that stands RIGHT. Stand with him while he is right and PART with him when he goes wrong. Stand WITH the abolitionist in restoring the Missouri Compromise; and stand AGAINST him when he attempts to repeal the fugitive slave law. In the latter case you stand with the southern disunionist. What of that? you are still right. In both cases you are right. In both cases you oppose [expose?] the dangerous extremes. In both you stand on middle ground and hold the ship level and steady. In both you are national and nothing less than national. This is good old whig ground. To desert such ground, because of any company, is to be less than a whig—less than a man—less than an American.

I particularly object to the NEW position which the avowed principle of this Nebraska law gives to slavery in the body politic. I object to it because it assumes that there CAN be MORAL RIGHT in the enslaving of one man by another. I object to it as a dangerous dalliance for a few [free?] people—a sad evidence that, feeling prosperity we forget right—that liberty, as a principle, we have ceased to revere. I object to it because the fathers of the republic eschewed, and rejected it. The argument of “Necessity” was the only argument they ever admitted in favor of slavery; and so far, and so far only as it carried them, did they ever go. They found the institution existing among us, which they could not help; and they cast blame upon the British King for having permitted its introduction. BEFORE the constitution, they prohibited its introduction into the north-western Territory—the only country we owned, then free from it. AT the framing and adoption of the constitution, they forbore to so much as mention the word “slave” or “slavery” in the whole instrument. In the provision for the recovery of fugitives, the slave is spoken of as a “PERSON HELD TO SERVICE OR LABOR.” In that prohibiting the abolition of the African slave trade for twenty years, that trade is spoken of as “The migration or importation of such persons as any of the States NOW EXISTING, shall think proper to admit,” &c. These are the only provisions alluding to slavery. Thus, the thing is hid away, in the constitution, just as an afflicted man hides away a wen or a cancer, which he dares not cut out at once, lest he bleed to death; with the promise, nevertheless, that the cutting may begin at the end of a given time. Less than this our fathers COULD not do; and NOW [MORE?] they WOULD not do. Necessity drove them so far, and farther, they would not go. But this is not all. The earliest Congress, under the constitution, took the same view of slavery. They hedged and hemmed it in to the narrowest limits of necessity.

In 1794, they prohibited an out-going slave-trade—that is, the taking of slaves FROM the United States to sell.

In 1798, they prohibited the bringing of slaves from Africa, INTO the Mississippi Territory—this territory then comprising what are now the States of Mississippi and Alabama. This was TEN YEARS before they had the authority to do the same thing as to the States existing at the adoption of the constitution.

In 1800 they prohibited AMERICAN CITIZENS from trading in slaves between foreign countries—as, for instance, from Africa to Brazil.

In 1803 they passed a law in aid of one or two State laws, in restraint of the internal slave trade.

In 1807, in apparent hot haste, they passed the law, nearly a year in advance to take effect the first day of 1808—the very first day the constitution would permit—prohibiting the African slave trade by heavy pecuniary and corporal penalties.

In 1820, finding these provisions ineffectual, they declared the trade piracy, and annexed to it, the extreme penalty of death. While all this was passing in the general government, five or six of the original slave States had adopted systems of gradual emancipation; and by which the institution was rapidly becoming extinct within these limits.

Thus we see, the plain unmistakable spirit of that age, towards slavery, was hostility to the PRINCIPLE, and toleration, ONLY BY NECESSITY.

But NOW it is to be transformed into a “sacred right.” Nebraska brings it forth, places it on the high road to extension and perpetuity; and, with a pat on its back, says to it, “Go, and God speed you.” Henceforth it is to be the chief jewel of the nation—the very figure-head of the ship of State. Little by little, but steadily as man’s march to the grave, we have been giving up the OLD for the NEW faith. Near eighty years ago we began by declaring that all men are created equal; but now from that beginning we have run down to the other declaration, that for SOME men to enslave OTHERS is a “sacred right of self-government.” These principles can not stand together. They are as opposite as God and mammon; and whoever holds to the one, must despise the other. When Pettit, in connection with his support of the Nebraska bill, called the Declaration of Independence “a self-evident lie” he only did what consistency and candor require all other Nebraska men to do. Of the forty odd Nebraska Senators who sat present and heard him, no one rebuked him. Nor am I apprized that any Nebraska newspaper, or any Nebraska orator, in the whole nation, has ever yet rebuked him. If this had been said among Marion’s men, Southerners though they were, what would have become of the man who said it? If this had been said to the men who captured Andre, the man who said it, would probably have been hung sooner than Andre was. If it had been said in old Independence Hall, seventy-eight years ago, the very door-keeper would have throttled the man, and thrust him into the street.

