“The matter in dispute, in this case, is the freedom of the petitioners. The judgment of the court below is against their claim to freedom; the matter in dispute is, therefore, to the plaintiffs in error, the value of their freedom,and this is not susceptible of a pecuniary valuation. Had the judgment been in favor of the petitioners, and the writ of error brought by the party claiming to be the owner, the value of the slaves aspropertywould have been the matter in dispute, and affidavits might be admitted to ascertain such value. But affidavits estimating the value of freedom are entirely inadmissible, and no doubt is entertained of the jurisdiction of the court.”
“The matter in dispute, in this case, is the freedom of the petitioners. The judgment of the court below is against their claim to freedom; the matter in dispute is, therefore, to the plaintiffs in error, the value of their freedom,and this is not susceptible of a pecuniary valuation. Had the judgment been in favor of the petitioners, and the writ of error brought by the party claiming to be the owner, the value of the slaves aspropertywould have been the matter in dispute, and affidavits might be admitted to ascertain such value. But affidavits estimating the value of freedom are entirely inadmissible, and no doubt is entertained of the jurisdiction of the court.”
Suppose there are two claimants for the same alleged fugitive? If his market value exceeds twenty dollars, both of them have a clear right to the trial by jury. And can it be that a man’s right to his ownfreedomcannot be tried by a jury, when, if two men dispute about hisvalue, each may claim the jury trial, and cannot be denied?
On the three points, then, 1. What constitutes a common law or “legal right;” 2. What constitutes “a suit at common law,” and 3. What constitutes “a value which exceeds twenty dollars,”—namely; the personal liberty of any human being, though he be an infant just born, or a drivelling idiot, or he be stretched upon his death bed with only another hour to breathe,—I trust I have made out a case which entitles a party to trial by jury under the constitution of the United States.
I might here rest the argument, feeling that, from authority and from reason, from the old and time-honored principles of the common law, as well as from those interpretations of the constitution which have been given by the supreme court, my conclusions are impregnable. But I proceed to notice some of the points taken on the other side; and if I shall occasionallyadvert to positions that are obviously too shallow and fallacious for discussion, it is only because I wish to omit nothing which any one may think of importance.
It is alleged that the whole force of the above argument, otherwise conclusive, is annulled, because a slave is no party to the constitution, is not under its protecting shield any more than a horse or an ox, and therefore, any provisions, however strong, securing the jury trial, are inapplicable to him. A slave, it is said, is not one of the “people” by whom and for whom the constitution was formed. He is an outlaw, and an outcast. He has no inherent or inalienable rightsas a man. What he has, he hasex gratia, by the good will of those who own him, body and soul, and who are graciously pleased to forego some of their legal rights from generosity in themselves, and not from justice to him.
Now, as it seems to me, a most obvious principle confutes this argument utterly. By the laws of the free states, we know no such being as a slave. Our courts, in their functions as state courts, do not understand the meaning of the wordslave. To talk to them in that capacity about a slave or slavery, is talking to them in an unknown tongue. In the eye of the legislators of the free states, and in the eye of the courts of the free states, so far as their domestic polity is concerned, there can be no such creature as a slave. The constitution of every free state in this Union must be first altered, before any such being as a slave, or any such condition as slavery, can be recognized under them, as state authorities.
So the constitution of the United States creates no slaves, and can create none. Nor has it power to establish the condition of slavery any where. And I hold further, that if the government of the UnitedStates, by escheat, by purchase, by execution against a debtor, or in any other way, should become possessed of a slave, that moment he would be free. The government of the United States can neither hold a slave, nor make valid title to a slave by sale. It is a government whose powers consist of the grants that have been made to it; and nowhere, by no competent party, has any such grant ever been made.
The relation of the government of the United States to slavery consists in this, and in this alone: that when this government was created, slavery existed in a portion of the states; and by certain provisions in the constitution, the existence of this slavery was recognized, and certain rights and duties in relation to it were respectively acknowledged and assumed. But the government of the United States has no more power to turn a freemen in a free state into a slave than it has to turn a slave in a slave state into a freeman.
The officers of the state government being sworn to support the constitution of the United States, the governments of the free states are implicated indirectly in the matter of slavery, as the government of the United States is directly, and not otherwise.
