“It is plain, then, that while a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person; and inasmuch as the right is a right of property capable of being recognized, and asserted by proceedings before a court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy between the parties, and aCASE, arising under the constitution of the United States, within the express delegation ofJUDICIAL POWERgiven by that instrument.”“ACASEin law or equity consists of the right of the one party as well as of the other, and may truly be said to arise under the constitution, or a law of the United States,whenever its correct decision dependsON THE CONSTRUCTION OF EITHER.”—Cohensvs.Virginia, 6 Wheat. 379, (5 Cond. Rep. 101.)
“It is plain, then, that while a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person; and inasmuch as the right is a right of property capable of being recognized, and asserted by proceedings before a court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy between the parties, and aCASE, arising under the constitution of the United States, within the express delegation ofJUDICIAL POWERgiven by that instrument.”
“ACASEin law or equity consists of the right of the one party as well as of the other, and may truly be said to arise under the constitution, or a law of the United States,whenever its correct decision dependsON THE CONSTRUCTION OF EITHER.”—Cohensvs.Virginia, 6 Wheat. 379, (5 Cond. Rep. 101.)
Indeed, almost every page of the opinion of the court, inCohensvs.Virginia, may be referred to, to show that they used the word “case” in a sense that embraces the proceedings for the reclamation of a fugitive slave. If so, then any tribunal, having jurisdiction over such a “case,” is vested with a part of the “judicial” power of the United States.
In defining the word “case,” as it occurs in this article, Judge Story says,—
“It is clear that the judicial department is authorized to exercise jurisdiction to the full extent of the constitution, laws, and treaties of the United States,whenever any question respecting them shall assume such a form that the judicial power is capable of acting upon it. When it has assumed such a form, it then becomes acase”—3Comm.507.“A case, then, in the sense of this clause of the constitution, arises, when some subject touching the constitution, laws, or treaties of the United States, is submitted to the courts by a party who asserts his rights in the form prescribed by law.”—Ibid.
“It is clear that the judicial department is authorized to exercise jurisdiction to the full extent of the constitution, laws, and treaties of the United States,whenever any question respecting them shall assume such a form that the judicial power is capable of acting upon it. When it has assumed such a form, it then becomes acase”—3Comm.507.
“A case, then, in the sense of this clause of the constitution, arises, when some subject touching the constitution, laws, or treaties of the United States, is submitted to the courts by a party who asserts his rights in the form prescribed by law.”—Ibid.
And, as if these definitions were not clear enough, the learned judge adds,—
“Cases arising under thelawsof the United States are such as grow out of thelegislationof Congress, within the scope of their constitutional authority,whether they constitute the right, or privilege, or claim, or protection, or defence of the party, in whole or in part, by whom they are asserted.”—3Comm.508.
“Cases arising under thelawsof the United States are such as grow out of thelegislationof Congress, within the scope of their constitutional authority,whether they constitute the right, or privilege, or claim, or protection, or defence of the party, in whole or in part, by whom they are asserted.”—3Comm.508.
It seems clear, then, that the proceedings authorized by the Fugitive Slave law cannot be taken out of the meaning of the word “cases,” (cases in law and equity,) in the third article.
There is another clause in the third article, which embraces these proceedings with equal clearness and certainty. “The judicial power shall extend to controversies” “between a state and citizens of another state.” I suppose it will not be denied that a slave state may itself own slaves. They may escheat to it, be taken in execution for debt, &c. Now, a free citizen of Massachusetts may enter the port of Charleston as a mariner, be seized, imprisoned, and then sold into slavery for non-payment of jail fees. The State of South Carolina may purchase him. He may escape and return to Massachusetts. South Carolina may then claim him under this Fugitive Slave law.
In such a condition of things, a “controversy” will exist between “a state and a citizen of another state.” The commissioner can take jurisdiction of that case as well as of any other. And who will be bold enough to say that a trial and judgment by him, delivering up the respondent to bondage, would not be the exercise of “judicial power” in a controversy between “a state and a citizen of another state”?
The argument, that if the commissioner under the Fugitive Slave law exercises “judicial power,” then masters in chancery, commissioners of bankruptcy, &c., exercise it, is answered by a word.
Masters in chancery assist the court in preparing questions for decision, but they decide nothing. Every act of theirs may be reheard and reëxamined by the court at the pleasure of either party. They enter up no judgment; they issue no execution. They may express the opinion that the plaintiff or defendant is entitled to recover a certain sum of money, or to hold the chattel in dispute; but neither of them can touch it. They are “judges” in no legitimate sense. They exercise no part of the “judicial power.” The court may call upon them to state an account between parties, as it calls upon a clerk to make up the record, or a servitor to bring a law book, or asks a friend to cast up the interest on a promissory note. Such are the functions of a master in chancery, whose acts have no legal validity until assented to by the parties or sanctioned by the court.
So with regard to commissioners of bankruptcy. Every act they were ever authorized to perform derived all its legal force from the consent of the parties, or from the verdict of a jury, before whom it had been contested, or from the judgment of the court,—as may be seen at a glance, by reference to the acts creating them.
As to the supposed “judicial power” exercised by commissioners, under a treaty to determine who are rightful claimants, and to how much each one is entitled, it is almost too obvious to remark, that as no citizen can bring “suit” against the government, the “judicial power” does not “extend” to such a case, and the suggestion is puerile.
A word more will close my remarks on this topic. We have seen that a decision of the commissioner adverse to the respondent delivers him over into absolute, unconditional slavery. But the prevalent opinion is, that a decision in the respondent’s favor is no bar to a subsequent trial of the same person on a new“claim.” It was actually held in Long’s case, in New York, where the claimant apprehended that the decision of the first commissioner would be against him, that he might abandon proceedings before that tribunal and resort to another. He did so, and prevailed. That is, the claimant may select, from among an indefinite number of irresponsible magistrates, the one whose ignorance or whose turpitude may promise the best chances of success. But if, from any cause, he should apprehend defeat, then, and before the final judgment is pronounced, he can withdraw his suit and commence anew before another magistrate, and so throw the dice of the law again and again, until, by the very doctrine of chances, he shall ultimately succeed. Such want of equity between the parties stamps this law as infamous,—for inequity is iniquity.
