master in a free State with his slave" would manumit the slave as effectually as if he had executed a deed of emancipation." Quoting largely from decisions of courts, even in slave States, he made the authoritative and unanswerable statement that, "in every decision of a slave case prior to that of Dred Scott v. Emerson, even the supreme court of Missouri had treated "the constitution of Illinois, the ordinance of 1787, and the Missouri compromise act of 1820," as "in force," and held itself bound to execute them." By it, he said, was reversed "the whole line of adjudication," and it was "in conflict with the decisions of all the courts in the Southern States, with some exceptions of recent cases."

Nor did the eminent jurist forbear allusion, though in courteous and judicial phrase, to the ulterior purposes of these special pleadings and novel rulings of the majority. He recognized, too, a higher law, and a standard of appeal superior to the desperate straits of politicians and the arrogant demands of the Slave Power, though they were recognized within the sacred domain of the Supreme Court. "Rights," he said, "sanctioned for twenty-eight years, ought not to be and cannot be repudiated, with any semblance of justice, by one or two decisions, influenced, as declared, by a determination to counteract the excitement against slavery in the free States. While I lament this excitement as much as any one, I cannot assent that it shall be made the basis of judicial action." Referring to the assertion made that a slave may be taken, "the same as a horse," into any Territory of the United States, he remarked: "It is true, this was said by the court, as also many other things, which are of no authority. Nothing has been said by them which has not a direct bearing on the jurisdiction of the court, against which they decided, can be considered as authority. I shall certainly not regard it as such. . . . . A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence."

The dissenting opinion of Justice Curtis was very decided, thorough, fortified by an impregnable array of authorities, and, from his well-known conservatism, worthy of special

notice. In reply to the assertion of the majority that the negro was not a "citizen," he asserted that "the citizens of the several States were citizens of the United States under the confederation," and he instanced the fact that all free nativeborn inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens," but many of them had "the franchise of electors." He quoted from a decision of a North Carolina court, that "slaves, manumitted here, became freemen, and therefore, if born within North Carolina, are citizens of North Carolina "; and this decision was given, that court affirmed, on a "case brought here by appeal, and was felt to be one of great importance," and "after a very laborious investigation, both by the bar and bench." Speaking of the "surprise" of the people of Massachusetts at the allegation of the majority that negroes were not regarded as citizens in that State, he said that it was true, beyond all controversy, that even descendants of African slaves were made citizens by their constitution, and that those who had the necessary qualifications "exercised the elective. franchise." So of New Hampshire, New York, New Jersey, their histories "show, in a manner which no argument can obscure, that in some of the original thirteen States, free colored persons, before and at the time of the formation of the Constitution, were citizens of those States." They "were not only included in the body of the people of the United States,' by whom the Constitution of the United States was ordained and established, but in at least five of the States they had the power to act, and doubtless did act by their suffrages, upon the question of its adoption;" a singular circumstance, surely, if they were not included among the "citizens " for whom it was established. Nor did the fact that in some States they were deprived of some of the rights possessed by the whites militate against their citizenship. "The truth is," said Judge Curtis, "that citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of any civil rights."

These rulings and opinions, though regarded as obiter dicta

and extra-judicial, produced a profound impression throughout the land, and, of course, excited much comment and many expressions of condemnation and indignant remonstrance. Emboldened by the conflicting utterances of the court, and sanctioned by the dissenting opinions of Justices McLean and Curtis, the press and many of the public men of the country joined in this popular verdict against what was deemed hostile to the legitimate principles of established jurisprudence, and to the demands of that higher law that sits enthroned above all human enactments. Perhaps there were no assaults more severe and noteworthy than those of Mr. Benton. As familiar as any public man with the political and Constitutional history of the government, himself a citizen of a slave State and not averse to the system in obedience to whose behests the decision was given, his judgment and condemnation could not be set aside on the score of ignorance and fanaticism. In a volume, prepared soon after it was pronounced, designed to expose the fallacy of its reasonings, especially in regard to the alleged unconstitutionality of the Missouri compromise, he speaks with great plainness of its principles, and of the purposes for which it was made. Referring to its history and to its revolutionary designs, he said: "I will not inquire into the course of measures which have produced the present disturbance in the Union," nor of "the attempt to compose which by a judicial decision, in which the court overrules the action of two generations, virtually inserts a new clause in the Constitution, changes its character, and makes a new departure in the working of the Federal government." He characterizes, with great force of expression, the decisiveness and completeness of this departure from the uniformity of the action of the government, comprehending "all the departments of all the governments, State and Federal, in all their branches, legislative, executive, and judicial."

While the propagandists were elated and arrogant, the friends of freedom and humanity were cast down and alarmed. It was felt to be at once a blow upon the country and the rights of man, as fatal to the integrity of the nation as to the security and safety of the slave. It was regarded as a

great and grievous calamity, because of its intrinsic wrongfulness and harm; because it was felt to be one of a series of slaveholding encroachments, the culmination of past and the precursor of those yet in store; because it was regarded as a foul stain upon the sacred ermine of the court, a staggering blow upon the popular confidence in the integrity of the judiciary. Thus radical and revolutionary, it not only sought to reverse "the whole line of adjudication," as affirmed by Justice McLean, to make "a new departure in the working of the Federal government," as charged by Mr. Benton, but it sought to change the current of judicial as well as popular thought upon the great question of human rights. Instead of being a matter of "a municipal regulation" of the States, as decided in the Prigg case, it made slavery a creation of the organic law of the land, no longer the exception with freedom the rule, but itself the rule and freedom the exception,Constitution, no longer the sacred shrine of liberty, but the frowning Bastile of a most intolerable despotism.

the

CHAPTER XL.

THE LECOMPTON CONSTITUTION.

Duplicity of the leaders. - Dred Scott decision and the Lecompton constitution, parts of a conspiracy. - Mr. Fessenden's arraignment. — Convention called. Shannon and Geary. - Governor Geary's veto and resignation. - Walker appointed governor. — Fraudulent eensus and registry. - Overtures of free State men. - Walker's address. Election. - Mr. Wilson's visit and advice.

The

latter opposed but taken. — Help from the East. Success. Free State legislature chosen. Attempted frauds. Action of the governor. He loses favor with the administration. Constitution formed. - Unfair mode of submission. Free State men refuse to vote. - XXXVth Congress. - President's message. Sharply criticised by Hale and Trumbull. — Mr. Douglas's opposition and speech. - A slave State the objective point. - Popular sovereignty ignored. Governor Walker's resignation. His letter and testimony concerning the frauds and violence committed. - Stanton, acting governor, calls an early meeting of legislature. — Deposed. - Denver appointed. — President sends Lecompton constitution. - Complete subserviency of the message to the slaveholding cause. - Issue taken by Mr. Fessenden. - Mr. Wilson's motion of inquiry. Message in the House referred to a committee of fifteen. - Speech of Mr. Fessenden. - Memorials of the Kansas legislature. — Naked issue. — Humiliating position of the government.

4

WHEN the prohibition of slavery embodied in the Missouri compromise was repealed, it was declared to be the intent to leave the people of Kansas and Nebraska "perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States." But this was a pretext, a device, a trick. The slave-masters who believed that the Constitution carried slavery into the Territories used this artifice as a temporary expedient to secure the overthrow of the principle of its prohibition, and to open a vast Territory to its polluting touch. Their Northern allies joined in the deception. It was afterward stated, by Judah P. Benjamin, that, at a caucus of Senators, "both wings of the Democracy agreed that each should maintain its particular theory before the public, -one side sustaining squatter sov