Both by the constitution of the United States, then, and by the constitutions of all the free states, every man found within the limits of a free state isprima facieFREE. No matter what complexion he may wear, or what language he may speak, he is a free manUNTILsome other civil condition is proved upon him, or until he forfeits his freedom by crime. Every man, therefore, in any one of the free states of this Union, has a right to stand upon this legal presumption, and to claim all the privileges and immunities that grow out of ituntilhis presumed freedom is wrested from him by legal proof. It is the most cruel of sophisms to say, that because a man isclaimedas a slave, he is not underthe protection of the constitution, and thento prescribe a base mode of trial for him, by which he can be proved the thing he is claimed for. On the subject of freedom or slavery, we of the free states know of but one class of men living among us. That class is free. There is no such class as slaves known to our laws. Nor is there any intermediate class, who may be presumed to be slaves on account of their color, or who may be proved to be slaves by less evidence, or by an inferior kind of evidence, because of color.
No axiom is more universal or indisputable, than that the right to freedom in a free state, and the right to be held and treated by the courts as a freeman, has no relation to complexion. If, then, these rights have no relation to complexion,allwhite men may be arbitrarily presumed to be slaves, and be deprived of the form of trial, secured to them by the constitution, just as well as any colored man can be. The former may just as well be proved to be slaves, on dangerous, or on inferior, or on insufficient evidence, as the latter. No; the liberty to which every man, of whatever color, in a free state, isprima facieentitled, invests him with its protection, and this investiture cannot be stripped from him but by the judgment of his peers or the law of the land,—which, as we have before seen, means trial by jury.
Any other interpretation assumes this as a postulate, namely, that there is a higher or surer kind of trial applicable to freemen, and a lower or inferior mode of proceeding applicable to slaves. And the inhuman inference from this assumption is, that any man against whom a ten-dollar commissioner may issue a warrant as a possible slave, shall forthwith be subjected to the slave’s mode of trial, and be utterly deprived of the freeman’s mode of trial; or, at the best, that he shall be sent away a thousand miles, into another jurisdiction, there only to have the slave’s mode of trial. Accordingto this form of proceeding, the first thing which the commissioner says to his victim is, “Being a slave, you must be tried in a summary manner.” “But I am not a slave,” asseverates the respondent, “and I claim to be tried by my peers under the guaranties of the constitution.” “You are no party to the constitution,” rejoins the commissioner, “and, therefore, not entitled to its shelter. The constitution was made by the people, and for the people, and you are not of them.” Then says the victim, “If I could have the trial due to a freeman, I could prove myself a freeman; but under the form of trial awarded to a slave, I may be adjudged a slave; so that my fate is made to depend not upon my rights, but upon your form of proceeding.” “Even if so,” retorts the mercenary minister of the law, “it is but an imperfection incident to human institutions. Is not one man’s property sometimes taken to pay another man’s debts? and is not one man sometimes executed for another man’s murder? Why, then, should the courts of justice be arraigned, if a freeman, instead of a slave, is sometimes consigned to bondage?”
Sir, the unmistakable distinction lies here; that if there be any difference between the kind or degree of proof applicable to a freeman and that applicable to a slave, then, in a free state, you must first prove a man to be a slave by freeman’s proof. If cast on such proof, then, and not till then, does he become the subject of slave proof. Any thing else under the form of justice is a mockery of justice. No man will say that the “claim” imposes any disability upon the person claimed, or takes away from him any rights. A man who has a presumptive right to his liberty, has a perfect right to all the means to prove it. The “claim” imposes no obligation to deliver up, but the proof under the claim; and this proof in a case of “life, liberty, or property,” is to be judged of by a jury.The real question is,whois to be delivered up, a slave or a freeman? If the person arrested is prejudged to be a slave, then there is no need of a trial at all. If he isprima faciea freeman, then he is entitled to the most perfect mode of trial.
By the theory, I believe, of all the slave states but one, every person of maternal African descent is presumed to be a slave. As such, his civil condition is fixed, special tribunals are constituted to try him, and he is subjected to rules of evidence unknown to the common law and never applied to freemen. Now it would be but the same kind of legal absurdity and preposterousness, for the presumptive slave in a slave state, to demand the form of trial, the tribunal, and the evidence, which there appertain to a freeman, as it is to subject the presumptive freeman in a free state, to the form of trial, the tribunal, and the evidence, which appertain to a slave.
The iniquity of the law is, that it enables a perjured or fictitious slave owner, on proofs most easily fabricated, to seize any individual in a free state, and toprejudgehim to be a slave, by the very form of trial which this law authorizes. On the contrary, nothing can be more clear, than that the civil condition orstatusof every man found in a free state is that of a free man. His living under a free constitution, without any thing more, invests himprima faciewith this character. Until divested of this character, he continues presumptively a free man. While such, he is entitled to every security which the constitution gives to a free man. How then can he be subjected to a trial which reverses the whole law of presumption in favor of freedom, and which presumes that he is a slave to begin with? This is not only anticipating the judgment at the commencement of the proceedings, but it is anticipating the worst judgment that can be passed; and, by anticipating, procuring it; as prophecies often procure their own fulfilment.