An argument in favor of the surrender of alleged fugitives from service under this law has been derived from the provision for the surrender of fugitives from justice. But the difference between the cases is world-wide. In regard to slaves, the constitution says,—“No personHELDto service,” &c.; but in regard to criminals, its language is, “A personCHARGED,” &c.
Now, who can avoid perceiving the difference between the legal force of the words “held” and “charged”? The obligor in a bond is “HELDand firmly bound.” The grantor conveys an estate “to have and toHOLD” to the grantee and his heirs and assigns forever. So a lessee is to “HOLD” for the term specified. A man isHELDto answer a charge, &c., &c. In all these cases the word “hold” implies a perfect obligation or certain liability. But a man is “CHARGED” with an offence when a grand jury has found an indictment against him, or when a competent person has made the requisite oath. It is not enough that a man bechargedto beheldto service. He must beprovedto beheld, or he remains free; the courtmust know that he is soheldbefore they are authorized to surrender him. And how, under our constitution, can the court know such facts as convert a presumptive freeman into a slave without a trial by jury?
Had the constitution said a fugitiveguiltyof murder, &c., shall be delivered up, could a man be delivered up untilprovedguilty of murder? Yet the wordguiltyis no stronger in reference to a fugitive from justice than is the wordheldin reference to a fugitive from service.
Another distinction between the cases is not less marked than the preceding. When the fugitive from justice isclaimed, he is claimed by astatefor having violated its law, and when he is delivered up he is delivered into the custody of the law. Legal process must have been commenced against him in the state from which he fled. He is returned, that the prosecution thus commenced may be completed. He is delivered from an officer of the law in one state to the officer of the law in another state. He is transferred, not to avoid a trial, but to have one. The original indictment orcharge, the arrest in a foreign state, and the delivery and transportation to the place of trial, are but separate parts of one legal proceeding. The shield of the law is continued over him. All the time and all the way, he has the solemn pledge of the government, that if not found guilty on the prosecutionthen pending, he shall be discharged.
But the alleged slave is claimed not by a state, but by an individual, and he is delivered up, not into the custody of the law, where his right might be adjudicated upon, but into private hands; not into the hands of a neutral or indifferent person even, but into the hands of a party interested to deprive him of all his rights, and who himself claims to be judge, jury, and all the witnesses, in determining what those rights are. If he be not a slave, then he is delivered into thehands of a man-stealer. The shield of the law is not continued over him; nay, the Fugitive Slave act expressly provides that, whatever his rights may be, yet, whilein transitu, the law shall not recognize them. The certificate given by the commissioner to the claimant is to prevent “all molestation of him by any process issued by the court, judge, magistrate, or other person whomsoever.” Under this practical interpretation of our constitution, which, as its own preamble declares, was formed to “establish justice, and secure the blessings of liberty,” it takes better care of felons than of freemen.
But there are other provisions of the constitution respecting the trial ofcriminals, which would control this provision respecting the delivery of fugitives from justice, even if there should be any doubts about its true construction. By the constitution as originally adopted, and by the fifth amendment, all crimes, (except in cases of impeachment, or in the land and naval forces,) are to be tried in the state and district where committed. This makes it impossible to try a fugitive from justice in the state to which he has fled. It is an express prohibition against trying him there. But no such prohibition exists, no analogous provision exists, respecting the trial of “suits at common law,” or the trial of “cases” or “controversies,” in which a man may be deprived of “life, liberty, or property.” These cases, therefore, not being taken out of the general provisions of the constitution for securing the rights of the citizen, are left within it, and hence must be tried by a jury in the place where the claim is made.
My next objection to this law is, that it attempts to suspend the writ ofhabeas corpus.
The constitution says, “The privilege of the writ ofhabeas corpusshall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” The Fugitive Slave law declares that the“certificate” given to the claimant, his agent or attorney, “shall prevent all molestation of said person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.” Now, as a writ ofhabeas corpusis a “process issued by a court or judge,” it follows, that, according to the terms of the Fugitive Slave law, the slave owner is not to be “molested” by that process. What, then, will constitute a “molestation” of him under this law? Would the service of a writ ofhabeas corpusupon him, and, in case of his refusal voluntarily to obey it, the seizure of his person, and the carrying of him bodily before the court, perhaps a hundred miles out of his way;—would the moral necessity of employing counsel, and being otherwise subjected to great expense, both of money and time;—would any or all of these impediments and privations amount to what this law denominates “molestation”? If they would, then the slave owner is exempted from them. And if so exempted from them, is not the privilege of the writ ofhabeas corpus“suspended,” as to his pretended slave? What else can a “suspension” of it mean?
But take the other alternative. Suppose the writ ofhabeas corpusto be issued, and a return of all the facts by which the supposed slave is held to be made. The very return brings the Fugitive Slave act before the court; and if the act is before the court, then, surely, the question is also before the court, whether it is constitutional or not. For, if unconstitutional, it is no law, and no justification of the restraint. Suppose the court to decide the act to be unconstitutional, and to discharge the prisoner. This surely would be a “molestation” of him, in the strongest sense of the word. To say the least of it, then, the law contains an insolent and audacious provision, forbidding the “courts, judges, magistrates, and all other persons whomsoever,” to do what it may be their sworn constitutionalduty to do,—that is, to inquire into the constitutionality of the law, and, if found to be unconstitutional, to disregard it.
I am aware of the astute reasoning of the present able attorney-general of the United States. He says, first, that the act does not suspend the writ ofhabeas corpus, because such suspension would be “a plain and palpable violation of the constitution, and no intention to commit such a violation of the constitution ought to be imputed” to Congress; and second, that if the certificate of the commissioner is shown “upon the application of the fugitive for a writ ofhabeas corpus, it prevents the issuing of the writ; if upon the return, it discharges the writ, and restores or maintains the custody.”
The first reason might be more briefly stated thus: it don’t because it don’t; or it don’t because it can’t.
The second is as little satisfactory as the first. If the facts are shown, it says, upon the fugitive’s application for a writ, no writ will issue; if shown upon the return of the writ, it will be abated. Is it not most clear that this assumes the very question in dispute, whether the law on which the certificate is founded be constitutional or not? The statement may be all very true, if the law be constitutional; but suppose the law to be unconstitutional, would not the statement be superlatively absurd? Yet whether the law be constitutional or not, is the very question to be determined.
