alienable right to change their Government as
they pleased—I voted that the change must
be regulated according to law; that a Gov-
ernment regulated and established by law
must be revolutionized according to law; for
any other revolution can sustain itself only
by force. And when the article in relation
to the poll tax was reached, I there desired
to depart from the lessons of the fathers, and
make a change in that. And so in going
through this bill of rights, wherever I am
satisfied, by the experience of the past or the
present, we should make some change—for
we all live to learn—I am not to be tied down
simply by the fact that it was so written by
our fathers. But experience in the State of
Maryland leaving shown the necessity of hav-
ing some provision in your Constitution which
shall not be merely advisory to your exec-
utive and other officers, but one which will
be mandatory, I will vote for that. It was
supposed heretofore that it was only neces-
sary to have an advisory clause: and a few
years past it never was heard of, and any
man who had intimated, when this bill of
rights was drawn, that we should substitute
"shall" for "ought" would have cast a re-
flection upon the State authorities. We had
then seen in reference to many cases that had
arisen—the Pennsylvania cases, the cases un-
der the fugitive slave law—that the rights of
the people were manfully maintained; and
gentlemen would have said, had you proposed
this—"you are reflecting upon the State au-
thorities." But we have lived to see the ne-
cessity of mandatory clauses, I want to say
to the executive: you shall do something.
What, I leave to his judgment. I want the
Constitution to contain something else than
mere advice to him; I want it so framed
that when persons are placed in this position
be shall find it his duty to do something, and
to do the best of his ability. If he cannot
succeed, if the Federal authority is the
stronger, and is determined to exert its pow-
er and will to do it, and any opposition will
bring about a clashing of authority, then it
can be determined bow far measures are to be
pushed. But I want something which shall
declare to our State officers: you must at any
rate do the best you can, for if you do nothing
you certainly fail to do your duty.
Mr. SANDS, If the gentleman will permit
me I would remind him that this fifth article
of the amendments to the Constitution of the
United States, is simply declarative of a prin-
ciple as applied to the Federal Courts; while
our Constitution and bill of rights apply to
our State Courts.
Mr. CLARKE. I want to make this same
principle apply to our State officers.
Mr. SANDS. I think I understand the gen-
tleman's position. I wish to remark that this
amendment to the Constitution of the United
States was simply to regulate a matter in the
Federal Courts which in the State Courts is |
regulated by the bill of rights and the Con-
stitution of the State; that no man shall be
tried in one of the United States Courts, and
held to answer, without the presentment of a
grand jury, and should not be put twice in
jeopardy of life and limb for the same offence,
just as our State Courts apply the matter. I
would like to know of the gentleman how far
his proposed amendment is in consonance
with, or in conflict with the late act of Con-
gress, not yet declared unconstitutional, ex-
pressly defining a great many crimes and
providing the mode of punishment.
Mr. CLARKE. I do not regard it as at all
in conflict with any law of Congress; and
until it is passed upon judicially it must
beregarded as an exercise of constitutional
power.
Mr. SANDS. That act provides for the tak-
ing of certain parties out of the hands of the
State authorities, and subjecting them to a
mode of trial not known to our State laws
and State Courts.
Mr. CLARKE. I think this is it; it provides
that the parties shall betaken from the State
authorities and transferred, not to Military
Courts or Tribunals, but to the civil Courts
of the United States.
Mr. SANDS. I think the gentleman will
find it otherwise.
Mr. CLARKE. There are a great many acts
of Congress; I do not know to which the
gentleman alludes. I will go one step further ;
considering that the gentleman is right, if you
please. When a citizen of the State shall be
placed in this position, if you insert this pro-
vision in the Constitution, it will then become
the duty of the Executive to institute the ne-
cessary proceedings for the protection of the
citizen, to becarried up to the Court of highest
authority, the Supreme Court of the United
States, there to be adjudicated. if this pro-
vision had been in our present Constitution,
I believe, with that before our Executive
some of these cases would have been car-
ried up.
Mr. SANDS. I have no objection to my
friend making a speech when—
Mr. CLARKE:. I want lo show that this is a
practical provision.
Mr. SANDS. In order to get a case before
the Supreme Court of the United States, in
order to test the constitutionality of any law
is the action of the Executive ever necessary ?
Mr. CLARKE Yes, sir: One or two sessions
ago, the Supreme Court decided a case be-
tween Gov. Magoffin, of Kentucky, and Gov.
Dennison, of Ohio, where at practical question
was brought up by the two Governors in
reference to the rights of the States. It is
within the power of the Executive, and if
this provision is inserted it will be made his
duty, as the representative of the State, to
carry the case up to the highest tribunal, the
constitutional umpire, to be decided.
Mr. SANDS. The gentleman can hear what |