I put this case, and I challenge an answer that shall refute or admit my conclusion: If any one man in a free state can be seized and suddenly transported into bondage under this law,then every other man also can be; and there is not a single person left in any free state who has a right to a trial by jury to save him from slavery. I am not now speaking of the special danger to each particular individual, but of the principle that embraces us all. Under the most oppressive of tyrannies there are persons who are not in danger. But under such a law as this, who can tell what may happen to men arrested away from home, to unprotected women, and to helpless children? Do you say that a public sentiment and a public watchfulness exist, which would protect the whites, the female, and the child? I reply, that we possess our right to protection under the constitution and laws, and are not to be turned over to public sentiment or public watchfulness in order to enjoy it.
Suppose an analogous law to be passed respecting debtor and creditor. Suppose a law to provide some new mode of proceeding by which the indebtedness of a defendant should be so far presumed as to subject him to an inferior kind of defence, or to transfer his case to another kind of tribunal, as from jurors to arbitrators, to be selected by the plaintiff himself. Who is there, though through all his life he had fulfilled the apostolic injunction to “owe no man any thing,” that might not be cast in an action that would strip him of all his fortune?
The law punishes murder by death. Could it know with omniscient certainty, beforehand,who is a murderer, it might take from him the trial by jury without offence to the eternal principles of justice. It is because the law cannot know with infallible certainty, beforehand, who is a murderer, that it provides the trial by jury to determine the question. Just so,because human tribunals cannot know with certainty who is a slave and who is free, the constitution gives the trial by jury, before any man in a free state shall be deprived of his freedom. And the argument, that if a man be wrongfully consigned to bondage he may be afterwards restored to freedom, is as audacious and as tyrannical as to say that an innocent man may be hanged and sent into another world as a felon, because sometimes the dead have been restored to life.
It is no answer to this view of the case, to say that all processes, whether civil or criminal, are initiated on the supposition that a pecuniary liability exists, or that a wrong has been done. Every body knows that no presumption of this kind follows the plaintiff, or the government, into court. When there, in the presence of the law, the plaintiff must establish his claim affirmatively. The possible debtor is no longer a debtor. So the government must prove the guilt of the man it has arraigned. The possible criminal is no longer a criminal. In the eye of the law, he is as innocent as the unborn child. When they claim the trial by jury, neither plaintiff nor prosecutor can say, You are not entitled to this form of trial, because youarepresumptively a debtor, or presumptively an offender. Yet this is precisely, andin totidem verbis, what the pro-slavery argument says to the respondent when he is brought before the commissioner and put in peril of his freedom. In both the cases supposed, such a doctrine would take away a man’s rights in the most odious manner, by taking away the legitimate and constitutional means of defending them.
For the purpose of determining by suit or by prosecution whether a man is a debtor or is an offender, a suit or a prosecution may be commenced against him, but never for the purpose of raising a presumption that he is either the one or the other, or to deprive him ofany evidence to which an unindebted or an innocent man is entitled, or to change the tribunal which is to try the question of indebtedness or of guilt. If attachment on mesne process, if even indictment by the grand inquest for the county, does not deprive a man of his right to a trial by jury, how can so great a natural wrong be constitutionally inflicted by the warrant of a commissioner?
The presumption that a colored man is a free man in the free states, is just as strong as that a man of pure, unmixed, Anglo-Saxon blood is a free man in the slave states; and would they tolerate the doctrine for a moment that any perfectly pure-blooded white person could be transformed into a slave, and as such sent from his own state into another, under this law? Nay more; would any slave claimant at the south be allowed to gointo a slave state, and seize upon a pretended fugitive whom another man might claim to own, under such a process as is now sufficient,in a free state, to authorize the taking and carrying away of the same individual?
But to the argument, that the constitution and the law of 1850 apply only to slaves, and that because slaves are not parties to the constitution they are not under its protection, and so not included in the provision for jury trial, there is another answer perfectly fatal. It is this: the constitution does not enumerate the various classes of criminals who shall be entitled to trial by jury; but with the exception of cases of impeachment, and cases in the military and naval service, it expressly declares as follows: “The trial of all crimes shall be by jury.” And also, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury,” &c. The right, therefore, is not made to depend upon theclasses of personson trial, but upon the nature of the charge brought against them. The constitution doesnot say that freemen shall be tried in one way and slaves in another; but its language is, “all crimes,” and “all criminal prosecutions;” so that it embraces every personwho is prosecuted, whether free or slave, citizen or foreigner, Jew or Gentile. If an Englishman or a Frenchman were to be tried here for murder, how would the whole world deride the suggestion that he should not have a jury trial because he is a foreigner,—because he is not one of the “people,” and so not a party to the constitution!