Let me test the soundness of this logic by a supposed case. There is, at the present time, a set of politicians amongst us, who are so alarmed at agitation that each one of them is a kind of Peter the Hermit, getting up a crusade to prevent it. Now, suppose Congress, “as a peace measure,” should pass a law authorizing the secretary of state to issue his warrant for the arrest and imprisonment, until the 4th day of March, 1853, or at least until after the next presidential nominations aremade, of any person who shall be guilty of agitatingon the wrong side of said peace measure, and should further declare that any jailer having such warrant from said secretary should be free from “all molestation by any process issued by any court, magistrate, or other person whomsoever.” Would it be a sound, judicial, and lawyer-like argument, in such a case, to say that Congress could not, and could not have intended to, violate the constitution, and therefore they had not violated it; and that if the warrant for commitment should appear upon the prisoner’s application for a writ ofhabeas corpus, it would prevent its issuing; if, upon its return, it would discharge it?
I think it impossible for any one to show that if the argument be good in the first case, it would not be good in the second; and good, indeed, in any case, however outrageously violating the constitution.
Again: suppose the 18th of September last, when the Fugitive Slave bill was approved, to have been a time “of rebellion or invasion,” when the public safety required the suspension of this writ, would not such words as end the sixth section of the act be sufficient in law to suspend it? The attorney-general seems to rely upon the fact that the Fugitive Slave law does not mention thehabeas corpus. He cannot surely mean to say that the privilege of this writ could not be suspended, unless by name. Even slavery is not mentioned in the constitutionby name. Suppose Congress, in a time of rebellion or invasion, to say, in regard to any class of cases which it might choose to specify, that if one person shall hold another under executive warrant, such warrant “shall prevent all molestation of said person or persons by any process issued by any court, judge, magistrate, or other person whomsoever;” could any man deny that such words would have ample force to suspend the privilege of this sacred and time-hallowed writ?
No! Heaven, and not the thirty-first Congress, be praised for it! Though this infamous Fugitive lawcould notsuspend thehabeas corpus, yet its words are adequate to do so. They purport to put the professional slave-hunter, as it regards the privilege from arrest, or “molestation,” on the footing of a member of Congress; and it would not have gone one iota further, in point of principle, had they made his person inviolable while going to seize his prey, and when returning with it.
If the argument of the attorney-general be sound, then the whole “privilege of the writ ofhabeas corpus,” under any corrupt law that any corrupt Congress may pass, will consist in the privilege of applying to a court for the writ, and being refused; or in suing out the writ, and having it quashed.
By the principles of the English law, the privilege of thehabeas corpusattaches to all, whether bond or free. The wordsliber homo, says Lord Coke, extend to every one of the king’s subjects, “be he ecclesiastical or temporal, free orbond, man or woman, old or young, or be he outlawed, excommunicated, or any other, without exception.”—2Inst.55.
I now proceed to lay open for the abhorrence of mankind other deformities of this most odious law. In opposing a law, a distinction is to be made between the courts and the people; between the bench and the ballot-box. The courts can hear but one objection to a law. It may be impolitic, unrighteous, atrocious; but if it be constitutional they must sustain it. But before the tribunal of the people, a law may be impeached for any attribute of cruelty, oppression, or meanness. I denounce the Fugitive Slave law for all these qualities. In its scornful rejection of all those common-law principles of evidence which have been ratified by the wisdom of ages; in the “summary” and piratical haste of its proceedings, and in the indelibleblood with which its judgments are recorded, I believe it has not a parallel in the modern code of any civilized people.
Should the courts, hampered by previous decisions, and habituated to the spectacle and the support of a cruel institution, pronounce this law to be constitutional, such a judgment would give new force to every reason why the people should demand its modification or repeal. It is not enough that it should be declared void by the courts as against the fundamental law of the land; it deserves to be branded by the people as abhorrent to humanity, to civilization, and to the gospel of Jesus Christ.
Look at its provisions in regard to evidence. The proof of three facts dooms the victim: first, that the person named in the warrant owes the claimant service; second, that he has escaped; and, third, identity.
Now, according to the law, all these facts may be proved in the absence of the party to be ruined by them. The whole case may be established by evidence taken behind the victim’s back, without notice to him, without knowledge, or possibility of knowledge, on his part. A freeman may be suddenly arrested, and dragged into court, and on certain papers being read against him, which he never saw nor heard of before, he may be ordered into the custody of officers, and hurried to a returnless distance from wife, children, and friends, reduced to the direst form of bondage the world ever knew, and at the expense of the very government which he has been taxed to support, and which in turn was bound to protect him. I will prove by a reference to the act itself that these atrocities are among its conspicuous features.
By the sixth section it is made the duty of the “court, judge, or commissioner,” “upon satisfactory proof being made by depositionor affidavit, in writing,” “or by other satisfactory testimony,” “and with proof,also by affidavit, of the identity of the person whose service or labor is claimed,” “to make out and deliver to such claimant a certificate,” &c.
And the tenth section of the act declares that the transcript of a record “taken in any state or territory, or in the District of Columbia,” and “produced in any other state, territory, or district,” and being there “exhibited to any judge, commissioner, or other officer authorized to cause persons escaping from service or labor to be delivered up, shall be held and taken to be full andconclusiveevidence of the fact of escape, and that the service or labor of the person escaping is due to the party in said record mentioned.” “And upon the production of other and further evidence,if necessary, either oral orby affidavit, of the identity of the person escaping, he or she shall be delivered up to the claimant.”
