Chapter 12

(2.)And now of the denial of Trial by Jury.

Admitting, for the moment, that Congress is intrusted with power over this subject, which truth disowns, stillthe Act is again radically unconstitutional from its denial of Trial by Jury in a question of Personal Liberty and a suit at Common Law. Since on the one side there is a claim of property, and on the other of liberty, both property and liberty are involved in the issue. To this claim on either side is attached Trial by Jury.

To me, Sir, regarding this matter in the light of the Common Law and in the blaze of free institutions, it has always seemed impossible to arrive at any other conclusion. If the language of the Constitution were open to doubt, which it is not, still all the presumptions of law, all the leanings to Freedom, all the suggestions of justice, plead angel-tongued for this right. Nobody doubts that Congress, if it legislates on this matter,mayallow a Trial by Jury. But if itmay, so overwhelming is the claim of justice, itMUST. Beyond this, however, the question is determined by the precise letter of the Constitution.

Several expressions in the provision for the surrender of fugitives from service show the essential character of the proceedings. In the first place, the person must be, not merelycharged, as in the case of fugitives from justice, but actuallyheld to servicein the State from which he escaped. In the second place, he must "be delivered up on claim of the party to whom such service or labor may bedue." These two facts, that he washeldto service, and that his service wasdueto his claimant, are directly placed in issue, and must be proved. Two necessary incidents of the delivery may also be observed. First, it is made in the State where the fugitive is found; and, secondly, it restores to the claimant complete control over the person of the fugitive. From these circumstances it is evident that the proceedings cannot be regarded, in any just sense, as preliminary, or ancillary to some future formal trial, but as complete in themselves, final and conclusive.

These proceedings determine on the one side the question of Property, and on the other the sacred question of Personal Liberty in its most transcendent form,—Liberty not merely for a day or a year, but for life, and the Liberty of generations that shall come after, so long as Slavery endures. To these questions the Constitution, by two specific provisions, attaches Trial by Jury. One is the familiar clause, already adduced: "Nopersonshall be deprived of life,liberty, or property,without due process of law,"—that is, without due proceeding at law, with Trial by Jury. Not stopping to dwell on this, I press at once to the other provision, which is still more express: "In suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of Trial by Jury shall be preserved." This clause, which does not appear in the Constitution as first adopted, was suggested by the very spirit of Freedom. At the close of the National Convention, Elbridge Gerry refused to sign the Constitution because, among other things, it established "a tribunalwithout juries, a Star Chamber as to civil cases."[170]Many united in his opposition, and on the recommendation of the First Congress this additional safeguard was adopted as an amendment.

Now, regarding the question as one of Property, or of Personal Liberty, in either alternative the Trial by Jury is secured. For this position authority is ample. In the debate on the Fugitive Slave Bill of 1817-18, aSenator from South Carolina, Mr. Smith, anxious for the asserted right of property, objected, on this very floor, to a reference of the question, under the writ of Habeas Corpus, to a judge without a jury. Speaking solely for Property, these were his words.

"This would give a judge the sole power of decidingthe right of property the master claims in his slave, instead of trying that right by a jury, as prescribed by the Constitution. He would be judge of matters of law and matters of fact, clothed with all the powers of a jury as well as the powers of a court. Such a principle is unknown in your system of jurisprudence.Your Constitution has forbid it.It preserves the right of Trial by Jury in all cases where the value in controversy exceeds twenty dollars."[171]

But this provision has been repeatedly discussed by the Supreme Court, so that its meaning is not open to doubt. Three conditions are necessary:first, the proceeding must be "a suit";secondly, "at Common Law"; and,thirdly, "where the value in controversy exceeds twenty dollars." In every such case "the right of Trial by Juryshallbe preserved." Judgments of the Supreme Court cover each of these points.

First.In the case ofCohensv.Virginia(6 Wheaton, 407), the Court say: "What is asuit? We understand it to be the prosecution or pursuit of someclaim, demand, or request." Of course, then, the "claim" for a fugitive must be a "suit."

Secondly.In the case ofParsonsv.Bedford et al.(3 Peters, 447), while considering this very clause, the Court say: "ByCommon Lawthe framers of theConstitution meant ... not merely suits which the Common Law recognized among its old and settled proceedings, but suits in whichlegal rightswere to be ascertained and determined.... In a just sense, the Amendment may well be construed to embrace all suits which are not of Equity and Admiralty jurisdiction,whatever may be the peculiar form which they may assume to settle legal rights." Now, since the claim for a fugitive is not a suit in Equity or Admiralty, but a suit to settle what are called legal rights, it must be a "suit at Common Law."