So the constitution does not say, in suits between merchant and merchant, or between landlord and tenant, and so forth, “the right of trial by jury shall be preserved;” but it says, “In suits at common law, where the value in controversy shall exceed twenty dollars.” The right is not determined by the character of the litigants, but by the nature of the action. The constitution does not care who the parties are,—man, woman, bond or free,—it is all the same. As soon as parties appear upon the record, the right to trial by jury attaches. Thesuit, and not thecivil conditionof the litigants who instituted or who defend it, tests and determines the jury question.
In the case ofLeevs.Lee, before cited, the law allowed an appeal only in case the sum in controversy should amount to one thousand dollars. The appellant was of African descent, and therefore, within that jurisdiction, presumptively a slave; not presumptively a freeman, as every man is in a free state; and, if a slave, then he could own no property; for, by the cruel law of slavery, every master may rob his slave legally of all that he earns, or finds, or otherwise receives. Yet the supreme court sustained the appeal. Why was not so astute an exception as this then taken?—an exception which, if they have a bar in Pandemonium, would have done honor to one of its counsellors. Why was it not said that a slave was no party to thelaw, and therefore not entitled to its benefits? No reason can be assigned why a slave is not as much under the protection of a constitution made for the “people,” as under the protection of a law made for the “people.” Yet here, even in the case of a presumptive slave, a right was acknowledged, which some freemen, in free states, deny to presumptive freemen.
I have here been combating the argument, that because the Fugitive Slave law is aimed at slaves, no freeman has any ground of complaint against it, even though he should be converted into a chattel under it. He must console himself under the doom of interminable bondage, with the patriotic and pious reflection that he is only suffering, as an exception, to prove the general excellence of the law; and he must leave this consolation also to his enslaved children. For, in his case, it is said that eternal slavery is only one of those exceptions in the working of the law which proves the rule of its general excellence. This argument I hold to be eminently sophistical and cruelly oppressive. But if any one believes it to be a sound argument, then I hold him to all fair deductions resulting from it,—of which the following is clearly one:—
On the same ground on which Congress passes a law for escaped slaves, let every free state pass a law for resident freemen. The presumption in every free state being, that all men within its borders are free, let every such state give the trial by jury, in all cases in which personal liberty is involved, to every one who shall ask for it, and who has not once had it in a litigation with the same party, on the same subject-matter. According to the argument I have been considering, no slaveholder can complain of such a law; for, by its very terms, it applies only to freemen. The law of Congress applying only to slaves, and the supposed state law applying only to freemen, there is noconflict between them. And if, by accident or mistake, any real slave should take shelter under such a state law, and should escape a life of horrible bondage, it will be only one of those mistakes which may arise under the purest administration of justice. It will answer quite as well as its counterpart case, to stand as one of those exceptions in the working of a rule which prove its general excellence. If the occasional subjection of a freeman instead of a slave, to all the horrors of bondage, constitutes no valid objection to the United States law, then, surely, the occasional enfranchisement of a slave from a bondage that was always unjust and cruel, should constitute no objection to the law of the free state. If this Fugitive Slave law continues for a single year, I hope every free state will pass a law inflicting condign punishment upon every man who directly or indirectly assists in sending any man into southern bondage, unless he can prove before a jury that the man so sent was a slave.
So far, I have considered the question, whether a fair interpretation of the constitution does not secure the jury trial in every free state, to an alleged fugitive, and empower him to demand it as a matter of right.
But this is a strange question to discuss in a republican government. The proper question is, not whether the constitution expresslydemandsthe jury trial, but whether it will, by any fair implication,allowit. The only point which a republican judge or citizen can, with decency, make on this subject is, Does the constitution forbid, prohibit, deny, such trial?—for, if it does not, then the jury should be granted of course. In a free country, under a free government, where the idea has become traditional, where the doctrine has become a household doctrine, that the trial by jury is the palladium of our civil and religious liberties, is it not amazing that we should find men who seem eager to avoid this form of trial, rather thanzealous to grasp it? It is the saddest of spectacles; it argues the most mournful degeneracy, to see the children at this early day, from grovelling notions of ambition and of wealth, abandoning those noble principles of freedom for which their fathers so lately shed their blood. Wherever the constitution allows the trial by jury, in a matter of human liberty, in Heaven’s name let us have it. Let Russia and Austria curtail and deny this privilege of freemen; let the tyrant, and the tyrant’s minions among ourselves, explore the musty records of darker times, to find precedents against it; let them strive, by their shallow sophistries and plausibilities, to gloss over this ravishing of liberty and life from beings created in the image of God; but let every true republican, whenever, in the disposal of these momentous interests, the constitution will, by fair construction, sanction it, cling to the trial by jury, as to the only plank that will save him,—ay, the only one that will save the human race,—from being again ingulfed in the vortex of despotism. The enemy of the trial by jury, wherever human liberty is concerned, is the enemy of human liberty and of the human race. The friends of a repeal of this law, then, need not discuss the question whether the constitution does expressly confer the right of trial by jury upon the alleged fugitive, for it is enough for them if the constitution does not take it away.