Here, then, is a provision unknown to the common law of England, or to any colony, or people, or tribe that ever claimed the common law of England as their inheritance; unknown even to the star chamber, or high commission court; unknown in the bloodiest reigns of the bloodiest tyrants that ever sat upon the English throne; unknown to those judicial villains whom Lord Campbell calls “ruffians in ermine”—incorporated into the code of a republican government. Evidence, which may consign to slavery a man who is ostensibly and presumptively free,—free by the laws of the state where he is, and free every where by the law of God and humanity,—may be prepared in his absence, without any notice to him, and by any means of perjury or subornation of perjury to which guilt may resort, and this evidence is made legally sufficient to doom a fellow-being to relentless bondage. Notwithstanding those remarkable clauses in the constitution which provide that “in all criminal prosecutions the accused shall enjoy the right to aspeedyandpublictrial,” “be informed of the nature and cause of the accusation,” “be confronted with the witnesses against him,” “have compulsory process for obtaining witnesses in his favor,” “and have the assistance of counsel for his defence;” yet Judge Story comments upon them in a spirit of dissatisfaction and sorrow; “for,” says he, “unless the whole system [of the common law] is incorporated,and especially the law of evidence, a corrupt legislature, or a debased and servile people, may render the whole little more than a solemn pageantry.” (3Com.662.) In speaking of a “corrupt legislature,” he seems to describe what this Congress has done in enacting the Fugitive Slave law at its last session; and, in speaking of a “debased and servile people,” he speaks of just such a people as the advocates and champions of this law are now striving to make the people of the United States become!
The right of cross examining witnesses is a common-law right, appertaining to all kinds of trials. It is a right without which all trials are but mockery. It is oftentimes a hardship to be confronted with witnesses of whom one knows nothing; but to be debarred from all opportunity of getting, by cross questioning, at the knowledge that is in them; to be debarred from the right of showing that they are incompetent even to folly, or corrupt even to wilful perjury, this is a barbarity unknown to any code in the civilized world, save to the code of the United States of America. It is what even barbarians might be ashamed of. It is offering bounties and premiums on villany, and turning the courts into brokers’ offices for perjury. Under such a law, is there a single colored person at the north who can rise to his labor in the morning, or lie down to his repose at night, with any feeling of security that avarice and false swearing may not then be at work for his destruction? Who can wonder, if he is tormented in his nightly dreams by images of the man-stealer,in far off regions, plotting for his ruin? Who can wonder if, in his city residence, he starts as he turns the corner of every street; or, in his rural home, if he shudders at the rustle of every leaf, lest some kidnapper should spring from his ambush to seize him? That sense of personal security which every honest man is entitled to feel, this law abolishes. The virtuous man cannot rely upon his government, nor the pious man upon his God, for earthly protection. For him the Prince of Darkness has obtained the ascendency in the affairs of men, and offers impunity to guilt, while protection is withdrawn from innocence. The life of such a man is a perpetual agony of alarm for himself and for his family. A cloud charged with lightning is forever suspended over his head, and no genius can devise the means to turn aside its bolts.
Sir, before God, I believe that, in the judgment of an impartial posterity, this method of taking evidence, by the cruellest of means and for the wickedest of purposes, will be held as atrocious and as execrable as that horrid method of extracting evidence by torture, which once prevailed, but which now even half-civilized nations have abolished. A brave heart could withhold a false confession, even upon the rack. With the images of wife and children before the eyes, martyrdom for their protection has been sweet. But there is no man whom God ever made who will not tremble, and stand aghast with consternation, with the conscious knowledge in his mind that he, his wife and children, and all that he holds dear upon earth, are at the mercy of every pirate-hearted villain between the Atlantic and the Rio Grande; nay, that the government offers inducement to foreign assassins to come here, where, with less risk, they can make more money by false swearing and judicial kidnapping than they could at home by murder and robbery. Better, a thousand times better, had the constitution allowed thecitizen “to be compelled to be a witness against himself,” and laid its prohibitions upon the fabrication of testimony against him in his absence.
The tenth section of the act declares that this evidence, thus obtained under a foreign jurisdiction and in the absence of the party, shall be “conclusive.” Now, the legal force and meaning of this provision is, that no amount or weight of evidence, no array of the most unimpeachable witnesses, not even the personal knowledge of the commissioner himself, who tries the case, though given under the sanction of an oath, which the law does not require him, as a commissioner, to take, shall be admissible to rebut this “conclusive” testimony. It is not madeprima facieevidence merely against the respondent; it does not merely shift the burden of proof, so that the presumptive freeman becomes presumptively a slave, and must himself establish the freedom he would possess; but the law magnifies it into a species of proof that is “conclusive,”—that is, unquestionable, irrefragable, omnipotent,—like a miracle of God, not to be disputed. And this greatest of legal force is given to the worst kind of evidence. I say that a law so worthy of abhorrence, so truculent, so fiendish, is not to be found upon the statute book of any other civilized nation on the globe.
Such, too, has been the practical construction given to the law. I see by the papers that, in a late case which occurred at Detroit, the respondent declared himself a free man, and prayed for a continuance, to allow him to send to Cincinnati for his free papers. But the commissioner refused the delay, saying that, under this law, even free papers from the very man that claimed him would be of no avail; for where the law made the evidenceconclusive, nothing could rebut it. Any counter evidence must always be admitted, on the hypothesis that the evidence already received may be controlled by it. But what an infiniteabsurdity to suppose that one mass or body of proof can beconclusive, over another which isconclusive. The law might just as well have madecolorconclusive, not only that the respondent was a slave, but that he ran away from the man who claims him. The law, as it stands, is as much a slave-making as it is a slave-catching law.
It declares that the proceedings shall be “summary;” and it provides a different rate of compensation, according as the decision is for freedom or against it. On what principle is this difference of compensation founded? Every body can see at a glance that when a claimant can prepare his evidence beforehand and in secret, he would be a fool not to make out aprima faciecase. If the respondent adduces no proof, the case goes by default, and judgment, without delay, is entered against him. But if the claim is contested, then witnesses are to be examined, arguments are to be heard, evidence is to be weighed, legal questions to be investigated, and such a decision made as the commissioner is willing to pronounce before the world. It is only in the last class of cases, the contested class, that the respondent will be discharged. The cases, therefore, that result in freedom will ordinarily occupy sixfold or tenfold more time, besides requiring the exercise of more legal knowledge and ability, than those which terminate fatally to the respondent. Yet for decreeing the freedom of a man, the fee is but half as much as when a sentence of bondage is awarded against him. This surpasses the bribery of Judas by the high priests. They had not diabolical wit enough to present a contrast between right and wrong, as a special stimulus for committing iniquity.