Let no one be deceived. The spirit of seventy-six and the spirit of Nebraska, are utter antagonisms; and the former is being rapidly displaced by the latter.

Fellow countrymen—Americans south, as well as north, shall we make no effort to arrest this? Already the liberal party throughout the world, express the apprehension “that the one retrograde institution in America, is undermining the principles of progress, and fatally violating the noblest political system the world ever saw.” This is not the taunt of enemies, but the warning of friends. Is it quite safe to disregard it—to despise it? Is there no danger to liberty itself, in discarding the earliest practice, and first precept of our ancient faith? In our greedy chase to make profit of the negro, let us beware, lest we “cancel and tear to pieces” even the white man’s charter of freedom.

Our republican robe is soiled, and trailed in the dust. Let us repurify it. Let us turn and wash it white, in the spirit, if not the blood, of the Revolution. Let us turn slavery from its claims of “moral right,” back upon its existing legal rights, and its arguments of “necessity.” Let us return it to the position our fathers gave it; and there let it rest in peace. Let us re-adopt the Declaration of Independence, and with it, the practices, and policy, which harmonize with it. Let north and south—let all Americans—let all lovers of liberty everywhere—join in the great and good work. If we do this, we shall not only have saved the Union; but we shall have so saved it, as to make, and to keep it, forever worthy of the saving. We shall have so saved it, that the succeeding millions of free happy people, the world over, shall rise up, and call us blessed, to the latest generations.

At Springfield, twelve days ago, where I had spoken substantially as I have here, Judge Douglas replied to me—and as he is to reply to me here, I shall attempt to anticipate him, by noticing some of the points he made there.

He commenced by stating I had assumed all the way through, that the principle of the Nebraska bill, would have the effect of extending slavery. He denied that this was INTENDED, or that this EFFECT would follow.

I will not re-open the argument upon this point. That such was the intention, the world believed at the start, and will continue to believe. This was the COUNTENANCE of the thing; and, both friends and enemies, instantly recognized it as such. That countenance can not now be changed by argument. You can as easily argue the color out of the negroes’ skin. Like the “bloody hand” you may wash it, and wash it, the red witness of guilt still sticks, and stares horribly at you.

Next he says, congressional intervention never prevented slavery, any where—that it did not prevent it in the north west territory, now [nor?] in Illinois—that in fact, Illinois came into the Union as a slave State—that the principle of the Nebraska bill expelled it from Illinois, from several old States, from every where.

Now this is mere quibbling all the way through. If the ordinance of ’87 did not keep slavery out of the north west territory, how happens it that the north west shore of the Ohio river is entirely free from it; while the south east shore, less than a mile distant, along nearly the whole length of the river, is entirely covered with it?

If that ordinance did not keep it out of Illinois, what was it that made the difference between Illinois and Missouri? They lie side by side, the Mississippi river only dividing them; while their early settlements were within the same latitude. Between 1810 and 1820 the number of slaves in Missouri INCREASED 7,211; while in Illinois, in the same ten years, they DECREASED 51. This appears by the census returns. During nearly all of that ten years, both were territories—not States. During this time, the ordinance forbid slavery to go into Illinois; and NOTHING forbid it to go into Missouri. It DID go into Missouri, and did NOT go into Illinois. That is the fact. Can any one doubt as to the reason of it?

But, he says, Illinois came into the Union as a slave State. Silence, perhaps, would be the best answer to this flat contradiction of the known history of the country. What are the facts upon which this bold assertion is based? When we first acquired the country, as far back as 1787, there were some slaves within it, held by the French inhabitants at Kaskaskia. The territorial legislation, admitted a few negroes, from the slave States, as indentured servants. One year after the adoption of the first State constitution the whole number of them was—what do you think? just 117—while the aggregate free population was 55,094—about 470 to one. Upon this state of facts, the people framed their constitution prohibiting the further introduction of slavery, with a sort of guaranty to the owners of the few indentured servants, giving freedom to their children to be born thereafter, and making no mention whatever, of any supposed slave for life. Out of this small matter, the Judge manufactures his argument that Illinois came into the Union as a slave State. Let the facts be the answer to the argument.