It is worthy of remark, that in both of the bankrupt laws passed by the United States, it was expressly provided, that when the commissioners should declare any person to be a bankrupt, he should have the right to a trial by jury to annul their decision. Thus, when the law proposed, not to appropriate a man’s property, but merely to enable his creditors to receive it in payment of their debts, the jury trial was secured to him; but here, where the direct purpose is to strip a manof his liberty, and of his property in himself, the jury trial is denied.
This seems an appropriate place to consider the further irrelevant suggestion, sometimes obtruded, namely, that an alleged fugitive is not deprived of a trial by jury, because he may have it in the state to which he is carried.
Here the pro-slavery advocate admits, at least for argument’s sake, that the alleged fugitive has a right, at some time, and some where, to the jury trial. If so, then there are numerous and powerful reasons why this trial should be had in the state in which he is found, rather than in that to which he may be transported. I will advert to a few of these reasons.
1. Slaves are held to be personal property. Trover lies for their value where they have been unlawfully converted. Trespass is the remedy for an injury done to them. According to the laws of all the slave states, they are the subject of larceny. Suits to recover them, or to recover damages for an injury done to them, are personal actions; and in personal actions it is required, by all the precedents and all the analogies of the common law, that the action should be tried in the jurisdiction where the writ is served. By the common law, personal actions are transitory. They are to be brought where the defendant resides; or, at least, where the property which is claimed lies. In the case of an alleged slave, both the defendant and the property are whereheis found. According to the usages and principles of the common law, therefore, the trial should be there.
2. Before trial and judgment, the parties are like any other parties before the court, or they should be so. The claimant stands upon the merits of his claim; the respondent upon those of his defence. It may be inconvenient for a Texan claimant to prove his right to an alleged fugitive in Massachusetts; but it will beindefinitely more inconvenient for a citizen of Massachusetts to prove his freedom in Texas. If the trial is in Massachusetts, and the plaintiff prevails, he takes immediate possession of his slave, and is invested at once with all the rights which the rigors of the slave law so abundantly give. But if the trial is in Texas, whither the defendant has been forcibly exiled, and thereheprevails, who is to reimburse or recompense him for his intermediate bondage; for being dragged from his home; torn from wife, children, and friends; for being plunged, perhaps for years, into the hell of slavery itself, with all the untold agonies of an apprehended slavery for life?
What Judge Story says respecting the right of all persons who are accused of crime to be tried by a “jury of the state and district wherein the crime shall have been committed,” applies with full force to a trial for liberty. “The object of this clause,” says he, “is to secure the party accused frombeing dragged to trial in some distant state, away from his friends, and witnesses, and neighborhood.” “Besides this,” he continues, “a trial in a distant state or territory might subject the party to the most oppressive expenses, or perhaps even to the inability of procuring the proper witnesses to establish his innocence.” (3Com. 654.) For “innocence” readliberty, and the argument in behalf of the alleged criminal becomes applicable to the alleged fugitive. And why should the alleged fugitive be treated less mercifully than the alleged felon? The law is unspeakably rigorous in the case of an alleged fugitive, but softens into mercy over an alleged pirate or murderer.
If the trial, then, is where all the practice and principles of the common law indicate that it should be, no great or irreparable injury is done; no inconvenience even is suffered beyond that which is always suffered in enforcing a claim in a foreign and distant jurisdiction.But if a freemen is carried away, a grievous and intolerable wrong is done; a wound is inflicted which mortal medicaments cannot heal, nor the longest continued punishment of the malefactor ever expiate.
3. By transferring the trial to the place of the claimant’s domicile, an effective, and, as it seems to me, a most iniquitous advantage is given him, in regard to evidence, while the respondent is subjected to cruel disabilities. By the laws of all but one or two of the slave states, persons of African descent, whether slave or free, are declared incompetent witnesses against white men. The freeman, then, by being removed as a fugitive into a slave state, may lose his evidence, which, under such circumstances, is the loss of his liberty. This violation, therefore, of the principles of the common law, in regard to the place of trial, is, to him, of the most momentous consequence. It is not true, then, in any just sense, that the trial by jury is still “preserved” to the alleged fugitive, notwithstanding his removal to a slave state. The common law trial, as inclusive of the right to adduce common law evidence, is not “preserved.”
