FOOTNOTES

"Who could refrain,That had a heart to love, and in that heartCourage to make his love known?"

"Who could refrain,

That had a heart to love, and in that heart

Courage to make his love known?"

Rude and ignorant they may be; but in their very efforts for Freedom they claim kindred with all that is noble in the Past. Romance has no stories of more thrilling interest. Classical antiquity has preserved no examples of adventure and trial more worthy of renown. They are among the heroes of our age. Among them are those whose names will be treasured in the annals of their race. By eloquent voice they have done much to make their wrongs known, and to secure the respect of the world. History will soon lend her avenging pen. Proscribed by you during life, they will proscribe you through all time. Sir, already judgment is beginning. A righteous public sentiment palsies your enactment.

And now, Sir, let us review the field over which we have passed. We have seen that any compromise, finally closing the discussion of Slavery under the Constitution, is tyrannical, absurd, and impotent; that, as Slavery can exist only by virtue of positive law, and as it has no such positive support in the Constitution, it cannot exist within the national jurisdiction; that the Constitution nowhere recognizes property in man, and that, according to its true interpretation, Freedom and not Slavery is national, while Slavery and not Freedom is sectional; that in this spirit the National Government was first organized under Washington, himself an Abolitionist, surrounded by Abolitionists, while the whole country, by its Church, its Colleges, its Literature, and all its best voices, was united against Slavery, and the national flag at that time nowhere within the National Territory covered a single slave; still further, that the National Government is a Government of delegated powers, and, as among these there is no power to support Slavery, this institution cannot be national, nor can Congress in any way legislate in its behalf; and, finally, that the establishment of this principle is the true way of peace and safety for the Republic. Considering next the provision for the surrender of fugitives from service, we have seen that it was not one of the original compromises of the Constitution; that it was introduced tardily and with hesitation, and adopted with little discussion, while then and for a long period thereafter it was regarded with comparative indifference; that the recent Slave Act, though many times unconstitutional, is especially so on two grounds,—first, as a usurpation by Congress of powers not granted by the Constitution, and an infraction of rights secured to theStates, and,secondly, as the denial of Trial by Jury, in a question of Personal Liberty and a suit at Common Law; that its glaring unconstitutionally finds a prototype in the British Stamp Act, which our fathers refused to obey as unconstitutional on two parallel grounds,—first, because it was a usurpation by Parliament of powers not belonging to it under the British Constitution, and an infraction of rights belonging to the Colonies, and,secondly, because it was the denial of Trial by Jury in certain cases of property; that, as Liberty is far above property, so is the outrage perpetrated by the American Congress far above that perpetrated by the British Parliament; and, finally, that the Slave Act has not that support, in the public sentiment of the States where it is to be executed, which is the life of all law, and which prudence and the precept of Washington require.

Sir, thus far I have arrayed the objections to this Act, and the false interpretations out of which it has sprung. But I am asked what I offer as a substitute for the legislation which I denounce. Freely I answer. It is to be found in a correct appreciation of the provision of the Constitution under which this discussion occurs. Look at it in the double light of Reason and of Freedom, and we cannot mistake the exact extent of its requirements. Here is the provision:—

"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

From the very language employed, it is obvious that this is merely acompactbetween the States, with aprohibitionon the States,conferring no power on the Nation. In its natural signification it is a compact. According to examples of other countries, and principles of jurisprudence, it is a compact. Arrangements for extradition of fugitives have been customarily compacts. Except under express obligations of treaty, no nation is bound to surrender fugitives. Especially has this been the case with fugitives for Freedom. In mediæval Europe cities refused to recognize this obligation in favor of persons even under the same National Government. In 1531, while the Netherlands and Spain were united under Charles the Fifth, the Supreme Council of Mechlin rejected an application from Spain for the surrender of a fugitive slave. By express compact alone could this be secured. But the provision of the Constitution was borrowed from the Ordinance of the Northwestern Territory,[202]which is expressly declared to be a compact; and this Ordinance, finally drawn by Nathan Dane, was itself borrowed, in distinctive feature, from the early institutions of Massachusetts, among which, as far back as 1643, was a compact of like nature with other New England States.[203]Thus this provision is a compactin language, in nature, in its whole history; as we have already seen, it is a compact according to the intentions of our fathers and the genius of our institutions.