Thirdly.In the case ofLeev.Lee(8 Peters, 44), on a question whether "the value in controversy" was "one thousand dollars or upwards," it was objected, that the appellants, who were petitioners for Freedom, were not of the value of one thousand dollars. But the Court said: "The matter in dispute is the Freedom of the petitioners....This is not susceptible of a pecuniary valuation....We entertain no doubt of the jurisdiction of the Court."[172]Of course, then, since Liberty is above price, the claim to any fugitive always and necessarily presumes that "the value in controversy exceeds twenty dollars."

By these successive steps, sustained by judgments of the highest tribunal, it appears, as in a diagram, that the right of Trial by Jury is secured to the fugitive from service.

This conclusion needs no additional authority; but it receives curious illustration from the ancient recordsof the Common Law, so familiar and dear to the framers of the Constitution. It is said by Mr. Burke, in his magnificent speech on Conciliation with America, that "nearly as many of Blackstone's Commentaries were sold in America as in England,"[173]carrying thither the knowledge of those vital principles of Freedom which were the boast of the British Constitution. Thus imbued, the earliest Continental Congress, in 1774, declared, "That the respective Colonies are entitled to the Common Law of England, and more especially to the great and inestimable privilege of being tried by their Peers of the Vicinage, according to the course of that law."[174]Amidst the troubles which heralded the Revolution, the Common Law was claimed as a birthright.

Now, although the Common Law may not be approached as a source of jurisdiction under the National Constitution,—and on this interesting topic I forbear to dwell,—it is clear that it may be employed to determine the meaning of technical terms in the Constitution borrowed from this law. This, indeed, is expressly sanctioned by Mr. Madison, in his celebrated Report of 1799, while limiting the extent to which the Common Law may be employed. Thus by this law we learn the nature ofTrial by Jury, which, though secured, is not described by the Constitution; also what areAttainder,Habeas Corpus, andImpeachment, all technical terms of the Constitution, borrowed from the Common Law. By this law, and its associate Chancery, we learn what arecases in law and equityto which the judicial power ofthe United States is extended. These instances I adduce merely for example. Also in the same way we learn what aresuits at Common Law.

Now, on principle and authority,a claim for the delivery of a fugitive slave is a suit at Common Law, and is embraced naturally and necessarily in this class of judicial proceedings. This proposition can be placed beyond question. And here, especially, let me ask the attention of all learned in the law. On this point, as on every other in this argument, I challenge inquiry and answer.

History painfully records, that, during the early days of the Common Law, and down even to a late period, a system of Slavery existed in England, known under the name ofvillenage. The slave was generally called avillein, though in the original Latin forms of judicial proceedings he was termednativus, implying slavery by birth. The incidents of this condition are minutely described, and also the mutual remedies of master and slave, all of which were regulated by the Common Law. Slaves sometimes then, as now,escapedfrom their masters. The claim for them, after suchescape, was prosecuted by a "suit at Common Law," to which, as to every suit at Common Law, Trial by Jury was necessarily attached. Blackstone, in his Commentaries, in words which must have been known to all the lawyers of the Convention, said ofvilleins: "They could not leave their lord without his permission;but if they ran away, or were purloined from him,might beCLAIMEDand recovered byACTION, like beasts or other chattels."[175]This very word, "action," of itself implies "a suit at Common Law" with Trial by Jury.

From other sources we learn precisely what theactionwas. That great expounder of the ancient law, Mr. Hargrave, says, "Our Year Books and Books of Entries are full of the forms used in pleading a title to villeins regardant."[176]Though no longer of practical value in England, they remain as monuments of jurisprudence, and as mementos of a barbarous institution. He thus describes the remedy of the master at Common Law.

"The lord's remedy for afugitive villeinwas either by seizure or by suing out a writ ofNativo Habendo, or Neifty, as it is sometimes called. If the lord seized, the villein's most effectual mode of recovering liberty was by the writ ofHomine Replegiando, which had great advantage over the writ ofHabeas Corpus. In theHabeas Corpusthe return cannot be contested by pleading against the truth of it, and consequently on aHabeas Corpus the question of liberty cannot go to a jury for trial.... But in theHomine Replegiandoit was otherwise.... The plaintiff, ... on the defendant's pleading the villenage, had the same opportunity of contesting it as when impleaded by the lord in aNativo Habendo. If the lord sued out aNativo Habendo, and the villenage was denied, in which case the sheriff could not seize the villein,the lord was then to enter his plaint in the county court; and as the sheriff was not allowed to try the question of villenage in his court, the lord could not have any benefit from the writ, without removing the cause by the writ ofPoneinto the King's Bench or Common Pleas."[177]

The authority of Mr. Hargrave is sufficient. But I mean to place this matter beyond all cavil. From the Digest of Lord Chief Baron Comyns, which at theadoption of the Constitution was among the classics of our jurisprudence, I derive another description of the remedy.