The “summary manner” of trial provided for by this law, when considered in reference to rights so momentous, shocks every Anglo-Saxon mind. One’s blood must all be corrupted in his veins, before he canhear of it without indignation. It is the noblest attribute of our race, that we hold civil and religious liberty to be more sacred and more precious than life itself. Yet by what safeguards of constitution, of law, and of forms of practice, is life protected amongst us? There must be a presentment, by at least twelve sworn men, before a man can be held to answer to a charge by which it can be forfeited. Then come the traverse jury, the right of peremptory challenge, the assignment of counsel, the right to see the indictment beforehand, and to know the names of witnesses who are to be called against the accused, and compulsory process to insure the attendance of witnesses in his favor! What noble barriers are these against the oppression of a powerful government, and the malignant passions of powerful men! The probable culprit,—the man laboring under the most violent suspicion,—though caught with the blood-red dagger in his hand over the prostrate body of the victim, is guarded by all that human ingenuity has been able to devise; by all the knowledge that we can command this side of the omniscience, and by all the power this side of the omnipotence of God. Yet in the very community where these rights are reverenced and upheld, a man may be seized without notice, hurried to a tribunal without an hour for preparation, and then be borne away a thousand miles, where all that life has of hope and of enjoyment is taken away, and all that it knows of misery and of terror is realized.
Let me ask any man who ever had a case in court that was worth defending, whether he was prepared to meet it the first hour he had notice of its existence? A respondent’s witnesses may be resident in different states, and distances of hundreds of miles may intervene between him and them. His proof may consist of deeds, or wills, or records, which cannot be found or authenticated without delay. His defence mayconsist of matters of law, which the ablest counsel may require time and the examination of books to investigate. All these obstacles to instantaneous readiness may exist together, and yet the inexorable mandate of the law scorns his appeal for that delay on which his highest interests are suspended, and dooms him to bondage because he cannot achieve impossibilities. Under such a law, not one man in ten who will be arrested, even though he should be free, will be prepared to establish his freedom. A great portion of these outcasts from human justice, I doubt not, are better prepared for the summons of instantaneous death than for this summons of instantaneous trial.
Then the cruel haste in executing judgment! The murderer is allowed a season of respite between the hour of sentence and the hour of death; the debtor may turn out goods to satisfy a creditor’s demands; but the alleged fugitive has no reprieve. He has no opportunity to solicit money to redeem himself, or to negotiate for the ransom of body and soul. Swift and sure as an arrow to its mark, he is speeded on his way to the abodes of toil and despair. The witnesses who swore away his liberty may have been perjured, but he cannot stop to convict them. The court may have been corrupt, but he cannot remain to impeach it. However honestly rendered, the judgment may be reversible for error in law, but he cannot stay to set it aside.
Now, every one must see that where there is so little caution before trial, there should be a liberal opportunity for revision after it. But here is infinite exposure to error with no chance for rectification. Overstepping the acts of the common tyrant, there is an infliction of the most heinous wrong, with a premeditated purpose that it shall not be repaired. The great and free republic of North America has transferred the unwritten law of Judge Lynch to its statute book.
However clear the constitutional obligation of Congress to enact a law for the reclamation of fugitive slaves may be supposed by any one to be, there certainly are limitations to this obligation, which all the principles of our government forbid the law-maker to transcend.
In the first place, this constitutional obligation must be strictly construed. The main and primary object of the constitution was to protect natural rights; but the object of the Fugitive Slave clause was to protect a legal right in conflict with natural right. All judges of an honorable name, all courts in all civilized communities, have recognized a broad distinction in the principles of interpreting law. They have held that provisions against life and liberty should be strictly construed, while those in favor of life and liberty should be liberally construed,—the one so construed as to inflict as little of pain and privation as possible; the other, to give as much of freedom and immunity as possible. These have become maxims, or axioms, of legal interpretation; and in their long and unbroken recognition, it is not too strong an expression to say, they impetrate and command a strict construction of that clause in the constitution under which fugitives may be claimed. And the same legal maxims, in regard to all subjects touching life and liberty, bind Congress in legislating under the constitution, as bind the judicial tribunals in administering the law.
Yet the Fugitive Slave law contains provisions which there can be no pretence nor shadow of a pretence that the constitution requires. By the constitution, “No person held to service or labor in one state, escaping intoanother, shall be discharged.” Intoanotherwhat? Indisputably, into anotherstate. It must meanstate, and can mean nothing else; for the laws of language admit no other construction. The expression, “No person held in onestate, escapingintoanotherTERRITORY,” would be not merely ungrammatical and un-English, but nonsensical. No man of common intelligence ever so construed a sentence. Yet the sixth section of the act provides not only for the case of slaves escaping from one state into another state, but for their escape from a state into aterritory, and for an escape from aterritoryinto a state, and for an escape from oneterritoryinto anotherterritory. Four classes of cases are provided for by the law, while but one of them finds any warrant in the constitution.
Now let any one take a map of the United States, and see over what a vast area the law extends, over which the provision in the constitution does not extend. The region is continental over which the law unconstitutionally extends, and this corresponds with the vast inhumanity of the principle which so extends it.
Mark another particular in which the provisions of the law go beyond the requirements of the constitution. The constitution says the fugitive shall be “delivered up.” The law makes provision for transporting him to the claimant’s home. Is there any similar provision respecting any other species of property? If a northern merchant recovers a debt from his southern customer, does the government assume the responsibility of seeing that it is paid to the creditor at his own home? If a northern man is robbed, and the stolen goods are found in another state, does the government transport them back and pay freight? Then, why should government interpose in this case to bear costs and risks, unless slavery is so meritorious an institution as to deserve the benefactions as well as the benedictions of freemen?
Then observe how artfully the law is worded, to make the assistance rendered to the claimant go beyond any supposed necessity in the case. “If,” it says, “upon affidavit made by the claimant, ...his agent or attorney, ... that he has reason to apprehend that such fugitive will be rescued by force, ... before he can take himbeyond the limits of the state in which the arrest is made, it shall be the duty of the officer ... to remove himto the state whence he fled.” Thus, if danger is apprehended,within the first ten miles, the government shall see the slave safely home, at its own expense,though it be a thousand miles.
