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CHIEF JUSTICE SHAW AND THE FREESOIL CONVENTION.

241

Government was responsible. The act especially denounced. by the Freesoilers was a deliberate enactment of the National Legislature; it had received the official assent of the Presi dent, acting with the advice of the Attorney-General; and it was well known that it had the united sanction of the Justices of the Supreme Court of the United States. Already, in many, if not yet in all the free States, occasion had arisen, or had been taken, for their highest tribunals to pass upon it; and their decisions had been uniformly in support of the law. Among others, the eminent Chief-Justice of Massachusetts (Shaw), perhaps as conversant with the prin ciples of the Constitution and those of the Common Law, as any member of the Freesoil Convention, and reckoned a person of a singularly humane disposition and Christian-like spirit, had given an elaborate and learned opinion, from the bench, in its favor.2

The value of the judgment expressed by this Convention, on the point of law, may be thus estimated. Their fidelity to constitutional obligations is equally determinable. They announced their resolve, that there should be no national legislation for the extradition of slaves. Their objection to this particular measure of legislation, which they declared had "no binding force," applied equally, therefore, to any act whatever, which provided for extradition. They alleged that each and every such statute was repugnant to the Constitution-though the Constitution expressly made provision for the return of slaves; and national legislation, in con

1 An adverse opinion was improvidently given in the Supreme Court of one of the Western States (Wisconsin), which was soon afterwards reversed by itself upon finding it stood alone.

2 Mr. Brown says: "Looking once at an engraving of Sir Matthew Hale, a very great judge,' he said, 'but not greater, I think, than the Chief,' as Judge Shaw was familiarly called. An eminent.lawyer, engaged with him in a case, was once rising to contest what seemed an unfavorable, if not an unfair, ruling. Mr. Choate drew him back and whispered in his ear, ‘Let it go. Sit down. Life, liberty, and property are always safe in his hands." "—Brown's "Life and Writings," vol. i., p. 288.

formity with the clause referred to, had taken place and been in operation for more than sixty years before they passed their resolution. In a word, the doctrines avowed by them showed their Convention to be a conspiracy against the Constitution and the Union; and nothing was lacking but the overt act, to make them as responsible for the consequences of treason as those who, in resentment to this spirit of resistance to the laws of the land, were finally stung by the conduct of these same Freesoilers and their sympathizers and associates into bolder, if more indiscreet rebellion.

At the period in question, however, such intemperate utterances, on the part of the Freesoilers, could be regarded as only injurious to themselves. Indeed, they were treated either with extreme indifference, or only as the ravings of men half insane and wholly powerless. Considering the insignificant disproportion of their apparent numbers to the aggregate vote of the nation, it was thought, in general, that their sentiments were too extravagant to gain much headway, or to become dangerous to the permanent welfare of the country. They had been able, however, in 1844, to make sure the election of Mr. Polk, a candidate thoroughly devoted to Southern views, by withholding about five thousand votes, in New York, from Mr. Clay, who was certainly no abolitionist, but who had distinguished himself, on all occasions, for his humane consideration of the negro race, and by every practicable effort for the amelioration of their condition. On the whole, their spirit of resistance to the will of the people at large, and to the laws of the land, in the view of many who did not consider what weak barriers are constitutions and laws, in the hour of passionate excitement and against popular frenzies, seemed little less absurd than the noted conspiracy of the three tailors of Tooley Street against the British Government. But, in the mean time, fourteen of the seventeen free States had passed laws, which either came in direct conflict with the act of Congress denounced by the Freesoilers, or rendered it so difficult and

CONFIDENCE OF THE WHIGS AND THE DEMOCRATS. 243

expensive to execute it, as practically to deprive the statute of all vital force.1

But, although the gage of battle had thus been thrown down by the enemies of the Constitution, and taken up by its friends of both the Whig and the Democratic side, the ensuing struggle was to take place between the latter two parties. In the plenitude of their united strength, they could