The principles of the Nebraska bill, he says, expelled slavery from Illinois? The principle of that bill first planted it here—that is, it first came, because there was no law to prevent it—first came before we owned the country; and finding it here, and having the ordinance of ’87 to prevent its increasing, our people struggled along, and finally got rid of it as best they could.

But the principle of the Nebraska bill abolished slavery in several of the old States. Well, it is true that several of the old States, in the last quarter of the last century, did adopt systems of gradual emancipation, by which the institution has finally become extinct within their limits; but it MAY or MAY NOT be true that the principle of the Nebraska bill was the cause that led to the adoption of these measures. It is now more than fifty years, since the last of these States adopted its system of emancipation. If Nebraska bill is the real author of these benevolent works, it is rather deplorable, that he has, for so long a time, ceased working all together. Is there not some reason to suspect that it was the principle of the REVOLUTION, and not the principle of Nebraska bill, that led to emancipation in these old States? Leave it to the people of those old emancipating States, and I am quite sure they will decide, that neither that, nor any other good thing, ever did, or ever will come of Nebraska bill.

In the course of my main argument, Judge Douglas interrupted me to say, that the principle [of] the Nebraska bill was very old; that it originated when God made man and placed good and evil before him, allowing him to choose for himself, being responsible for the choice he should make. At the time I thought this was merely playful; and I answered it accordingly. But in his reply to me he renewed it, as a serious argument. In seriousness then, the facts of this proposition are not true as stated. God did not place good and evil before man, telling him to make his choice. On the contrary, he did tell him there was one tree, of the fruit of which, he should not eat, upon pain of certain death. I should scarcely wish so strong a prohibition against slavery in Nebraska.

But this argument strikes me as not a little remarkable in another particular—in its strong resemblance to the old argument for the “Divine right of Kings.” By the latter, the King is to do just as he pleases with his white subjects, being responsible to God alone. By the former the white man is to do just as he pleases with his black slaves, being responsible to God alone. The two things are precisely alike; and it is but natural that they should find similar arguments to sustain them.

I had argued, that the application of the principle of self-government, as contended for, would require the revival of the African slave trade—that no argument could be made in favor of a man’s right to take slaves to Nebraska, which could not be equally well made in favor of his right to bring them from the coast of Africa. The Judge replied, that the constitution requires the suppression of the foreign slave trade; but does not require the prohibition of slavery in the territories. That is a mistake, in point of fact. The constitution does NOT require the action of Congress in either case; and it does AUTHORIZE it in both. And so, there is still no difference between the cases.

In regard to what I had said, the advantage the slave States have over the free, in the matter of representation, the Judge replied that we, in the free States, count five free negroes as five white people, while in the slave States, they count five slaves as three whites only; and that the advantage, at last, was on the side of the free States.

Now, in the slave States, they count free negroes just as we do; and it so happens that besides their slaves, they have as many free negroes as we have, and thirty-three thousand over. Thus their free negroes more than balance ours; and their advantage over us, in consequence of their slaves, still remains as I stated it.

In reply to my argument, that the compromise measures of 1850, were a system of equivalents; and that the provisions of no one of them could fairly be carried to other subjects, without its corresponding equivalent being carried with it, the Judge denied out-right, that these measures had any connection with, or dependence upon, each other. This is mere desperation. If they have no connection, why are they always spoken of in connection? Why has he so spoken of them, a thousand times? Why has he constantly called them a SERIES of measures? Why does everybody call them a compromise? Why was California kept out of the Union, six or seven months, if it was not because of its connection with the other measures? Webster’s leading definition of the verb “to compromise” is “to adjust and settle a difference, by mutual agreement with concessions of claims by the parties.” This conveys precisely the popular understanding of the word compromise. We knew, before the Judge told us, that these measures passed separately, and in distinct bills; and that no two of them were passed by the votes of precisely the same members. But we also know, and so does he know, that no one of them could have passed both branches of Congress but for the understanding that the others were to pass also. Upon this understanding each got votes, which it could have got in no other way. It is this fact, that gives to the measures their true character; and it is the universal knowledge of this fact, that has given them the name of compromise so expressive of that true character.