As a compact, its execution depends absolutely upon the States, without any intervention of the Nation.Each State, in the exercise of its own judgment, will determine for itself the precise extent of obligation assumed.As a compact in derogation of Freedom, it must be construed strictly in every respect, leaning always in favor of Freedom, and shunning any meaning, not clearly necessary, which takes away important personal rights; mindful that the parties to whom it is applicable are regarded as "persons," of course with all the rights of "persons," under the Constitution; especially mindful of the vigorous maxim of the Common Law, early announced by Fortescue, that "he is to be adjudged impious and cruel who does not favor Liberty"[204]; and also completely adopting, in letter and spirit, as becomes a just people, the rule of the great Commentator, that "the law is always ready to catch at anything in favor of Liberty."[205]With this key the true interpretation is natural and easy.

Briefly, the States are prohibited from any "law or regulation" by which any "person" escaped from "service or labor" may be discharged therefrom, and on establishment of the claim to such "service or labor" he is to be "delivered up." But the mode by which the claim shall be tried and determined is not specified. All this is obviously within the control of each State. It may be by virtue of express legislation; in which event, any Legislature, justly careful of Personal Liberty, would surround the fugitive with every shield of Law and Constitution. But here a fact pregnant with Freedom must be studiously observed. The nameSlave—that litany of wrong and woe—does not appear in the clause. Here is no unambiguous phrase, incapable of a double sense,—no "positive" language, applicable only to slaves, and excluding all other classes,—no word of that absolute certainty in every particular which forbids any interpretation except that of Slavery, and makes it impossible "to catch at anything in favor of Liberty." Nothing of this kind is here. But, passing from this,—"impiously and cruelly" renouncing for the moment all leanings for Freedom,—refusing "to catch at anythingin favor of Liberty,"—abandoning the cherished idea of the Fathers, that it was "wrongto admit in the Constitution the idea that there could be property in men,"—and, in the face of these commanding principles, assuming two things,—first, that, in the evasive language of this clause, the Convention, whatever may have been the aim of individual members, really intended fugitive slaves, which is sometimes questioned, and, secondly, that, if they so intended, the language employed can be judicially regarded as justly applicable to fugitive slaves, which is often and earnestly denied,—then the whole proceeding, without any express legislation, may be left to ancient and authentic forms of the Common Law, familiar to the framers of the Constitution, and ample for the occasion. If the fugitive be seized without process, he will be entitled at once to his writde Homine Replegiando, while the master, resorting to process, may find his remedy in the writde Nativo Habendo, each requiring trial by jury. If, from ignorance or lack of employment, these processes have slumbered in our country, still they belong to the great arsenal of the Common Law, and continue, like other ancient writs,tanquam gladius in vagina, ready to be employed at the first necessity. They belong to the safeguards of the citizen. But in any event, and in either alternative, the proceeding would be by "suit at Common Law," with Trial by Jury; and it would be the solemn duty of the court, according to all the forms and proper delays of the Common Law, to try the case on the evidence, strictly to apply all protecting rules of evidence, and especially to require stringent proof, by competent witnesses under cross-examination, that the person claimed washeldto service, that his service wasdueto the claimant, that he hadescapedfrom the State where such service was due, and also proof of thelawsof the State under which he was held.Still further, to the Courts of each State must belong the determination of the question, to what class of persons, according to just rules of interpretation, the phrase "person held to service or labor" is strictly applicable.

Such is this much debated provision. The Slave States, at the formation of the Constitution, did not propose, as in cases of Naturalization and Bankruptcy, to empower the National Governmentto establish an uniform rulefor the rendition of fugitives from service,throughout the United States; they did not ask the National Government to charge itself in any way with this service; they did not venture to offend the country, and particularly the Northern States, by any such assertion of hateful pretension. They were content, under the sanctions of compact, in leaving it to the public sentiment of the States. There, I insist, it must remain.