"If the lord claims an inheritance in his villein,who flies from his lord against his will, and lives in a place out of the manor to which he is regardant, the lord shall have aNativo Habendo. And upon such writ, directed to the sheriff, he may seize him who does not deny himself to be a villein. But if the defendant say that he is a freeman, the sheriff cannot seize him, but the lord must remove the writ byPonebefore the Justices in Eyre, or in C.B.,where he must count upon it."[178]

An early writer of peculiar authority, Fitzherbert, in hisNatura Brevium, on the writs of the Common Law, thus describes these proceedings.

"The writde Nativo Habendolieth for the lord who claimeth inheritance in any villein,when his villein is run from him, and is remaining within any place out of the manor unto which he is regardant, or when he departeth from his lord against the lord's will: and the writ shall be directed unto the sheriff.... And the sheriff may seize the villein, and deliver him unto his lord, if the villein confess unto the sheriff that he is his villein; but if the villein say to the sheriff that he is frank, then it seemeth that the sheriff ought not to seize him: as it is in a replevin, if the defendant claim property, the sheriff cannot replevy the cattle, but the party ought to sue a writde Proprietate Probanda: and so if the villein say that he is a freeman, &c., then the sheriff ought not to seize him, but then the lord ought to sue aPoneto remove the plea before the Justices in the Common Pleas, or before the Justices in Eyre. But if the villein purchase a writde Libertate Probandabefore the lordhath sued thePoneto remove the plea before the Justices, then that writ ofLibertate Probandais aSupersedeasunto the lord, that he proceed not upon the writ ofNativo Habendotill the Eyre of the Justices, or till the day of the plea be adjourned before the Justices, and that the lord ought not to seize the villein in the mean time."[179]

These authorities are not merely applicable to the general question of freedom, but they distinctly contemplate the case offugitiveslaves, and the "suits at Common Law" for their rendition. Blackstone speaks of villeins who "ran away"; Hargrave of "fugitive villeins"; Comyns of a villein "who flies from his lord against his will"; and Fitzherbert of the proceedings of the lord "when his villein is run from him." The forms, writs, counts, pleadings, and judgments in these suits are all preserved among the precedents of the Common Law. The writs are known as original writs, which the party on either side, at the proper stage, could sue out of right without showing cause. The writ ofLibertate Probandafor a fugitive slave was in this form:—

"Libertate Probanda."The king to the sheriff, &c. A. and B. her sister have showed unto us, that, whereas they are free women, and ready to prove their liberty, F., claiming them to be his neifs unjustly, vexes them; and therefore we command you, that, if the aforesaid A. and B. shall make you secure touching the proving of their liberty, then put that plea before our justices at the first assizes, when they shall come into those parts, because proof of this kind belongeth not to you to take; and in the mean time cause the said A. and B. to have peace thereupon, and tell the aforesaid F. that he maybe there, if he will, to prosecute his plea thereof against the aforesaid A. and B. And have there this writ. Witness, &c."[180]

"Libertate Probanda.

"The king to the sheriff, &c. A. and B. her sister have showed unto us, that, whereas they are free women, and ready to prove their liberty, F., claiming them to be his neifs unjustly, vexes them; and therefore we command you, that, if the aforesaid A. and B. shall make you secure touching the proving of their liberty, then put that plea before our justices at the first assizes, when they shall come into those parts, because proof of this kind belongeth not to you to take; and in the mean time cause the said A. and B. to have peace thereupon, and tell the aforesaid F. that he maybe there, if he will, to prosecute his plea thereof against the aforesaid A. and B. And have there this writ. Witness, &c."[180]

By these various proceedings, all ending in Trial by Jury, Personal Liberty was guarded, even in the unrefined and barbarous days of the early Common Law. Any person claimed as a fugitive slave might invoke this Trial as a sacred right. Whether the master proceeded by seizure, as he might, or by legal process, Trial by Jury, in a suit at Common Law, before one of the high courts of the realm, was equally secured. In the case of seizure, the fugitive, reversing the proceedings, might institute process against his master, and appeal to a Court and Jury. In the case of process by the master, the watchful law secured to the fugitive the same protection. By no urgency of force, by no device of process, could any person claimed as a slave be defrauded of this Trial. Such was the Common Law. If its early boast, that there could be no slaves in England, fails to be true, this at least may be its pride,—that, according to its indisputable principles, the liberty of every man was placed under the guard of Trial by Jury.