I had asked “If in carrying the provisions of the Utah and New Mexico laws to Nebraska, you could clear away other objection, how can you leave Nebraska ‘perfectly free’ to introduce slavery BEFORE she forms a constitution—during her territorial government?—while the Utah and New Mexico laws only authorize it WHEN they form constitutions, and are admitted into the Union?” To this Judge Douglas answered that the Utah and New Mexico laws, also authorized it BEFORE; and to prove this, he read from one of their laws, as follows: “That the legislative power of said territory shall extend to all rightful subjects of legislation consistent with the constitution of the United States and the provisions of this act.”

Now it is perceived from the reading of this, that there is nothing express upon the subject; but that the authority is sought to be implied merely, for the general provision of “all rightful subjects of legislation.” In reply to this, I insist, as a legal rule of construction, as well as the plain popular view of the matter, that the EXPRESS provision for Utah and New Mexico coming in with slavery if they choose, when they shall form constitutions, is an EXCLUSION of all implied authority on the same subject—that Congress, having the subject distinctly in their minds, when they made the express provision, they therein expressed their WHOLE meaning on that subject.

The Judge rather insinuated that I had found it convenient to forget the Washington territorial law passed in 1853. This was a division of Oregon, organizing the northern part, as the territory of Washington. He asserted that, by this act, the ordinance of ’87 theretofore existing in Oregon, was repealed; that nearly all the members of Congress voted for it, beginning in the H.R., with Charles Allen of Massachusetts, and ending with Richard Yates, of Illinois; and that he could not understand how those who now oppose the Nebraska bill, so voted then, unless it was because it was then too soon after both the great political parties had ratified the compromises of 1850, and the ratification therefore too fresh, to be then repudiated.

Now I had seen the Washington act before; and I have carefully examined it since; and I aver that there is no repeal of the ordinance of ’87, or of any prohibition of slavery, in it. In express terms, there is absolutely nothing in the whole law upon the subject—in fact, nothing to lead a reader to THINK of the subject. To my judgment, it is equally free from every thing from which such repeal can be legally implied; but however this may be, are men now to be entrapped by a legal implication, extracted from covert language, introduced perhaps, for the very purpose of entrapping them? I sincerely wish every man could read this law quite through, carefully watching every sentence, and every line, for a repeal of the ordinance of ’87 or any thing equivalent to it.

Another point on the Washington act. If it was intended to be modelled after the Utah and New Mexico acts, as Judge Douglas, insists, why was it not inserted in it, as in them, that Washington was to come in with or without slavery as she may choose at the adoption of her constitution? It has no such provision in it; and I defy the ingenuity of man to give a reason for the omission, other than that it was not intended to follow the Utah and New Mexico laws in regard to the question of slavery.

The Washington act not only differs vitally from the Utah and New Mexico acts; but the Nebraska act differs vitally from both. By the latter act the people are left “perfectly free” to regulate their own domestic concerns, &c.; but in all the former, all their laws are to be submitted to Congress, and if disapproved are to be null. The Washington act goes even further; it absolutely prohibits the territorial legislation [legislature?], by very strong and guarded language, from establishing banks, or borrowing money on the faith of the territory. Is this the sacred right of self-government we hear vaunted so much? No sir, the Nebraska bill finds no model in the acts of ’50 or the Washington act. It finds no model in any law from Adam till today. As Phillips says of Napoleon, the Nebraska act is grand, gloomy, and peculiar; wrapped in the solitude of its own originality; without a model, and without a shadow upon the earth.

In the course of his reply, Senator Douglas remarked, in substance, that he had always considered this government was made for the white people and not for the negroes. Why, in point of mere fact, I think so too. But in this remark of the Judge, there is a significance, which I think is the key to the great mistake (if there is any such mistake) which he has made in this Nebraska measure. It shows that the Judge has no very vivid impression that the negro is a human; and consequently has no idea that there can be any moral question in legislating about him. In his view, the question of whether a new country shall be slave or free, is a matter of as utter indifference, as it is whether his neighbor shall plant his farm with tobacco, or stock it with horned cattle. Now, whether this view is right or wrong, it is very certain that the great mass of mankind take a totally different view. They consider slavery a great moral wrong; and their feelings against it, is not evanescent, but eternal. It lies at the very foundation of their sense of justice; and it cannot be trifled with. It is a great and durable element of popular action, and, I think, no statesman can safely disregard it.