1 It would have been impossible, for instance, to convey an escaped slave from the extreme Eastern States to his master's home by the ordinary means of transportation, without the hazard of disturbance. A crowd could be readily assembled, at a multitude of stopping-places for the trains, by telegraphic messages, and the managers of the "underground railroad" were on the alert. Hence, it was necessary to devise extraordinary modes of carrying the law into effect, which proved so costly to the Government, as well as troublesome to the claimant, in the few cases which occurred, that the extradition soon fell into practical disuse. From the seaports, of course, the fugitive could be sent home, as the opportunity presented itself, under the charge of a United States messenger. On the last occasion of executing the law in Boston, in the case of a negro known as Anthony Burns, the scene, to a cool observer, might have seemed ludicrous, as well as impressive. The city authorities and others certainly took the surest means to create a feverish excitement about an incident which might otherwise have passed off with no great notice in that city; or, perhaps, the not very judicious view of the subject was taken, that it was desirable to affect the public mind by the imposing ceremonies of a great spectacle. In the condition of popular sentiment in Boston at the period in question, a dozen or two resolute officers might have taken the slave to the vessel which was to convey him to Georgia, at noonday, without the least danger of serious tumult. But word was given out previously of the day chosen for the purpose; the militia, to the number of probably a thousand men, were turned out, together with the marines in considerable force, from the neighboring navy yard, with their cannon, and lined the streets through which the procession was to pass. The people from the country thronged into the city, and, doubtless, more than a hundred thousand persons witnessed the demonstration. Burns himself, who had been treated with great kindness during his detention, and who had been provided with a new and shining black suit for the occasion, by the bounty, it was understood, of the proslavery supporters of the law, looked like any thing but a victim; he marched with an air, and was said to have felt highly flattered by the novel distinction conferred upon him. Inordinate importance was given to a matter which should have been treated as an ordinary affair, and, undoubtedly, the effect on popular sentiment was unfavorable.

afford to disregard the former faction, and contend with one another for the possession of political power. Unhappily for themselves, on this occasion, the Whigs played an apparently double and a losing game. Consistency with their expressed opinions, and fidelity to principles which they so solemnly declared, and which, in reality, were essential "to the nationality of the Whig party and the integrity of the Union," demanded that they should select as candidates for national office such eminent men as had led the party in the great struggle for the reëstablishment of those principles. Any wavering on this point would be a sign of weakness of purpose, and could not but give their adversaries decided advantage. It would show a want of confidence in their own professions, and in the political integrity of their followers. It would tend to encourage the falling off of the latter, as temptation presented itself, and place them altogether in a position of unfavorable contrast with their political oppo

nents.

It is by no means impossible that, if Mr. Webster had been nominated, and had survived, as he might, perhaps, have survived, in such an event-for there can be little doubt that a sense of public ingratitude hastened his end-(" then burst his mighty heart")-he would have been elected. The probabilities were the same in favor of Mr. Fillmore, whose administration had brought the country peace, and conferred upon it prosperity and dignity. In his place in the Senate, the former had been conspicuously efficient in the support of those constitutional principles and measures of the Whig party-of which all his life long he was a chief pillar and ornament-set forth so emphatically in the resolutions of its Convention; and those principles and measures had been the groundwork of the policy of Mr. Fillmore's administration, to the success and statesmanlike standard of which Mr. Webster's eminent abilities had so signally contributed. Before the ensuing election, he died a martyr to the most exalted sentiments of American patriotism; while Mr. Fillmore has subsequently manifested, in a manner forever

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honorable to his reputation, his unchanged fidelity, in private life, to the political views which distinguished him in his public relations. A defeat, with either of those gentlemen for candidates, need not have been attended by any of those disastrous consequences which resulted in the final disruption of the party, in its reorganization under the auspices of the Freesoil leaders, and in whatever else has ensued, by reason of the abandonment of principle for the sake of expediency. As it was, its defeat was the signal for a general rout.'

There can be no question that Mr. Webster was deeply solicitous for the nomination-less, perhaps, from any ambitious motive, than as a vindication of his public conduct, due to him, on the part of his political friends. There can be as little question that Mr. Fillmore's friends made every reasonable concession to the claims of Mr. Webster, who, in the course of nature, could expect no future opportunity for the gratification of his wishes. Besides, the cry of " one term" had become more or less popular. But, after all, the Whig Convention was restrained, by motives of supposed policy, from conferring the nomination upon Mr. Webster, between whose pretensions and those of General Scott the contest in the Convention was finally settled in favor of the latter. An exaggerated estimate of the prejudices of the North against the Compromises of 1850, and an overwrought apprehension of their influence upon the election,' doubtless, dictated that

'In his speech to the Convention, Mr. Choate had said, in reply to a question of Mr. John M. Botts:

"I meant to present a sound argument to the Convention, to the end that this Convention might stand committed as men of honor everywhere. I say here and everywhere, give us the man, and you will promote peace and suppress agitation; and if you give us any other, you have no assurance at all that that agitation will be suppressed.”—Brown's "Life and Writings of Choate," vol. i., p. 180. (See also p. 178, of the same.)

2 It was the faint-heartedness of the Northern delegates which defeated Mr. Webster's nomination. The Southern members of the Convention promised one hundred and six votes for him, on their part, whenever it was made certain that forty votes would be given him from the North, which would have secured the nomination; but the latter never rose beyond thirty-two.-See Brown's "Life and Writings of Choate," vol, i., p. 181.

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