Mr. President, I have occupied much time; but the great subject still stretches before us. One other point yet remains, which I must not leave untouched, and which justly belongs to the close. The Slave Act violates the Constitution, and shocks the Public Conscience. With modesty, and yet with firmness, let me add, Sir, it offends against the Divine Law. No such enactment is entitled to support. As the throne of God is above every earthly throne, so are his laws and statutes above all the laws and statutes of man. To question these is to question God himself. But to assume that human laws are beyond question is to claim for their fallible authors infallibility. To assume that they are alwaysin conformity with the laws of God is presumptuously and impiously to exalt man even to equality with God. Clearly, human laws are not always in such conformity; nor can they ever be beyond question from each individual. Where the conflict is open, as if Congress should command the perpetration of murder, the office of conscience as final arbiter is undisputed. But in every conflict the same queenly office is hers. By no earthly power can she be dethroned. Each person, after anxious examination, without haste, without passion, solemnly for himself must decide this great controversy. Any other rule attributes infallibility to human laws, places them beyond question, and degrades all men to an unthinking, passive obedience.

According to St. Augustine, an unjust law does not appear to be a law:Lex esse non videtur quæ justa non fuerit.[206]And the great Fathers of the Church, while adopting these words, declare openly that unjust laws are not binding. Sometimes they are called "iniquity," and not law; sometimes "violences," and not laws.[207]And here again the conscience of each person is final arbiter. But this lofty principle is not confined to the Church. Earlier than the Church, a sublime Heathen announced the same truth. After assailing indignantly that completest folly which would find the rule of justice in human institutions and laws, and then asking if the laws of tyrants are just simply because laws, Cicerodeclares, that, if edicts of popular assemblies, decrees of princes, and decisions of judges constitute right, then there may be a right to rob, a right to commit adultery, a right to set up forged wills; whereas he does not hesitate to say that pernicious and pestilent statutes can be no more entitled to the name of law than robber codes; and he concludes, in words as strong as those of St. Augustine, that an unjust law is null.[208]A master of philosophy in early Europe, of intellectual renown, the eloquent Abelard, in Latin verses addressed to his son, clearly expresses the universal injunction:—

"Jussa potestatis terrenæ discutienda:Cœlestis tibi mox perficienda scias.Si quis divinis jubeat contraria jussis,Te contra Dominum pactio nulla trahat."[209]

"Jussa potestatis terrenæ discutienda:

Cœlestis tibi mox perficienda scias.

Si quis divinis jubeat contraria jussis,

Te contra Dominum pactio nulla trahat."[209]

The mandates of an earthly power are to be discussed; those of Heaven must at once be performed; nor shouldwe suffer ourselves to be drawn by any compact into opposition to God. Such is the rule of morals. Such, also, by the lips of judges and sages, is the proud declaration of English law, whence our own is derived. In this conviction, patriots have braved unjust commands, and martyrs have died.

And now, Sir, the rule is commended to us. The good citizen, who sees before him the shivering fugitive, guilty of no crime, pursued, hunted down like a beast, while praying for Christian help and deliverance, and then reads the requirements of this Act, is filled with horror. Here is a despotic mandate "to aid and assist in the prompt and efficient execution of this law."[210]Again let me speak frankly. Not rashly would I set myself against any requirement of law. This grave responsibility I would not lightly assume. But here the path of duty is clear. By the Supreme Law, which commands me to do no injustice, by the comprehensive Christian Law of Brotherhood,by the Constitution, which I have sworn to support,I am bound to disobey this act. Never, in any capacity, can I render voluntary aid in its execution. Pains and penalties I will endure, but this great wrong I will not do. "Where I cannot obey actively, there I am willing to lie down and to suffer what they shall do unto me": such was the exclamation of him to whom we are indebted for the "Pilgrim's Progress," while in prison for disobedience to an earthly statute.[211]Better suffer injustice than do it. Better victim than instrument of wrong. Better even the poor slave returned to bondage than the wretched Commissioner.