Our Senator also objects that those who oppose him in this measure do not entirely agree with one another. He reminds me that in my firm adherence to the constitutional rights of the slave States, I differ widely from others who are co-operating with me in opposing the Nebraska bill; and he says it is not quite fair to oppose him in this variety of ways. He should remember that he took us by surprise—astounded us—by this measure. We were thunderstruck and stunned; and we reeled and fell in utter confusion. But we rose each fighting, grasping whatever he could first reach—a scythe—a pitchfork—a chopping axe, or a butcher’s cleaver. We struck in the direction of the sound; and we are rapidly closing in upon him. He must not think to divert us from our purpose, by showing us that our drill, our dress, and our weapons, are not entirely perfect and uniform. When the storm shall be past, he shall find us still Americans; no less devoted to the continued Union and prosperity of the country than heretofore.

Finally, the Judge invokes against me, the memory of Clay and of Webster. They were great men; and men of great deeds. But where have I assailed them? For what is it, that their life-long enemy, shall now make profit, by assuming to defend them against me, their life-long friend? I go against the repeal of the Missouri compromise; did they ever go for it? They went for the compromise of 1850; did I ever go against them? They were greatly devoted to the Union; to the small measure of my ability, was I ever less so? Clay and Webster were dead before this question arose; by what authority shall our Senator say they would espouse his side of it, if alive? Mr. Clay was the leading spirit in making the Missouri compromise; is it very credible that if now alive, he would take the lead in the breaking of it? The truth is that some support from whigs is now a necessity with the Judge, and for thus it is, that the names of Clay and Webster are now invoked. His old friends have deserted him in such numbers as to leave too few to live by. He came to his own, and his own received him not, and Lo! he turns unto the Gentiles.

A word now as to the Judge’s desperate assumption that the compromises of ’50 had no connection with one another; that Illinois came into the Union as a slave state, and some other similar ones. This is no other than a bold denial of the history of the country. If we do not know that the Compromises of ’50 were dependent on each other; if we do not know that Illinois came into the Union as a free state—we do not know any thing. If we do not know these things, we do not know that we ever had a revolutionary war, or such a chief as Washington. To deny these things is to deny our national axioms, or dogmas, at least; and it puts an end to all argument. If a man will stand up and assert, and repeat, and re-assert, that two and two do not make four, I know nothing in the power of argument that can stop him. I think I can answer the Judge so long as he sticks to the premises; but when he flies from them, I can not work an argument into the consistency of a maternal gag, and actually close his mouth with it. In such a case I can only commend him to the seventy thousand answers just in from Pennsylvania, Ohio and Indiana.

Source: Collected Works of Abraham Lincoln, edited by Roy P. Basler.

The 25th Anniversary of Justice Clarence Thomas’ Supreme Court Confirmation

After a bitter confirmation battle, the U.S. Senate voted 52 to 48 to confirm Clarence Thomas to the United States Supreme Court on October 15, 1991. He is the second African American Supreme Court Justice, and the only African American currently sitting on the Court.

Thomas was nominated by George H.W. Bush after Thurgood Marshall, the first African American to sit on the Court, announced his retirement in July 1991. Thomas served as chairman of the Equal Employment Opportunity Commission (EEOC) during the Reagan Administration, and was appointed in 1990 to the U.S. Court of Appeals for the District of Columbia Circuit.  He served on the DC Circuit for 16 months before being nominated to the U.S. Supreme Court.

Thomas seemed headed for an easy confirmation until Anita Hill, a former aide at the EEOC, accused him of sexual harassment. Beginning on October 11, 1991, the Senate Judiciary Committee held four days of televised hearings on Hill’s charges. Thomas denied the charges, and continues to deny them to this day. On October 15, 1991, the Senate narrowly voted to approve Thomas’ confirmation.

Justice Thomas is considered the Court’s most reliably conservative voice. He tends to be very quiet (if not completely silent) on the bench, but broke his 10-year silence to ask a question during oral argument shortly after Justice Scalia’s death earlier this year.

In 2016, many conservatives criticized the newly opened National Museum of African American History for having a display related to Anita Hill, but no display noting Justice Thomas’s legacy as the Court’s second and only sitting black Supreme Court Justice.