But besides the unheard-of principle of saddling the government with the expense of prosecuting the private claims of its citizens within its own jurisdiction, I should like to know what provision the constitution contains, which, though interpreted by the most latitudinarian constructionist, confers any right upon Congress thus to take the money of one citizen to pay the private expenses of another. There is no clause, or phrase, or word in that instrument which favors the idea that the Northern States should bear the expense, as well as the disgrace, of thus remanding our fellow-men into bondage.
Besides, if the limits of the constitution were to be transcended in order to deliver an alleged fugitive to his master, would not the slightest element of equity, or decency, even, require that when a freeman is condemned to bondage under the law, his expenses, incurred in returning to the place where he was plundered of himself, should be reimbursed to him by the government which had failed in its duty to protect him? If the claimant of James Hamlet could be supplied with a force, at the government’s expense, to carry him into slavery, why should not the expense of coming back into a land of freedom be reimbursed by the government to Adam Gibson, after one of its venal and villanous instruments had wrested that freedom from him?
The law also provides for another thing which thesupreme court has expressly declared to be unconstitutional, or beyond the power of Congress to enact. It provides that anystatecourt of record, or judge thereof, in vacation, may take and certify evidence which shall be “conclusive” in regard to two of the three points which are made sufficient by the law to prove a man a slave. Thus, the two facts of slavery and of escape may be “conclusively” proved by the certificate of a judge of astatecourt, so that the judge before whom the alleged fugitive is brought shall, in regard to these facts, exercise only a mere ministerial function. Now, he who has power to take and authenticate evidence, which it is predetermined shall be “conclusive” in the case, has power to decide the case. This, in its nature and essence, is a judicial power; yet this power is given by the act to anystatecourt of record, and to any judge thereof in vacation. Contrary to this, however, the supreme court has said, “Congress cannot vest any portion of the judicial power of the United States except in courts ordained and established by itself.”—Martinvs.Hunter’s Lessee, 1 Wheat. 330. “The whole judicial power of the United States should be, at all times, vested in some courts created under its authority.”—Ib.331. “The jurisdiction over such cases, [cases arising under the constitution, laws, and treaties of the United States,] could not exist in the state courts previous to the adoption of the constitution, and it could not afterwards be directly conferred on them; for the constitution expressly requires the judicial power to be vested in courts ordained and established by the United States.”—Ib.335.
Yet, though it is expressly declared that Congress cannot vest any part of the judicial power of the United States in a state court, the state courts are empowered by this law to take and certify evidence, which is made “conclusive” in the case.
Look at the subject in another of its aspects. Here are some half million of free colored persons in the free states.Theyare unquestionably free. They possess, as fully as you or I, those prerogatives of freedom without which life ceases to be a blessing. Their freedom is guarantied to them by the constitution of the United States, and by the constitutions and laws of the states respectively in which they dwell. They certainly are a part of the people. In some of the states, as in Massachusetts for instance, the law knows no iota of distinction, in any respect, between a black man and a white man; between one of European and one of African descent. It is the noble privilege of a Massachusetts man to say, that, as all men are equal before the divine law, so are all men equal within our borders, before the human law.
Now, scattered among this half million, more or less, of free colored people in the free states, there are a few hundreds, or a few thousands if you please, of “fugitives from service or labor,” as the constitution cunningly and evasively phrases it; which, being interpreted, means, as the whole world knows, fugitives from toil, and fetters, and stripes, and agony; fugitives from ignorance and the thick darkness of the intellect; fugitives from moral debasement, and from that enforced pollution of body and soul that spares neither wife, nor mother, nor a daughter’s innocence; fugitives from the disruption of family ties, and from the laceration of all human affections; fugitives, in fine, from a heathenism of superstition and religious blindness into the glorious light of the gospel of Jesus Christ.
Now this free class and this fugitive class belong ethnologically to the same race. They speak the same language, and wear the same distinctive characteristics of feature and of form. All the unspeakable privileges, all the sacred titles and immunities of the oneclass are enshrined in the same complexion and in the same contour of person that attend the debasement and privation of the other. The vessels of honor and of glory are moulded into the same shape with the vessels of dishonor and of shame.
Now, after this debased class has been created by a wicked system of human laws, and after it is mingled with the free class, another law steps in and decrees that the former shall be remanded to their bondage. An awful decree! second in terribleness only to that which shall divide between the blessed and the accursed before the judgment-seat of God. Within the compass of human action, there never was an occasion that demanded more unerring justice and wisdom, that invoked more foresight and solicitude, that appealed more touchingly to every sentiment and instinct congenial to liberty, with which God has endowed and ennobled the soul of man, so to devise the law, if law there must be, as not to involve the free in the horrible doom of the enslaved. If, in the administration of penal laws, a knowledge of human fallibility has forced the maxim into existence and into practice, that it is better that ninety-nine guilty persons should escape than that one innocent man should suffer, ought not the same benign rule to be adopted in our legislation whenever there is a possibility of exposing the free to the fearful fate of the enslaved? But instead of this jealousy and circumspection, what have we? A law whose first utterance abjures the distinction between freedom and bondage; a law which brings the whole free colored population of the United States within the outer circles of the whirlpool of slavery, that they may be ingulfed in its vortex; a law which empowers every villain in the country, by fabricating false testimony at his own leisure and convenience, to use his own freedom in order to rob other people of theirs! I aver, that before any moral tribunal, whereright and wrong are weighed in the balances of the sanctuary, there is not a felony described in the whole statute book that is more felonious than such a law.
It has become an axiom in the administration of justice,—an axiom slowly evolved by the wisdom of ages, but now firmly established and incorporated into the jurisprudence of every civilized community,—that the ethical policy of the law will tolerate no rule of action that opens the door to fraud or crime, but will even vacate solemn contracts between parties otherwise competent, in its jealousy and apprehension of wrong. Hence the law applicable to common carriers, which will not allow a man to exonerate himself from liability even by express notice, lest opportunity should be given for collusion and fraud. Hence, too, the principle of law which forbids an insolvent debtor to pay, or even to contract to pay, abona fidecreditor in anticipation of bankruptcy. Now, this principle applies with tenfold force to legislators,—withholding and repelling them from passing any law which may involve the innocent in the fate of the guilty, or the free in the bondage of the enslaved.