These things may seem new to us; but they must have been known to the members of the Convention, particularly to those from South Carolina, through whose influence the provision on this subject was adopted. Charles Cotesworth Pinckney and Mr. Rutledge had studied law at the Temple, one of the English Inns of Court. It would be a discredit to them, and also to other learned lawyers, members of the Convention, to suppose that they were not conversant with the principles and precedents directly applicable to this subject, all of which are set down in works of acknowledgedauthority, and at that time of constant professional study. Only a short time before, in the case of Sommersett, they had been most elaborately examined in Westminster Hall. In a forensic effort of unsurpassed learning and elevation, which of itself vindicates for its author his great juridical name, Mr. Hargrave had fully made them known to such as were little acquainted with the more ancient sources. But even if we could suppose them unknown to the lawyers of the Convention, they are none the less applicable in determining the true meaning of the Constitution.

The conclusion is explicit. Clearly and indisputably, in England, the country of the Common Law, a claim for a fugitive slave was "a suit at Common Law," recognized "among its old and settled proceedings." To question this, in the face of authentic principles and precedents, is preposterous. As well might it be questioned, that a writ of replevin for a horse, or a writ of right for land, was "a suit at Common Law." It follows, then, that thistechnical termof the Constitution, read in the illumination of the Common Law, naturally and necessarily embraces proceedings for the recovery of fugitive slaves,if any such be instituted or allowed under the Constitution. And thus, by the letter of the Constitution, in harmony with the requirements of the Common Law, all such persons, when claimed by their masters, are entitled to Trial by Jury.

Such, Sir, is the argument, briefly uttered, against the constitutionality of the Slave Act. Much more I might say on this matter; much more on the two chief grounds of objection which I have occupied. But I am admonished to hasten on.

Opposing this Act as doubly unconstitutional from the want of power in Congress and from the denial of Trial by Jury, I find myself again encouraged by the example of our Revolutionary Fathers, in a case which is a landmark of history. The parallel is important and complete. In 1765, the British Parliament, by a notorious statute, attempted to draw money from the Colonies through a stamp tax, while the determination of certain questions of forfeiture under the statute was delegated, not to the Courts of Common Law, but to Courts of Admiralty without a jury. The Stamp Act, now execrated by all lovers of Liberty, had this extent and no more. Its passage was the signal for a general flame of opposition and indignation throughout the Colonies. It was denounced as contrary to the British Constitution, on two principal grounds:first, as a usurpation by Parliament of powers not belonging to it, and an infraction of rights secured to the Colonies; and,secondly, as a denial of Trial by Jury in certain cases of property.

The public feeling was variously expressed. At Boston, on the day the Act was to take effect, the shops were closed, the bells of the churches tolled, and the flags of the ships hung at half-mast. At Portsmouth, in New Hampshire, the bells were tolled, and the friends of Liberty were summoned to hold themselves in readiness for her funeral. At New York, the obnoxious Act, headed "Folly of England and Ruin of America," was contemptuously hawked about the streets. Bodies of patriots were organized everywhere under the name of "Sons of Liberty." The merchants, inspired then by Liberty, resolved to import no more goods from England until the repeal of the Act. The orators also spoke. James Otis with fiery tongue appealed to Magna Charta.

Of all the States, Virginia—whose shield bears the image of Liberty trampling upon chains—first declared herself by solemn resolutions, which the timid thought "treasonable,"[181]but which soon found response. New York followed. Massachusetts came next, speaking by the pen of the inflexible Samuel Adams. In an Address from the Legislature to the Governor, the true grounds of opposition to the Stamp Act, coincident with the two radical objections to the Slave Act, are clearly set forth.

"You are pleased to say that the Stamp Act is an Act of Parliament, and as such ought to be observed. This House, Sir, has too great a reverence for the Supreme Legislature of the nationto question its just authority. It by no means appertains to us to presume to adjust the boundaries of thepowerof Parliament;but boundaries there undoubtedly are. We hope we may without offence put your Excellency in mind of that most grievous sentence of excommunication solemnly denounced by the Church in the name of the Sacred Trinity, in the presence of King Henry the Third and the estates of the realm,against all those who should make statutes,OR OBSERVE THEM, BEING MADE, contrary to the liberties of Magna Charta.... The Charter of this Province invests the General Assembly with thepowerof making laws for its internal government and taxation; and this Charter has never yet been forfeited. The Parliament has a right to make all laws within the limits of their own constitution.... The people complain that the Act invests a single judge of the Admiralty with a power to try and determine their property, in controversies arising from internal concerns,without a jury, contrary to the very expression of Magna Charta, that no freeman shall be amerced but by the oath of good and lawful men of the vicinage.... We deeply regret it thatthe Parliament has seen fit to pass such an act as the Stamp Act; we flatter ourselves that the hardships of it will shortly appear to them in such a point of light as shall induce them, in their wisdom, to repeal it;in the mean time we must beg your Excellency to excuse us from doing anything to assist in the execution of it."[182]

