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idly had the signs increased, during the last years, that, in the population of the free states, a deeply rooted moral reaction and regeneration had set in, in respect to the slavery question; and congress, the members of which, with not too many exceptions, were personally honorable men, had sunk so inexpressibly low in respect to this central problem of the life of the republic that the most arrant rogue might have learned skill in his arts from the mendacious shrewdness with which it systematically misled and deceived the people.

That this was the intention of Douglas and his associates was, with the exception of the repeal of the Missouri compromise, the only thing clear and sadly clear in the repealing clause; as to the rest, it had not, even in their own judgment, and spite of all their efforts, been made clear enough. Clayton called attention to the fact that, under the French rule, slavery legally existed in the whole territory of Louisiana to which Kansas-Nebraska had belonged, a fact upon which, to some extent, the claim of the unconstitutionality of the Missouri compromise was based, since it, presumably, violated treaty obligations which, according to the constitution, were inviolable. Hard pressed by Walker, of Wisconsin, Clayton was obliged to grant that according to that, the repeal of the Missouri compromise-even if the compromise was in itself constitutional, that is if congress had the power to prohibit slavery in the territories, which Clayton, indeed, questioned -contrary to the express declaration of the bill, would legislate slavery into the territories, since according to the common law, by the repeal of the repeal of a law, the original law comes again into force. Douglas and Benjamin, of Louisiana, claimed that that principle was not applicable here, since it had no force in the civil and statutory law of Louisiana. Whether this was so or not,

THE REPEALING CLAUSE.

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we cannot examine in this place. What was essential was, as Walker rightly said, that the views of the friends of the bill, on its legal consequences, were diametrically opposed to one another, on a cardinal point. Badger, of North Carolina, endeavored to remedy this by moving a proviso on the 2d of March by which it was provided that the repealing clause should not put in force any earlier law on slavery. 1

2

With this proviso, the repealing clause had, at last, received its definite form, but its want of clearness and its ambiguity had become even greater than before. Badger himself asserted that it did not operate the least material change, but many opponents as well as many friends of the bill were of a very different opinion. In the ranks of the former we may cite Cullom of Tennessee, because he was a sincere and decided slavocrat, notwithstanding he considered the repeal of the Missouri compromise a great wrong and a grave mistake. He declared that if the Missouri compromise was unconstitutional, because, contrary to the stipulations of the purchase treaty, it had set aside the French law in force, it would be equally unconstitutional, if the repeal of the Missouri compromise did not restore the status ante, but create a tabula rasa. And,

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1 "Provided, That nothing herein contained shall be construed to revive or put in force any law or regulation which may have existed prior to the act of the 6th of March, 1820, either protective, establishing, prohibiting, or abolishing slavery." Congr. Globe, ist Sess., 33d Congr., p. 520.

2" And now, sir, as I have stated, I wish, in the first place, to show, and, as far as a subject of this kind is capable of it, to demonstrate, that the bill without the proviso had precisely the same legal effect and operation, and none other, as it had with the proviso." Ib., p. 686.

3 "If, sir, the congress of 1820 had no constitutional power to limit slavery to the line of 36° 30', because it was in violation of the treaty of cession, then the congress of 1854, sitting under the same constitu

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indeed, how could it have made a difference in respect to this side of the constitutional question, that then the will of congress took the place of the French law illegally set aside, and that now squatter sovereignty was to take its place? A part of the southern radicals went much farther, and claimed not only that the principle of the common law above cited would be applicable without the Badger proviso, but expressly demanded, as the right of the south, that it should be applied. Butler could not understand how the equity of the demand could be questioned,1 and Lindley, of Missouri, said that by refusing to restore the status ante, congress would necessarily intervene, while the repeal of the Missouri compromise was based expressly on the principle of non-intervention. *