There is, Sir, an incident of history which suggests a parallel, and affords a lesson of fidelity. Under the triumphant exertions of that Apostolic Jesuit, St. Francis Xavier, large numbers of Japanese, amounting to as many as two hundred thousand,—among them princes, generals, and the flower of the nobility,—were converted to Christianity. Afterwards, amidst the frenzy of civil war, religious persecution arose, and the penalty of death was denounced against all who refused to trample upon the effigy of the Redeemer. This was the Pagan law ofa Pagan land. But the delighted historian records, that from the multitude of converts scarcely one was guilty of this apostasy. The law of man was set at nought. Imprisonment, torture, death, were preferred. Thus did this people refuse to trample on the painted image. Sir, multitudes among us will not be less steadfast in refusing to trample on the living image of their Redeemer.

Finally, Sir, for the sake of peace and tranquillity, cease to shock the Public Conscience; for the sake of the Constitution, cease to exercise a power nowhere granted, and which violates inviolable rights expressly secured. Leave this question where it was left by our fathers, at the formation of our National Government,—in the absolute control of the States, the appointed guardians of Personal Liberty. Repeal this enactment. Let its terrors no longer rage through the land. Mindful of the lowly whom it pursues, mindful of the good men perplexed by its requirements, in the name of Charity, in the name of the Constitution, repeal this enactment, totally and without delay. There is the example of Washington; follow it. There also are words of Oriental piety, most touching and full of warning, which speak to all mankind, and now especially to us: "Beware of the groans of wounded souls, since the inward sore will at length break out. Oppress not to the utmost a single heart; for a solitary sigh has power to overturn a whole world."

[1]Printed, since this Address, in the History of Newton, by Francis Jackson, (Boston, 1854,) p. 336.

[2]American Archives, 4th Series, Vol. I. col. 1038.

[3]American Archives, 4th Series, Vol. I. coll. 1135, 1136.

[4]A Summary View of the Rights of British America: American Archives, 4th Series, Vol. I. col. 696. Memoir, Correspondence, and Miscellanies of Jefferson, Vol. I. p. 111; Writings, Vol. I. p. 135.

[5]Madison's Debates, p. 1263.

[6]Ibid. p. 1429.

[7]Letter to Robert Morris, April 12, 1786: Writings, ed. Sparks, Vol. IX. p. 159.

[8]Annals of Congress, 1st Cong. 2d Sess., 1197, 1198.

[9]Notes on Virginia, Query XVIII.

[10]"In contemplating the causes which may disturb our Union, it occurs as matter of serious concern, that any ground should have been furnished for characterizing parties bygeographicaldiscriminations,NorthernandSouthern,AtlanticandWestern; whence designing men may endeavor to excite a belief that there is a real difference of local interests and views. One of the expedients of party to acquire influence within particular districts is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heart-burnings which spring from these misrepresentations; they tend to render alien to each other those who ought to be bound together by fraternal affection."—Farewell Address: Writings, ed. Sparks, Vol. XII. p. 221.

[11]Robertsv.City of Boston, 5 Cushing R., 206.

[12]General Laws of Massachusetts, 1855, Ch. 256, sec. 1.

[13]Part II. ch. 4, p. 23.