Thus in those days spoke Massachusetts. The parallel still proceeds. The unconstitutional Stamp Act was welcomed in the Colonies by the Tories of that day precisely as the unconstitutional Slave Act is welcomed by large and imperious numbers among us. Hutchinson, at that time Lieutenant-Governor and Chief-Justice of Massachusetts, wrote to Ministers in England: "The Stamp Act is received among us with as much decency as could be expected. It leaves no room for evasion, and will execute itself."[183]Like the Judges of our day, in charges to grand juries, he resolutely vindicated the Act, and admonished "the jurors and people" to obey.[184]Like Governors of our day, Bernard, in his speech to the Legislature of Massachusetts, demanded unreasoning submission. "I shall not," says this British Governor, "enter into any disquisition of the policy of the Act.... I have only to say that it is an Act of the Parliament of Great Britain; ... and I trust that the supremacy of that Parliament over all the members of their wide and diffused empire never was and never will be denied within these walls."[185]The military were against the people. A British major of artillery at New York exclaimed, in tones not unlike those now heard, "I will cram the stamps down their throats with the end of my sword!"[186]The elaborate answer of Massachusetts, a paper of historic grandeur, drawn by Samuel Adams, was pronounced "the ravings of a parcel of wild enthusiasts."[187]

Thus in those days spoke the partisans of the Stamp Act. But their weakness was soon manifest. In the face of an awakened community, where discussion has free scope, no men, though supported by office and wealth, can long maintain injustice. Earth, water, Nature they may subdue; but Truth they cannot subdue. Subtle and mighty against all efforts and devices, it fills every region of light with its majestic presence. The Stamp Act was discussed and understood. Its violation of constitutional rights was exposed. By resolutions of legislatures and of town meetings, by speeches and writings, by public assemblies and processions, the country was rallied in peaceful phalanxagainst the execution of the Act. To this great object, within the bounds of Law and the Constitution, were bent all the patriot energies of the land.

And here Boston took the lead. Her records at this time are full of proud memorials. In formal instructions to her representatives, adopted unanimously in Town Meeting at Faneuil Hall, "having been read several times, and put paragraph by paragraph," the following rule of conduct was prescribed.

"We therefore think it our indispensable duty, in justice to ourselves and posterity, as it is our undoubted privilege, in the most open and unreserved, but decent and respectfulterms, to declare our greatest dissatisfaction with this law:and we think it incumbent upon you by no means to join in any public measures for countenancing and assisting in the execution of the same, but to use your best endeavors in the General Assembly to have the inherent, unalienable rights of the people of this Province asserted and vindicated, and left upon the public records, that posterity may never have reason to charge the present times with the guilt of tamely giving them away."[188]

Virginia responded to Boston. Many of her justices of the peace surrendered their commissions, rather than aid in the enforcement of the law, or be "instrumental in the destruction of their country's most essential rights and liberties."[189]

As the opposition deepened, there was a natural tendency to outbreak and violence. But this was carefully restrained. On one occasion, in Boston, it showed itself in the lawlessness of a mob. But the town, at a public meeting in Faneuil Hall, called without delay on the motion of the opponents of the Stamp Act, with James Otis as chairman, condemned the outrage. Eager in hostility to the execution of the Act, Boston cherished municipal order, and constantly discountenanced all tumult, violence, and illegal proceedings. Her equal devotion to these two objects drew the praises and congratulations of other towns. In reply, March 24, 1766, to an Address from the inhabitants of Plymouth, her own consciousness of duty done is thus expressed.

"If the inhabitants of this metropolis have takenthe warrantable and legal measures to prevent that misfortune, of allothers the most to be dreaded, the execution of the Stamp Act, and, as a necessary means of preventing it, have made any spirited applications for opening the custom-houses and courts of justice,—if at the same time they have bore their testimony against outrageous tumults and illegal proceedings, and given any example of the love of peace and good order, next to the consciousness of having done their duty is the satisfaction of meeting with the approbation of any of their fellow-countrymen."[190]

Learn now from the Diary of John Adams the results of this system.