But the law violates a still deeper principle than these. I do not recollect the instance of a single northern man or northern press, utterly false to freedom, and venal as so many of them have been, that has expressed entire satisfaction with the law. They palliate it, they strive, by seductive party and pecuniary appeals, to beguile men into its support. They look outside of it for pretexts to hide its inherent baseness; but not one of them, so far as I know, has had the effrontery to justify it on its intrinsic merits. Even those northern men who voted for it have sought refuge from the storm of righteous indignation that burst upon them, by alleging that it was an essential ingredient in a system of measures, and entered, as a necessary element, into a desirable compromise.
When this language is translated, what does it mean? Simply this, and no more. California was admitted, and thereby certain political and commercial advantages were gained. This, in legal language, was the consideration. The Fugitive Slave law was passed, and thereby the rights of freemen, the property of men in themselves, all the household sanctities, all the domestic endearments of half a million of men, were put in peril. This was the equivalent given! A mere barter of the holiest interests for worldly advantages! And these interests were given away by men who did not own them, and therefore had no right to transfer them. The whites, north and south, played a game, and made the black people their stakes. Who authorized the law-makers to derive a benefit to themselves from doing this infinite wrong to others? Who gave them the terrible prerogative of making others suffer for their pleasure. I say it with reverence, but I still say it with emphasis, that we cannot conceive of God himself as having power to inflict vicarious suffering without the free consent of the sufferer! Yet the atrocities of this law are defended by those who made it, on the ground that they and other white men have secured benefits to themselves by sacrificing the liberty, happiness and peace of half a million of their fellow-beings of a different color. Cause and counsellor are alike; for the defence is as profligate as the act it defends.
I say, sir, it is the population of African descent in the free states which is specially put in peril by this law. Occasionally, indeed, persons of unmixed white blood are seized and enslaved under it. These cases, however, are comparatively rare. But suppose the reverse. Suppose circumstances to be such that the whole body of the white population should be as much endangered by it as the colored people now are. Suppose that not only the white voters themselves,but their wives and their children, were as liable to be “Ingrahamed,” as the blacks; suppose this, I say, and would the existence of the law be tolerated for an hour? Would there not be an uprising of the people, simultaneous and universal against it, and such a yell of execration as never before burst from mortal lips? The name of every man who had voted for it, or who should defend it, would be entered upon that apostate list at whose head stands the name of Judas. Christian and Infidel, Jew and Gentile, would execrate it alike. Why, then, if they would do this to avert such peril from themselves and their families, do they not do it when their sable brethren are in jeopardy? Alas! there is but one answer! From selfish considerations, from the love of wealth, or the love of power, they have discarded that heaven-descended maxim, “Whatever ye would that men should do unto you, do ye the same unto them.”
And it is this very class of men who have thus abjured the precepts of Jesus Christ, who have trampled upon the divine doctrines of liberty and love, that now so clamorously summon us to an obedience to law.
In answer to this call, let me say, that true obedience to law is necessarily accompanied and preceded by a reverence for those great principles of justice and humanity without which all law is despotism. How can a man pretend to any honest regard for the principle of obedience to law when he is willing, as in the case of this fugitive act, to transcend our constitutional law, and to invade the divine law? It is but an appeal to the lower rule of action to justify a violation of the higher. Under the pretext of rendering unto Cæsar the things that are Cæsar’s it denies to God the things that are God’s.
And again, a true reverence for law is a general principle, and not an isolated fact. It applies to alllaws collectively, and not to any one law in particular. It bestows its greatest homage upon those laws that embrace and confer the most of human welfare; for, were all the laws of a community, or the great majority of them, unrighteous, then disloyalty to law would be the virtue. Can the class of men who demand our allegiance to the Fugitive Slave law stand this test? We have usury laws, which not only carry the legal force of statutes, but the moral power of the greatest names in legislation and in statesmanship. Are the men in New York, in Philadelphia, and Boston, who are most vehement in support of the Fugitive Slave law, signalized for their regard to the statutes against usury?
Is not money lent in all those cities on the same principle that wreckers send a rope’s end to a drowning man,—for as much as they can extort? It is notorious that among the great body of merchants and capitalists in those cities, interest is regulated by the pressure upon the money market, and that no more idea of law mingles with their contracts than in California, where there is no law on the subject.
We have laws restricting the sale of intoxicating liquors, and designed to promote the glorious object of temperance. For which practice have our cities been conspicuous,—for their obedience to these laws or for their violation of them? A few years ago, when a question of the constitutionality of a law of Massachusetts for the restraint of intemperance arose, did not its two distinguished senators appear in the supreme court of the United States, and make the most strenuous exertions to annul the law of their own state, and to open anew the flood-gates for overwhelming their own constituents in misery and ruin,—the selfsame gentlemen who are now so intolerant even of discussion?
Look at the complaints which come to us every dayfrom the friends of a protective tariff. They tell us that our revenue laws are fraudulently and systematically evaded; and they number the violations of these laws by thousands and tens of thousands. Who are the violators? Not men living in the country; not the farmers and mechanics and laborers,—the substratum of our strength and the origin of our power;—but they are the city merchants, the getters-up of “Union meetings,” and the members of “safety and vigilance committees,” who are so earnest in inculcating those lessons of obedience by their precepts, which they have done so little to recommend by their example.
The Southern States are loud in their calls upon us to execute the Fugitive Slave law. But what examples have they set us on the subject of obedience to law? I think I may be pardoned for mentioning a few cases, to show how their preaching and practice tally.
In 1831, the legislature of Georgia offered a bribe offive thousand dollarsto any one who would arrest, and bring to trial and conviction, in Georgia, a citizen of Massachusetts, named William Lloyd Garrison. This law was “approved” by William Lumpkin, governor, on the 26th December, 1831. Mr. Garrison had never stepped foot within the limits of Georgia, and therefore it was not a reward for his trial and conviction, but for his abduction and murder.