 

U.S. Presidents (and one Vice President) Who Have Received Nobel Peace Prizes

The Nobel Peace Prize is awarded to those individuals who have “done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses.”

4 U.S. presidents and 1 U.S. vice president have received the Nobel Peace Prize.

(1) In 1906, President Theodore Roosevelt received the prize for his work surrounding the Treaty of Portsmouth, which ended the Russo-Japanese War.

(2) In 1920, President Woodrow Wilson received the prize for his efforts in ending the WWI and in helping create the League of Nations.

(3) In 2002, President Jimmy Carter received the prize for his efforts in finding “peaceful solutions to international conflicts, advancing democracy and human rights, and promoting economic and social development.”

(4) In 2009, President Barack Obama received the prize for his efforts to strengthen international diplomacy and cooperation.

(5) In 2007, Vice President Al Gore received the prize for his efforts to obtain and spread knowledge about climate change.

 

The Founders on Elections and Politics

As we near the November 8 election, I thought I’d share some interesting and relevant quotations from the Founding generation on elections and politics –

(1) “Whenever politics are applied to debauch mankind from their integrity and dissolve the virtue of human nature, they become detestable; and to be a statesman on this plan, is to be commissioned a villain. He who aims at it, leaves a vacancy in his character, which may be filled up with the worst epithets.” – Thomas Paine

(2) “An auxiliary desideratum for the melioration of the Republican form is such a process of elections as will most certainly extract from the mass of the Society the purest and noblest characters which it contains; such as will at once feel most strongly the proper motives to pursue the end of their appointment, and be most capable to devise the proper means of attaining it.” – James Madison, Vices of the Political System of the United States (1787)

(3) “After all, Sir we must submit to this idea, that the true principe of a republic is that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.” – Alexander Hamilton.

(4) “Corruption in Elections has heretofore destroyed all Elective Governments. What Regulations or Precautions may be devised to prevent it in future, I am content with you to leave to Posterity to consider. You and I Shall go to the Kingdom of the just or at least shall be released from the Republick of the Unjust, with Hearts pure and hands clean of all Corruption in Elections: so much I firmly believe. Those who shall introduce the foul Fiend on the Stage, after We are gone must exorcise him as they can.” – John Adams to Thomas Jefferson (April 6, 1796)

(5) “In all free governments, contentions in elections will take place, and, whilst it is confined to our own citizens, it is not to be regretted; but severely indeed ought it to be reprobated, when occasioned by foreign machinations.” – George Washington

(6) “Politics is such a torment than I would advise everyone I love not to mix with it.” -Thomas Jefferson

(7) “When a man assumes a public trust, he should consider himself as public property.” – Thomas Jefferson

(8) “Every man who acts beyond the lien of private life, must expect to pass through two severe examinations. First, as to his motives; secondly, as to his conduct. On the former of these depends his character for honesty; on the latter for wisdom.” – Thomas Paine

(9) “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people.” – James Madison, Federalist No. 57

(10) “[I]n no case ought the eyes of the people to be shut on the conduct of those entrusted with power; nor their tongues tied from a just wholesome censure on it, any more than from merited commendations. If neither gratitude for the honor of the trust, nor responsibility for the use of it, be sufficient to curb the unruly passions of public functionaries, add new bits to the bridle rather than to take it off altogether. This is the precept of common sense illustrated and enforced by experience — un-controuled power, ever has been, and ever will be administered by the passions more than by reason.” – James Madison, Political Reflections

 

Voting is Important, But Serving on a Jury is Really Important, Too!

Many people dread receiving their jury duty summons. So much so that where I work in Washington, DC (yes, the nation’s capital), some 70,000 Washingtonians failed to respond to their jury summons in 2014.

Why Jury Duty Matters?

My friend and colleague Andrew Ferguson published a fabulous book that fully explores why jury duty is so important. Here is a summary of his argument

Turning the dread of jury duty into a form of enjoyment begins with understanding why jury duty matters. Simply put, it may well be the closest you ever come to the Constitution – not just exercising a right it gives you, but participating in the process through which constitutional rights and values come alive in practice. In a country formed from a single founding document, it is amazing how disconnected most of us are from its meaning and purpose. Jury duty changes that reality – it is a day of constitutional connection.

. . .