"The year 1765 has been the most remarkable year of my life. That enormous engine, fabricated by the British Parliament, for battering down all the rights and liberties of America,—I mean the Stamp Act,—has raised and spread through the whole continent a spirit that will be recorded to our honor with all future generations. In every Colony, from Georgia to New Hampshire inclusively, the stamp distributors and inspectors have been compelled by the unconquerable rage of the people to renounce their offices. Such and so universal has been the resentment of the people, that every man who has dared to speak in favor of the stamps, or to soften the detestation in which they are held, how great soever his abilities and virtues had been esteemed before, or whatever his fortune, connections, and influence had been, has been seen to sink into universal contempt and ignominy."[191]

The Stamp Act became a dead letter. At the meeting of Parliament numerous petitions were presented, calling for its instant repeal. Franklin, at that time in England, while giving his famous testimony before theHouse of Commons, was asked whether he thought the people of America would submit to this Act, if "moderated." His brief, emphatic response was: "No, never, unless compelled by force of arms."[192]Chatham, weak with disease, yet mighty in eloquence, exclaimed in ever memorable words: "The gentleman tells us, America is obstinate, America is almost in open rebellion.Sir, I rejoice, that America has resisted.Three millions of people, so dead to all the feelings of liberty as voluntarily to submit to be slaves, would have been fit instruments to make slaves of the rest.... The Americans have been wronged; they have been driven to madness by injustice.... Upon the whole, I will beg leave to tell the House what is really my opinion.It is, that the Stamp Act be repealed, absolutely, totally, and immediately."[193]It was repealed. Within less than a year from its original passage, denounced and discredited, it was driven from the Statute Book. In the charnel-house of history, with unclean things of the Past, it now rots. Thither the Slave Act must follow.

Sir, regarding the Stamp Act candidly and cautiously, free from animosities of the time, it is impossible not to see, that, though gravely unconstitutional, it was at most an infringement ofcivilliberty only, not ofpersonalliberty. There was an unjust tax of a few pence, with the chance of amercement by a single judge without a jury; but by no provision of this Act was thepersonalliberty of any man assailed. No freeman could be seized under it as a slave. Such an Act, though justly obnoxious to every lover of Constitutional Liberty, cannot be viewed with the feelings of repugnance enkindled by astatute which assails the personal liberty of every man, and under which any freeman may be seized as a slave. Sir, in placing the Stamp Act by the side of the Slave Act, I do injustice to that emanation of British tyranny. Both infringe important rights: one, of property; the other, the vital right of all, which is to other rights as soul to body,—the right of a man to himself. Both are condemned; but their relative condemnation must be measured by their relative characters. As Freedom is more than property, as Man is above the dollar that he earns, as heaven, to which we all aspire, is higher than earth, where every accumulation of wealth must ever remain, so are the rights assailed by an American Congress higher than those once assailed by the British Parliament. And just in this degree must history condemn the Slave Act more than the Stamp Act.

Sir, I might here stop. It is enough, in this place, and on this occasion, to show the unconstitutionality of this enactment. Your duty commences at once. All legislation hostile to the fundamental law of the land should be repealed without delay. But the argument is not yet exhausted. Even if this Act could claim any validity or apology under the Constitution, which it cannot,it lacks that essential support in the Public Conscience of the States, where it is to be enforced, which is the life of all law, and without which any law must become a dead letter.

The Senator from South Carolina (Mr.Butler) was right, when, at the beginning of the session, he pointedly said that a law which can be enforced only by the bayonet is no law.[194]Sir, it is idle to suppose thatan Act of Congress becomes effective merely by compliance with the forms of legislation. Something more is necessary. The Act must be in harmony with the prevailing public sentiment of the community upon which it bears. I do not mean that the cordial support of every man or of every small locality is necessary; but I do mean that the public feelings, the public convictions, the public conscience, must not be touched, wounded, lacerated, by every endeavor to enforce it. With all these it must be so far in harmony, that, like the laws by which property, liberty, and life are guarded, it may be administered by the ordinary process of courts, without jeoparding the public peace or shocking good men. If this be true as a general rule, if the public support and sympathy be essential to the life of all law, this is especially the case in an enactment which concerns the important and sensitive rights of Personal Liberty. In conformity with this principle, the Legislature of Massachusetts, in 1850, by formal resolution, declared with singular unanimity:—

"We hold it to be the duty of Congress to pass such laws only in regard thereto as will be sustained by the public sentiment of the Free States, where such laws are to be enforced."[195]

The duty of consulting these sentiments was recognized by Washington. While President of the United States, towards the close of his administration, he sought to recover a slave who had fled to New Hampshire. His autograph letter to Mr. Whipple, the Collector at Portsmouth, dated at Philadelphia, 28th November, 1796, which I now hold in my hand, and whichhas never before seen the light, after describing the fugitive, and particularly expressing the desire of "her mistress," Mrs. Washington, for her return, employs the following decisive language:—

"I do not mean, however, by this request, that such violent measures should be usedAS WOULD EXCITE A MOB OR RIOT, WHICH MIGHT BE THE CASE, IF SHE HAS ADHERENTS, OR EVEN UNEASY SENSATIONS IN THE MINDS OF WELL-DISPOSED CITIZENS. Rather than either of these should happen, I would forego her services altogether,—and the example, also, which is of infinite more importance."George Washington."