4. But not only is the evidence different, but, in some of the slave states,the law itself is different; so that one man may carry another by force into a jurisdiction where the law will account him a slave, when, had he been tried where he was found, the law would declare him free,—the facts in both cases being the same.
Take the law of Kentucky, for instance,—and I refer to this state because its slave code is of a milder type than that of most of the Southern States, its dreadful rigors being mitigated by an infusion of more humanity.
By the laws of Kentucky, a master may carry a slavein transitu, through a free state, or he may allow his slave to go temporarily into a free state, without aforfeiture of the legal right to hold him.Grahamvs.Strader & Gorman, 5 Ben. Munroe, 173, (1844;)Davisvs.Tingle et al., 8 Ben. Munroe, 545, (1848;)Collinsvs.America, 9 Ben. Munroe, 565, (1849;)Bushe’s Reps.vs.White, 3 Munroe, 104;Rankinvs.Lydia, 2 A. K. Marshall, 468, (1820.)
In Massachusetts certainly, and I suppose in most of the Northern States, all such cases would be decided in favor of the respondent.[20]
Now, what greater outrage can be inflicted upon a man than to seize, and bind, and carry him into a foreign jurisdiction, where not only is the evidence different, by which his rights may be proved, but where the law also is different, by which his rights are to be adjudicated. In Holland, the killing of a stork once was, if it be not now, punishable with death; because this bird devours the animals that would otherwise bore through and undermine its ocean-barring dikes. In a neighboring country, the killing of a stork may not be merely blameless, but praiseworthy. What an atrocity it would be to seize a man in the latter country, and carry him to Holland to be tried and executed for doing an act which, according to the law of the place where he had a right to be tried, may have been not only innocent, but laudable! I leave you, sir, to make the application.
5. But what must shock every man who possesses any just appreciation of the value of human liberty, or has any just perception of the principles on which it is founded, is, that under the Fugitive Slave law, the plaintiff gets possession and control not only of the chattel or article of property claimed, but of the defendant himself. He gets command, not only of the thing in litigation, but of the body and soul of the litigant. A Boston or New York merchant would considerit a grievous hardship, if a southern adventurer could go there and seize upon all his property, transport it to Mobile, or New Orleans, and compel the owner to follow it and try title to it, in the place of the captor’s domicile. Still more grievous would the hardship become, if, under the new jurisdiction, the defendant might be deprived of the evidence which, at home, would be decisive of his rights, or find himself controlled by adverse laws which he never had helped to frame. But what an extreme of barbarous tyranny would it be, if, beyond all these enormities, the southern plaintiff could seize him too,—the defendant himself,—the alleged debtor,—and grasp him in his own iron hand, obtaining supreme control over his body by force, and over his mind by fear; could command his powers of locomotion, so that he could go only where the will of his master would permit; could control his speech and his vision, so that he could consult with no counsel, and could see no friend but such as were in his master’s pay; and, to enforce his authority, could imprison him, and starve him, and scourge him, and mutilate him, if he but so much as uttered a whisper that he had a right to have a trial by his country, or opened his lips in prayer to God to break the fetters of his iniquitous bondage!
To tamper with the witnesses of the adverse party, or endeavor to suborn his counsel to violate their duty to their client, is not only an act of the grossest baseness, but would subject the offender to penal retribution. Yet what need would there ever be of corrupting witnesses or suborning counsel, if a party could get bodily possession and absolute control of his antagonist himself?
Does not every one see that, in ninety-nine cases in a hundred, a control over the defendant’s person and will would be a control over his case? His rights would be lost in his enforced disability to defend them.You might as well put out a man’s eyes, and then talk of his right in the common sunlight. In Baltimore, or Louisville, a kidnapped freeman might find an opportunity of self-redemption; but such a captive will never be carried to Baltimore or Louisville. He will be sent to some interior region, perhaps fifty miles from any court, or the residence of any counsel, where he may never have an opportunity to speak to a white man unless it be to a taskmaster, who is paid to guard and to silence him.
The authors of the Federalist deemed the principle of excluding an interested party from all power of deciding his own cause to be so important, that they laid down the following doctrine: “No man ought certainly to be a judge in his own cause, or in any cause, in respect to which he has the least interest or bias.” (No. 80.) Yet the only chance which the Fugitive Slave law allows to a freeman, when carried into bondage, is that which he may exercise while under the absolute control of his robber master.
But more than this: the law imposes no obligation upon the claimant to carry his victim to the state he is charged to have escaped from. A man charged to have escaped from Texas may be carried to Florida. Nay, he may not be carried to any state in this Union; but may be sent to Cuba or Brazil; beyond hope, and into the outer darkness of despair.