tion, can have no power to repeal all the French and Spanish laws authorizing slavery in this territory, and much less the clause in the treaty with France which protects slavery; yet this is what the Badger amendment to this bill actually does. . . . Who does not see that that Badger amendment abolishes slavery in these territories as effectually as did the compromise act of 1820, and that if the act of 1820 was unconstitutional, this bill must be unconstitutional for the same reason; for there is intervention by congress in both cases, and exactly to the same extent. The act of 1820 prohibited slavery north of 36° 30', where it was formerly allowed by law and treaty; and the act of 1854, if this bill becomes a law, after repealing the act of 1820, proceeds to abolish slavery in the same territory. It is true that the bill provides that the question whether slavery shall hereafter be established in this territory shall be decided by the future inhabitants of the territories, but the Badger amendment takes away all protection to the property of the citizens of the south emigrating with their slaves to this territory, by nullifying the treaty and laws which, after the repeal of the Missouri compromise, would have been in force, and would have protected slave property. And this is called non-intervention!" Ib., App., p. 541.

1 Ib., p. 291.

2 The Badger proviso establishes the principle of intervention. It does not restore the territories to the condition, in respect to slavery, which they were in before any congressional action on the subject. A plain repeal of the Missouri restriction would do this. What stat

EFFECT OF THE REPEAL.

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Barry, of Mississippi, on the other hand, thought that there was no necessity of taking the affair so tragically. His own doubts about the proviso had greatly diminished, since several distinguished jurists had expressed themselves to the effect, that the simple repeal of the Missouri compromise would not put the old Spanish and French laws in force again. But he declared it to be inequitable on the part of the north not to agree that this should happen, for here the tabula rasa disappeared once more which it was pretended the compromise of 1850 had created, and truth again was in honor, because the precedent could be used against the north-it had not granted in due time that the Mexican laws were repealed in Utah and New Mexico.1 Clayton, however, found no consolation in the fact that the opinions of jurists differed as to the legal effects of the simple repeal of the Missouri compromise. He insisted that the bill had by the proviso undergone a material alteration and called attention to this, that the south, in view of the future annexation. of Cuba should take heed how it created a dangerous precedent. But Caskie, of Virginia, finally showed that all these gentlemen had agitated themselves in vain, since the proviso by no means asserted what they had discovered in it. There was not a word in it to the effect that the older laws should not come into force again but only that this law did not put them in force again; in respect to this question also, congress main

ute, I ask, is it which prevents the laws of slavery, existing in these territories prior to 1820, from being put in force-not the act of 1820, for that is declared to be inoperative and void, and by some contended to be so, ab initio. Then it must be the Badger proviso, which declares, in express terms, that those laws shall not be put in force. That, sir, I call intervention." Ib., p. 796.

1 Ib., p. 618. 2 Ib., p. 760.

tained absolute neutrality and was absolutely passive. That was, indeed, the only correct interpretation of the wording of the law, and hence Weller of California was perfectly right, when, at the very beginning of the discussion, he said, speaking of this question, that it signified nothing that the friends of the bill harbored the most different views of the legal consequences of the simple repeal and of the Badger proviso in regard to the older laws, for the federal supreme court would decide which opinion was the correct one.

Thus this last amendment and clearing up were in perfect keeping with all previous ones. Knowingly, and to some extent industriously, the obscurity was made deeper, and the diversity of views among the originators of the measure had become greater and more many-sided. They had summoned all their wit to give a law of the most immense importance and scope the form of an enigına that

1" He (Millson of Va.) considers it a positive declaration or enactment on the part of his congress, that there shall be no revival of any law relating to slavery, which may have existed in the territory which we propose to organize under the governments of Nebraska and Kansas. Now the bill says no such thing. It only provides, 'That nothing herein contained shall be construed to revive or put in force any law or regulation which may have existed prior to the act of 6th of March, 1820, either protecting, establishing, prohibiting, or abolishing slavery. In other words, not that the laws in question shall not be revived, but simply that we do not undertake to revive them. Any vitality or force which may be inherent in them, is left unimpaired and untouched. If they come into being aliunde the bill, well and good. There is nothing to interfere with them. We only agree that we will not construe the negation of a prohibition, into the affirmation of a protection. We do not say that the laws in question shall not live again, but we say that, living or dead, this bill leaves them as it finds them; it only does not re-enact them. Congress does not propose now to legislate upon, or disturb them, but steers clear of them, and declines to meddle with them in its present action." Ib., p. 1145.

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