A jury summons is an invitation to participation. Jurors are asked to involve themselves in some of the most personal, sensational, and terrifying events in a community. It is real life, usually real tragedy, played out in court. Jurors confront disturbing facts, bloody images, or heart-wrenching testimony. A jury may have to decide whether a man lives or dies, or whether a multimillion-dollar company goes bankrupt. A jury will have to pass judgment in a way that will have real-world effects on both parties before the court. This active role was not accidental. Participation in jury service teaches the skills required for democratic self-government. Being a juror lets you develop the habits and skills of citizenship.

Juries and The American Revolution

Juries were viewed as an essential safeguard of liberty well before the American Revolution, but I will start our story here nonetheless.

Early American jurors frequently protected the rights of individuals by refusing to enforce acts of Parliament. In 1735, for example, a New York jury famously acquitted John Peter Zenger of seditious libel for publishing a critique of the colonial governor. They ruled that Zenger had the right to publish the truth, despite being instructed by the trial judge that truth was no defense to a seditious libel charge.

In the Declaration of Independence, the list of “repeated injuries and usurpations” committed by the King of Great Britain included this language justifying Independence: “For depriving us in many cases, of the benefits of Trial by Jury”.

Thomas Jefferson, the principal architect of the Declaration of Independence, would later say “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

Juries and the Constitution

Article III, Section 2, Clause 3 reads

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Joseph Story described the importance of this guarantee of jury trials in all criminal cases in his Commentaries on the Constitution –

§ 1773. It seems hardly necessary in this place to expatiate upon the antiquity, or importance of the trial by jury in criminal cases. It was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties, and watched with an unceasing jealousy and solicitude. The right constitutes the fundamental articles of Magna Charta, in which it is declared, “nullus homo capiatur, nec imprisonetur, aut exulet, aut aliquo modo destruatur, &c.; nisi per legale judicium parium suorum, vel per legem terrae;” no man shall be arrested, nor imprisoned, nor banished, nor deprived of life, &c. but by the judgment of his peers, or by the law of the land. The judgment of his peers here alluded to, and commonly called in the quaint language of former times a trialper pais, or trial by the country, is the trial by a jury, who are called the peers of the party accused, being of the like condition and equality in the state. When our more immediate ancestors removed to America, they brought this great privilege with them, as their birth-right and inheritance, as a part of that admirable common law, which had fenced round, and interposed barriers on every side against the approaches of arbitrary power. It is now incorporated into all our state constitutions, as a fundamental right; and the constitution of the United States would have been justly obnoxious to the most conclusive objection, if it had not recognised, and confirmed it in the most solemn terms.

§ 1774. The great object of a trial by jury in criminal cases is, to guard against a spirit of oppression and tyranny on the part of rulers, and against a spirit of violence and vindictiveness on the part of the people. Indeed, it is often more important to guard against the latter, than the former. The sympathies of all mankind are enlisted against the revenge and fury of a single despot; and every attempt will be made to screen his victims. But how difficult is it to escape from the vengeance of an indignant people, roused into hatred by unfounded calumnies, or stimulated to cruelty by bitter political enmities, or unmeasured jealousies? The appeal for safety can, under such circumstances, scarcely be made by innocence in any other manner, than by the severe control of courts of justice, and by the firm and impartial verdict of a jury sworn to do right, and guided solely by legal evidence and a sense of duty. In such a course there is a double security against the prejudices of judges, who may partake of the wishes and opinions of the government, and against the passions of the multitude, who may demand their victim with a clamorous precipitancy. So long, indeed, as this palladium remains sacred and inviolable, the liberties of a free government cannot wholly fall. But to give it real efficiency, it must be preserved in its purity and dignity; and not, with a view of slight inconveniences, or imaginary burthens, be put into the hands of those, who are incapable of estimating its worth, or are too inert, or too ignorant, or too imbecile, to wield its potent armour. Mr. Justice Blackstone, with the warmth and pride becoming an Englishman living under its blessed protection, has said: “A celebrated French writer, who concludes, that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected, that Rome, Sparta, and Carthage, at the time, when their liberties were lost, were strangers to the trial by jury.”