[14]Speech on the Oregon Bill, June 27, 1848: Works, Vol. IV. pp. 507, 511, 512; Congressional Globe, 30th Cong. 1st Sess., Vol. XVIII. p. 876. These extravagances found an echo afterwards. Mr. Pettit, a Senator of the United States from Indiana, after quoting the words, "We hold these truths to be self-evident, that all men are created equal," proceeded to say: "I hold it to be a self-evident lie. There is no such thing. Sir, tell me that the imbecile, the deformed, the weak, the blurred intellect in man is my equal, physically, mentally, or morally, and you tell me a lie. Tell me, Sir, that the slave in the South, who is born a slave, and with but little over one half the volume of brain that attaches to the Northern European race, is his equal, and you tell what is physically a falsehood. There is no truth in it at all." (Speech in the Senate of the United States, February 20, 1854: Congressional Globe, 33d Cong. 1st Sess., Appendix, Vol. XXIX. p. 214.) Mr. Choate, without descending into the same particularity, seems to have reached the same conclusion, when, in addressing political associates, he characterized the Declaration of Independence as "that passionate and eloquent manifesto of a revolutionary war," and then again spoke of its self-evident truths as "the glittering and sounding generalities of natural right." (Letter to the Maine Whig State Central Committee, August 9, 1856: Works, Vol. I. pp. 214, 215.) This great question was a hinge in the famous debate between Mr. Douglas and Mr. Lincoln in the contest for the senatorship of Illinois, when the former said, in various forms of speech, that "the Declaration of Independence only included the white people of the United States," and the latter replied, that "the entire records of the world, from the date of the Declaration of Independence up to within three years ago, may be searched in vain for one single affirmation, from one single man, that the negro was not included in the Declaration." (Political Debates between Hon. Abraham Lincoln and Hon. Stephen A. Douglas in the Campaign of 1858 in Illinois: see speech of Douglas at Springfield, July 17, and of Lincoln at Galesburgh, October 7; andpassim.) Andrew Johnson, speaking in the Senate, showed the side to which he belonged, when he said, after quoting the great words of the Declaration: "Is there an intelligent man throughout the whole country, is there a Senator, when he has stripped himself of all party prejudice, who will come forward and say that he believes that Mr. Jefferson, when he penned that paragraph of the Declaration of Independence, intended it to embrace the African population? Is there a gentleman in the Senate who believes any such thing?... There is not a man of respectable intelligence who will hazard his reputation upon such an assertion." (Congressional Globe, 36th Cong. 1st Sess., December 12, 1859, p. 100.)

[15]Epist. XXX.

[16]Paradise Lost, Book XII. 26.

[17]Locke on Government, Book II. ch. 2, § 4. Hooker, Ecclesiastical Polity, Book I.

[18]Encyclopédie, art.Égalité Naturelle, Tom. V. p. 415.

[19]Moniteur, 1791, No. 259.

[20]Moniteur, 1793, No. 49.

[21]Exposition des Principes et des Motifs du Plan de Constitution: Condorcet, Œuvres, Tom. XII. pp. 336, 413.

[22]Moniteur, 1793, No. 178.

[23]Annuaire Historique Universel pour 1830, Appendice, p. 48.

[24]Book III. § 80. The same idea prevailed with Demosthenes, who, in his First Oration against Aristogiton, pictured the laws as desiring "the just and the beautiful and the useful," which, when found, is set forth in a general ordinance, "equal and alike to all."—Orat. I. contra Aristogit., § 5.

[25]Virgil, Eclog. II. 16.

[26]Revised Statutes, Ch. 23.

[27]Charters and General Laws of the Colony and Province of Massachusetts Bay, p. 186.

[28]Chap. 23, sec. 68.

[29]Chap. 154.

[30]Report to the Primary School Committee, June 15, 1846, on the Petition of Sundry Colored Persons for the Abolition of the Schools for Colored Children, p. 7.

[31]Roberts on Caste, p. 134.

[32]Essai Politique sur le Royaume de la Nouvelle-Espagne, Liv. II. ch. 6.

[33]Charles Comte, Traité de Legislation, Tom. IV. pp. 129, 445.

[34]Grégoire, De la Littérature des Nègres, p. 177.

[35]Democracy in America, Vol. I. p. 461, Ch. XVIII. § 2.

[36]Michel, Histoire des Races Maudites, Tom. I. p. 3.

[37]Chap. 23, sec. 10.

[38]Chap. 23, sec. 15.

[39]General Laws of Massachusetts, 1837, Ch. 241, sec. 2.