All the arguments which I have ever heard, or seen, on this point, gratuitouslyassume, that the persons reclaimed and transported will have an honest master, be surrounded by kind friends, and have a lawyer at hand whom they can consult with every day, and money in their pockets to fee him. Would such be the case of a kidnapped freeman? Would a wretch, vile enough to rob a man of his liberty, carry him five hundred or a thousand miles, and then go to a shire town during a session of the court, and give his pretended slave apurse of money with which to fee a lawyer for investigating his right to freedom? No! the man who knows, or suspects, that he has seized a freeman, or that his victim even believes himself to be a freeman, and will put the claimant to the trouble and expense of a trial, will plunge that freeman into the abyss of bondage, where no ray of hope may ever reach him, and where his voice will be hushed as in the silence of death.
Another objection to the Fugitive Slave law is, that it confers judicial power upon persons who are not judges. Here we are not left to inference or construction, but can stand on the plain words of the constitution. The third article declares,—
“The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.”—Art.III. § 1.
“The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.”—Art.III. § 1.
Here I hold it to be clear beyond dispute, that the “judges” mentioned in the second sentence of the above section are the members of the “supreme court” and “inferior courts” mentioned in the first section, and no other. If so, then there can be no doubt about the tenure of their office, and the mode of their appointment, compensation, and removal.
By sec. 2, of Art. II., the President “shall nominate, and by and with the advice and consent of the Senate shall appoint,” “judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.”
The appointment ofnojudge ofanycourt is “otherwise provided for in the constitution;” and thereforethe appointment ofallthe judges in whom “the judicial power of the United States is vested,” belongs by the constitution to the President and Senate; and this “judicial power” cannot be delegated to, nor exercised by, any persons not so appointed.
The courts may appoint “inferior officers,” such as clerks, criers, or masters in chancery; but these are not “judges;” nor would any one of them singly, nor any number of them associated together, constitute a “court,” within the meaning of the first section of the third article. Were such the case, thentheymight have power to appoint “inferior officers,” and so on, by sub-delegation, indefinitely.
The constitution also defines what it means by “judicial power.” It says, “The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States,” &c.
Now, my objection is, that the Fugitive Slave law requires the creation of a large body of officers who are not “judges,” but whom it purports to invest with “judicial powers.”
They are not “judges,” because they are not nominated by the President and confirmed by the Senate, as all “judges” must be.
They are not “judges” again, because, if they were, they must hold their offices “during good behavior.” But the commissioners may be unmade on the day they are made. “Judges” can be removed only by conviction, on impeachment. Commissioners may be removed by the court that appointed them. Not the President, nor the Senate, nor both together, can remove a judge, unless by the initiatory and concurrent action of the House of Representatives. An “inferior court” can eject a commissioner without notice.
Even if Congress had declared, by express words, that the commissioners appointed by the circuit and district courts should be taken and held to be “judges,”it would not make them so; for Congress cannot delegate any power to judges to appoint judges, nor to courts to make courts. If Congress could not do this by express enactment, how can it do so by implication?
Commissioners are not “judges,” also, because no person can be a “judge” who is not entitled, “at stated times, to receive for his services a compensation which shall not be diminished during his continuance in office.”
This provision necessitates the conclusion that all “judges” must be entitled to salaries payable periodically. These salaries are in no case to depend upon theamountor thequalityof their labors,—far less, if possible, upon their deciding the cases that are brought before them for the plaintiff or for the defendant. One “judge” may have an enviable reputation for talent and integrity, and thus attract suitors to his court. Another may be as corrupt as Lord Jeffries, and repel all honest litigants from him. But, in either case, he has a right to a compensation which shall not be diminished during his continuance in office. Each year gives him a definite, unchanged sum of money.
But the commissioner is paid by fees, and the amount of his fees depends partly upon the number of cases he decides, and partly also upon the party in whose favor he decides. If he decides that a man is free, he receives five dollars. If he decides that he is a slave, he receives ten. If the commissioner is acceptable to slave hunters, suitors multiply. If obnoxious to them, his docket is bare of a case. He is entitled to his compensation, not “at stated times,” but on the determination of each case. His compensation may be diminished, or it may cease altogether, during his continuance in office. Each year does not give him any definite, unchanged sum of money.
The “judge” must be paid by the government, andis independent of all the parties before his court. The commissioner is never to be paid by the government, but is wholly dependent for his fees upon the claimant whose case he tries. The government guaranties the payment of the “judge,” but it can never inquire or know whether the commissioner be paid or not.