"George Washington."

Mr. Whipple, in his reply, dated at Portsmouth, December 22, 1796, an autograph copy of which I have, recognizes the rule of Washington.

"I will now, Sir, agreeably to your desire, send her to Alexandria,if it be practicable without the consequences which you except,—that of exciting a riot or a mob, or creating uneasy sensations in the minds of well-disposed persons. The first cannot be calculated beforehand; it will be governed by the popular opinion of the moment, or the circumstances that may arise in the transaction. The latter may be sought into and judged of by conversing with such persons, without discovering the occasion. So far as I have had opportunity, I perceive that different sentiments are entertained on this subject."

The fugitive was never returned, but lived in freedom to a good old age, down to a very recent day, a monument of the just forbearance of him whom we aptly call Father of his Country. True, he sought her return. This we must regret, and find its apology. He was at the time a slaveholder. Often expressing himself with various degrees of force against Slavery,and promising his suffrage for its abolition, he did not see this wrong as he saw it at the close of life, in the illumination of another sphere. From this act of Washington, still swayed by the policy of the world, I appeal to Washington writing his will. From Washington on earth I appeal to Washington in heaven. Seek not by his name to justify any such effort. His death is above his life. His last testament cancels his authority as a slaveholder. However he may have appeared before man, he came into the presence of God only as liberator of his slaves. Grateful for this example, I am grateful also, that, while slaveholder, and seeking the return of a fugitive, he has left in permanent record a rule of conduct which, if adopted by his country, will make Slave-Hunting impossible. The chances of riot, or mob, or "even uneasy sensations in the minds of well-disposed citizens," must prevent any such pursuit.[196]

Sir, the existing Slave Act cannot be enforced without violating the precept of Washington. Not merely "uneasy sensations of well-disposed citizens," but rage, tumult, commotion, mob, riot, violence, death, gush from its fatal overflowing fountains:—

"Hoc fonte derivata cladesIn patriam populumque fluxit."[197]

"Hoc fonte derivata clades

In patriam populumque fluxit."[197]

Not a case occurs without endangering the public peace. Workmen are brutally dragged from employments to which they are wedded by years of successful labor; husbands are ravished from wives, and parents fromchildren. Everywhere there is disturbance,—at Detroit, Buffalo, Harrisburg, Syracuse, Philadelphia, New York, Boston. At Buffalo the fugitive was cruelly knocked by a log of wood against a red-hot stove, and his mock trial commenced while the blood still oozed from his wounded head. At Syracuse he was rescued by a sudden mob; so also at Boston. At Harrisburg the fugitive was shot; at Christiana the Slave-Hunter was shot. At New York unprecedented excitement, always with uncertain consequences, has attended every case. Again at Boston a fugitive, according to received report, was first seized under base pretext that he was criminal; arrested only after deadly struggle; guarded by officers acting in violation of the State laws; tried in a court-house girdled by chains, contrary to the Common Law; finally surrendered to Slavery by trampling on the criminal process of the State, under an escort in violation again of the laws of the State, while the pulpits trembled, and the whole people, not merely "uneasy," but swelling with ill-suppressed indignation, though, for the sake of order and tranquillity, without violence, witnessed the shameful catastrophe.

Oppression by an individual is detestable; but oppression by law is worse. Hard and inscrutable, when the law, to which the citizen naturally looks for protection, becomes itself a standing peril. As the sword takes the place of the shield, despair settles down like a cloud. Montesquieu painted this most cruel tyranny, when he said that the man is drowned by the very plank on which he thought to escape.[198]And Moses exposes a kindred harshness, when, in commandment to the Israelites, he mysteriously enjoins; "Thou shalt notseethe a kid in its mother's milk"[199]Alas! every sacrifice under the form of law is only a repetition of this forbidden offence. The victim is the innocent kid, and the law is its mother's milk.