During the state debates over ratification of the Constitution, many objected to the Constitution’s lack of a guarantee for jury trials in civil cases. This was addressed by the addition of the Seventh Amendment in the Bill of Rights.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The Sixth Amendment also discusses jury trial –

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Thomas Jefferson in 1789 wrote –

We think in America that it is necessary to introduce the people into every department of government as far as they are capable of exercising it; and that this is the only way to ensure a long-continued and honest administration of it’s powers. 1. They are not qualified to exercise themselves the EXECUTIVEdepartment: but they are qualified to name the person who shall exercise it. With us therefore they chuse this officer every 4. years. 2. They are not qualified to LEGISLATE. With us therefore they only chuse the legislators. 3. They are not qualified to JUDGE questions of law; but they are very capable of judging questions of fact. In the form of JURIES therefore they determine all matters of fact, leaving to the permanent judges to decide the law resulting from those facts. But we all know that permanent judges acquire an Esprit de corps, that being known they are liable to be tempted by bribery, that they are misled by favor, by relationship, by a spirit of party, by a devotion to the Executive or Legislative; that it is better to leave a cause to the decision of cross and pile, than to that of a judge biassed to one side; and that the opinion of 12 honest jurymen gives still a better hope of right, than cross and pile does. It is left therefore to the juries, if they think the permanent judges are under any biass [sic] whatever in any cause, to take upon themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty. Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making them. However it is best to have the people in all the three departments where that is possible.

Given this history, you should be much more enthusiastic when you receive your jury summons. I look forward to receiving mine!

What is the Electoral College?

The Constitution and the Electoral College

Article II, Section 1 of the Constitution provides

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

In Federalist No. 68, Alexander Hamilton said of the electoral college

I venture somewhat further; and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages; the union of which was to be desired.

. . .

All these advantages will be happily combined in the plan devised by the convention; which is, that the people of each state shall choose a number of persons as electors, equal to the number of senators and representatives of such state in the national government, who shall assemble within the state and vote for some fit person as president. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the president. But as a majority of the votes might not always happen to centre on one man and as it might be unsafe to permit less than a majority to be conclusive, it is provided, that in such a contingency, the house of representatives shall select out of the candidates, who shall have the five highest numbers of votes, the man who in their opinion may be best qualified for the office.

This process of election affords a moral certainty, that the office of president, will seldom fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue and the little arts of popularity may alone suffice to elevate a man to the first honors in a single state; but it will require other talents and a different kind of merit to establish him in the esteem and confidence of the whole union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the constitution, by those, who are able to estimate the share, which the executive in every government must necessarily have in its good or ill administration.

The electoral college was the result of a compromise at the Constitutional Convention in 1787. There were four possible options proposed for selecting a national executive: election by Congress, election by state governors, election by state legislatures and direct election. The idea of the electoral college was ultimately proposed by the Committee of Eleven on Postponed Matters. The proposal was met by approval by most of the delegates and was added to the Constitution with only minor changes.

The Twelfth Amendment, which was passed by Congress and ratified by the states, after the electoral college tie between Thomas Jefferson and Aaron Burr in 1800, modified Article II, Section 1 as follows –

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. — The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

 

How it Works

When Americans cast their votes for a president and vice president, they are, in reality, voting for the slate of electors in their states pledged to those particular candidates. This group across the states is known collectively as the electoral college. The Constitution (as described above) assigns each state a number of electors. The number is based on the combined total of the state’s Senate and House of Representatives delegations. There are currently 538 electors.

According to the Congressional Research Service,

In 48 states and the District of Columbia, the entire slate of electors winning the most popular votes in the state is elected, a practice known as “winner-take-all” or “the general ticket” system. Maine and Nebraska use an alternative method, the “district system,” which awards two electors to the popular vote winners statewide, and one to the popular vote winners in each congressional district. Electors assemble in their respective states on the Monday after the second Wednesday in December (December 19 in 2016). They are expected, but not constitutionally bound, to vote for the candidates they represent. The electors cast separate ballots for President and Vice President, after which the electoral college ceases to exist until the next presidential election. State electoral vote results are reported to Congress and other designated authorities; they are then counted and declared at a joint session of Congress held on January 6 of the year after the election; Congress may, however, change this date by joint resolution. A majority of electoral votes (currently 270 of 538) is required to win, but the results submitted by any state are open to challenge at the joint session, as provided by law.

The final electoral college vote has reflected the national popular vote in 53 of 57 presidential elections. Andrew Jackson, Samuel Tilden, Grover Cleveland, and Al Gore all won the national popular vote, but lost in the electoral college.