By the sixth article of the constitution, all “judicial officers” must make oath or affirmation that they will support the constitution. But there is no law requiring these commissioners to take an oath; and as a matter of practice, in some parts of the country at least, it is known that they take no such oath.
Now, by the act, a portion of the “judicial power” of the United States, thewholeof which is, by the constitution, vested in one “supreme court,” and in “inferior courts,” is given to the commissioners. The fourth section says they “shall have concurrentjurisdictionwith the judges of the circuit and district courts of the United States.” If the power of these courts, in the premises, is judicial, then the power of the commissioners, being the same, is judicial.
The attorney-general of the United States, in a written opinion, given by command of the President, declares that this power, so given to the commissioners, is judicial. The following are his words:—
“These officers, [the commissioners,] and each of them, have judicial power, and jurisdiction to hear, examine, and decide the case.”“The certificate to be granted to the owner is to be regarded as the act and judgment of a judicial tribunal having competent jurisdiction.”“Congress has constituted a tribunal with exclusive jurisdiction to determine summarily, and without appeal, who are fugitives from service. The judgment of the tribunal created by this act is conclusive upon all tribunals.”
“These officers, [the commissioners,] and each of them, have judicial power, and jurisdiction to hear, examine, and decide the case.”
“The certificate to be granted to the owner is to be regarded as the act and judgment of a judicial tribunal having competent jurisdiction.”
“Congress has constituted a tribunal with exclusive jurisdiction to determine summarily, and without appeal, who are fugitives from service. The judgment of the tribunal created by this act is conclusive upon all tribunals.”
Such is the opinion of the attorney-general of theUnited States, given upon the precise point, by order of the President of the United States.
But the point needed no authority to sustain it. It results inevitably from the very nature of the power conferred by the law. The decision of the commissioner is to befinalandconclusive, and the subject-matter of the decision is liberty and property. The case cannot be reheard or reëxamined by any judge, or by any court, of any state, or of the United States. The decision actsin remandin personam. It delivers the property to the claimant, and puts the body of the defendant into his custody. From that moment, if the law has any validity, the defendant is the slave of the plaintiff, by force of a “judicial” decision. The plaintiff, thenceforth, may control his actions, his words, his food, his sleep. If he chooses to exercise his authority in such a way, he can order his victim to carry him home on his back, and make him bear the loathsome burden of his person as well as of his will. Now, to say that the power which effects these results is not a judicial power, is to do violence to language, and to commit a fraud upon the inherent nature of ideas. In no case known to the common law, or indeed to any other law, is a plaintiff invested withfullrights, except afterfinaljudgment.
If, then, this power is a “judicial power,” the constitution peremptorily forbids that it should be vested any where but in a “court,” whose “judges” are nominated, confirmed, sworn, hold office, are paid, and are removable, according to its requirements. Look at the constitutional distribution of powers. By the first article, all legislative power “shall be vested in a Congress.” By the second article, the “executive power shall be vested in a President.” And by the third article, “the judicial power shall be vested” in the courts. And it was just as competent for Congress to invest “commissioners” with supreme “executive” or“legislative” power, as to vest them with “judicial” power.
If, by good fortune, or by miraculous interposition, a captured freeman should afterwards obtain a hearing in a court of the state to which he had been carried, such hearing would, in no sense, be in the nature of a review of the former case, either by appeal, writ of error, mandamus, or certiorari. It would be by the institution ofanothersuit, underanothergovernment. The relation of the parties would be reversed. The respondent who was kidnapped must be plaintiff, the plaintiff kidnapper, or some one claiming under him, must be defendant. Were the variouspossessorywrits known to the English common law any the less “suits at common law”? or were the courts that tried them any the lessjudicialtribunals, because awrit of rightcould be afterwards brought, in which the previous judgments could not be pleaded in bar, and would be neither estoppel nor proof of title?
But to avoid the force of this, it has been said, that the proceedings before the commissioner do not constitute a “case,” within the meaning of the second section of the third article, which extends the “judicial power” of the United States to all “cases” in law and equity. Instead of being a “case,” it is said to be only a summary inquiry, designed to operate as a condition for executive action, in order to accomplish a special and limited object; like the inquiry, who are rightful claimants of money held by the government, under a treaty, and how much belongs to each one. It is also said, that if a construction so literal is to be put upon the words “judicial power,” then no master in chancery could act in behalf of the courts in equity cases; no commissioner of bankruptcy could be appointed under a bankrupt law, &c.
In answer to the first position, that the proceedings for the reclamation of fugitive slaves do not constitute“a case,” we have the most explicit declaration of the supreme court in morecasesthan one. In Prigg’s case, 16 Peters, 616, the court say,—