[40]Revised Statutes, Ch. 23, sec. 63.

[41]Revised Statutes, Ch. 23.

[42]Perryv.Dover, 12 Pick. R., 213.

[43]Hon. Richard Fletcher.

[44]Commonwealthv.Aves, 18 Pick. R., 210.

[45]Contrat Social, Liv. II. ch. 11.

[46]Coll. Mass. Hist. Soc., Vol. IV. pp. 206, 207.

[47]Satiræ, Lib. I. iv. 85.

[48]1 Samuel, xvi. 7.

[49]Mark, iv. 23, 25.

[50]Hon. George N. Briggs.

[51]Pensées de Pascal, Notes de Condorcet et Voltaire, No. 109.

[52]His will being dated three years before his death.

[53]Louis Blanc, Histoire de la Révolution Française, Tom. X. p. 316.

[54]Guizot, Mémoires pour servir à l'Histoire de mon Temps, Tom. II. p. 219.

[55]Diary, December 18, 1765: Works, Vol. II. p 154.

[56]History of New England (ed. Savage), 1645, Vol. II. p. 229.

[57]An eloquent French critic says, among other things, of this greatest picture of Tintoretto, that "no painting surpasses, or perhaps equals" it, and that, before seeing it, "one can have no idea of the human imagination." (Taine, Italy, Florence, and Venice, tr. Durand, pp. 314, 316.) Some time after this Speech an early copy or sketch of this work fell into Mr. Sumner's hands, and it is now a cherished souvenir of those anxious days when the pretensions of Slavery were at their height.

[58]Le Vicomte d'Orthez à Charles IX.: D'Aubigné, Histoire Universelle, Part. II. Liv. I. ch. 5, cited by Sismondi, Histoire des Français, Tom. XIX. p. 177, note. I gladly copy this noble letter. "Sire, j'ai communiqué le commandement de Votre Majesté à ses fidèles habitans et gens de guerre de la garnison; je n'y ai trouvé que bons citoyens et braves soldats, mais pas un bourreau. C'est pourquoi eux et moi supplions très humblement Votre dite Majesté vouloir employer en choses possibles, quelque hasardeuses qu'elles soient, nos bras et nos vies, comme étant, autant qu'elles dureront, Sire, vôtres."

[59]Essays, XLII. Of Youth and Age.

[60]The Reason of Church Government, Book II., Introduction: Prose Works, ed. Symmons, Vol. I. p. 117.

[61]Daily Commonwealth. April 2, 1851.

[62]Daily Commonwealth, January 15, 1851.

[63]Boston Daily Times, January 10, 1851.

[64]Daily Commonwealth, March 28, 1851.

[65]Ibid., March 31, 1851.

[66]Ibid., April 2, 1851.

[67]Daily Commonwealth, April 25, 1851.

[68]Ibid., April 28, 1851.

[69]National Era, May 1, 1851.

[70]New York Tribune, April 25, 1851.

[71]London Times, May 24, 1851.

[72]This important phrase is thus early introduced.

[73]Dies Iræ, st. 3.

[74]"Nullum numen abest, si sit Prudentia."—Juvenal,Sat.X. 365.

[75]See Commonwealth of Pennsylvaniav.Young. 1 Kent's Com., 431.

[76]United Statesv.Ames, 1 Woodbury and Minot, 80.

[77]Ibid., 83.

[78]Dobbinsv.Commissioners of Erie Co., 16 Peters, 447.

[79]Providence Bankv.Billings and Pittman, 4 Peters, 563.

[80]Providence Bankv.Billings and Pittman, 4 Peters, 561.

[81]McCullochv.The State of Maryland, 4 Wheaton, 316.

[82]Exec. Doc., 30th Cong. 2d Sess., H.R. No. 12, Table 6, p. 255.

[83]Exec. Doc., 30th Cong. 2d Sess., H.R. No. 12, Table 2, p. 210.

[84]Ibid., Table 6, p. 255.

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