With every attempt to administer the Slave Act, it constantly becomes more revolting, particularly in its influence on the agents it enlists. Pitch cannot be touched without defilement, and all who lend themselves to this work seem at once and unconsciously to lose the better part of man. The spirit of the law passes into them, as the devils entered the swine. Upstart commissioners, mere mushrooms of courts, vie and re-vie with each other. Now by indecent speed, now by harshness of manner, now by denial of evidence, now by crippling the defence, and now by open, glaring wrong, they make the odious Act yet more odious. Clemency, grace, and justice die in its presence. All this is observed by the world. Not a case occurs which does not harrow the souls of good men, bringing tears of sympathy to the eyes, and those other noble tears which "patriots shed o'er dying laws."

Sir, I shall speak frankly. If there be an exception to this feeling, it will be found chiefly with a peculiar class. It is a sorry fact, that the "mercantile interest," in unpardonable selfishness, twice in English history, frowned upon endeavors to suppress the atrocity of Algerine Slavery, that it sought to baffle Wilberforce's great effort for the abolition of the African slave-trade, and that, by a sordid compromise, at the formation of our Constitution, it exempted the same detested, Heaven-defying traffic from American judgment. And now representatives of this "interest," forgetful that Commerceis born of Freedom, join in hunting the Slave. But the great heart of the people recoils from this enactment. It palpitates for the fugitive, and rejoices in his escape. Sir, I am telling you facts. The literature of the age is all on his side. Songs, more potent than laws, are for him. Poets, with voices of melody, sing for Freedom. Who could tune for Slavery? They who make the permanent opinion of the country, who mould our youth, whose words, dropped into the soul, are the germs of character, supplicate for the Slave. And now, Sir, behold a new and heavenly ally. A woman, inspired by Christian genius, enters the lists, like another Joan of Arc, and with marvellous power sweeps the popular heart. Now melting to tears, and now inspiring to rage, her work everywhere touches the conscience, and makes the Slave-Hunter more hateful. In a brief period, nearly one hundred thousand copies of "Uncle Tom's Cabin" have been already circulated.[200]But this extraordinary and sudden success, surpassing all other instances in the records of literature, cannot be regarded as but the triumph of genius. Better far, it is the testimony of the people, by an unprecedented act, against the Fugitive Slave Bill.

These things I dwell upon as incentives and tokens of an existing public sentiment, rendering this Act practically inoperative, except as a tremendous engine of horror. Sir, the sentiment is just. Even in the lands of Slavery, the slave-trader is loathed as an ignoble character, from whom the countenance is turned away; and can the Slave-Hunter be more regarded, while pursuing his prey in a land of Freedom? In early Europe, inbarbarous days, while Slavery prevailed, a Hunting Master—nachjagender Herr, as the Germans called him—was held in aversion. Nor was this all. The fugitive was welcomed in the cities, and protected against pursuit. Sometimes vengeance awaited the Hunter. Down to this day, at Revel, now a Russian city, a sword is proudly preserved with which a Hunting Baron was beheaded, who, in violation of the municipal rights of the place, seized a fugitive slave. Hostile to this Act as our public sentiment may be, it exhibits no similar trophy. The State laws of Massachusetts have been violated in the seizure of a fugitive slave; but no sword, like that of Revel, now hangs at Boston.

I have said, Sir, that this sentiment is just. And is it not? Every escape from Slavery necessarily and instinctively awakens the regard of all who love Freedom. The endeavor, though unsuccessful, reveals courage, manhood, character. No story is read with greater interest than that of our own Lafayette, when, aided by a gallant South Carolinian, in defiance of despotic Austrian ordinances, kindred to our Slave Act, he strove to escape from the bondage of Olmütz. Literature pauses with exultation over the struggles of Cervantes, the great Spaniard, while a slave in Algiers, to regain the liberty for which he declared to his companions "we ought to risk life itself, Slavery being the greatest evil that can fall to the lot of man."[201]Science, in all her manifold triumphs, throbs with pride and delight, that Arago, astronomer and philosopher,—devoted republican also,—was rescued from barbarous Slavery to become one of her greatest sons. Religion rejoices serenely, with joy unspeakable, in the final escape of Vincent de Paul. In the public square of Tunis, exposed to the inspection of traffickers in human flesh, this illustrious Frenchman was subjected to every vileness of treatment, compelled, like a horse, to open his mouth, to show his teeth, to trot, to run, to exhibit his strength in lifting burdens, and then, like a horse, legally sold in market overt. Passing from master to master, after protracted servitude, he achieved his freedom, and, regaining France, commenced that resplendent career of charity by which he is placed among the great names of Christendom. Princes and orators have lavished panegyric upon this fugitive slave, and, in homage to his extraordinary virtues, the Catholic Church has introduced him into the company of Saints.

Less by genius or eminent service than by suffering are the fugitive slaves of our country now commended. For them every sentiment of humanity is aroused.

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