At a meeting of slaveholders, held at Sterling, in the same state, September 4, 1835, it was formally recommended to the governor, to offer, by proclamation, the five thousand dollars appropriated by the act of 1831, for the apprehension of either of ten persons, citizens, with one exception, of New York, or Massachusetts, whose names were given; not one of whom, it was not even pretended, had ever been within the limits of Georgia.
The Milledgeville, Georgia, “Federal Union,” ofFebruary 1, 1836, contained an offer of $10,000 for kidnapping A. A. Phelps, a clergyman of the city of New York.
The committee of vigilance, (another “committee of vigilance,”) of the parish of East Feliciana, offered, in the Louisville Journal, of October 15, 1835, $50,000 to any person who would deliver into their hands Arthur Tappan, a merchant of New York.
At a public meeting of the citizens of Mount Meigs, Alabama, August 13, 1836, thehonorableBedford Ginress in the chair, a reward of $50,000 was offered for the apprehension of the same Arthur Tappan, or of Le Roy Sunderland, a Methodist clergyman of New York.
Repeated instances have occurred in which the governors of slave states,—Virginia, Georgia, Kentucky, Alabama, &c.,—have made requisitions upon the governors of free states, under the second section of the fourth article of the constitution, for the surrender of free citizens,as fugitives from justice, when it was well known that the citizens so demanded were not within the limits of the slave states at the time when the alleged offence was committed, and, in some instances, had never been there in their lives,—high executive perversions of the constitution of the United States, by chief magistrates who had sworn to support it!
For nearly twenty years past the post-office laws of the United States have been systematically violated in slave states, the mail bags rifled, and their contents seized and publicly burned; and, in some instances, these violations have been enjoined, under heavy penalties, by a law of the states. There are several of the slave states on whose statute books these laws, commanding a violation of the post-office, stand to-day.
During Mr. Adams’s administration, a man by the name of Tassels, in Georgia, was adjudged to be hanged,under a law of the state, as clearly unconstitutional as was ever passed. A writ of error was sued out from the supreme court of the United States, in order to bring the case before that tribunal for revision. But the state of Georgia anticipated the service of the writ, and made sure of its victim by hanging him extemporaneously.
Within a few weeks past,—the accounts having but just now reached us,—an aged and most respectable individual of the name of Harris, a citizen of New Hampshire, has been tried by a mob in South Carolina, and tarred and feathered, because he happened to havein his trunka sermon which had been sent to him by one of his acquaintances, a clergyman at the north; though he had never showed the sermon to a single individual, nor whispered a word of its contents. Another man, a Dr. Coles, belonging to Boston, who had been lecturing on the subject of physiology, was, within a few days, seized and carried before a magistrate, in the same state, his trunks rifled, the private letters sent to him by his wife and family publicly read, with the most indecent comments, and all without any shadow of reasonable suspicion against him.
The unconstitutional imprisonment of northern seamen in southern ports is an occurrence so frequent, and so universally known, that I need not spend time to enumerate or to describe the cases.
The President of the United States has made proclamation, and proffered the military and naval force of the United States, to aid any southern slave owner in reducing his fugitive slave to a new bondage; but I have not heard that he has made any similar proclamation, or manifested any anxiety for the support of that part of the constitution which says that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.”
Now, with a few exceptions, it is these very classesof men who violate the laws against extortion and usury; who break down the barriers against the desolations of intemperance; who, almost alone of all our citizens, are implicated in the breach of the revenue laws; who annul the post-office laws of the United States; who offer rewards for free northern citizens, that they may get them in their clutch to lynch and murder them; who demand free citizens as fugitives from justice, in states where they have never been, and who imprison free citizens and sell them into slavery;—it is these classes of men who are now so suddenly smitten with a new sense of the sacredness of law, and of the duty of obedience to law,—not of the laws of God, not even of the laws of man, in general, but of this most abominable of all enactments, the Fugitive Slave law in particular.
I do not cite the above cases from among a thousand similar ones, as any justification or apology for forcible and organized resistance to law by those who even constructively can be said to have given it their consent. But the words of a preacher do not “come mended from his tongue,” when his name is a scandal among men for his violation of all the precepts he enjoins.
And now, sir, when I am called upon to support such a law as this, or to desist from opposing it in all constitutional ways, while it lasts, my response is, repeal the law, that I may no longer be called upon to support it. In the name of my constituents, and by the memory of that “old man eloquent,” in whose place it is my fortune to stand, I demand its repeal. I demand it,—
Because it is a law which wars against the fundamental principles of human liberty.
Because it is a law which conflicts with the constitution of the country, and with all the judicial interpretations of that constitution, wherever they have been applied to the white race.
Because it is a law which introduces a fatal principle into the code of evidence, and into judicial practice,—a principle, before which no man’s liberties and no man’s rights of any kind can stand.
Because it is a law which is abhorrent to the moral and religious sentiments of a vast majority of the community that is called upon to enforce it.
Because the life and character of so many of its apologists and supporters are themselves potent arguments against whatever they may advocate.
Because it is a law which, if executed in the free states, divests them of the character of free states, and makes them voluntary participators in the guilt of slaveholding.
Because it is a law which disgraces our country in the eyes of the whole civilized world, and gives plausible occasion to the votaries of despotic power to decry republican institutions.
Because it is a law which forbids us to do unto others as we would have them do to us, and which makes it a crime to feed the hungry, to clothe the naked, and to visit and succor the sick and the imprisoned.
Because it is a law which renders the precepts of the gospel and the teachings of Jesus Christ seditious; and, were the Savior and his band of disciples now upon earth, there is but one of them who would escape its penalties by pretending “to conquer his prejudices.” And, finally,
Because the advocates and defenders of this law have been compelled to place its defence upon the express ground that the commandments of men are of higher authority than the ordinances of God.
In Hooker’s sublime description of law, when understood in its generic sense, he says,—
“Of law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmonyof the world; all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempted from her power; both angels, and men, and creatures, of what condition soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy.”
Now, sir, with these glorious attributes of “law,” I say the Fugitive Slave law of the last session possesses not one quality in common, nor in similitude. To say that the seat of such a law is in the “bosom of God,” is the intensest blasphemy. To say that it is “the harmony of the world,” is to declare that the world is a sphere of ubiquitous and omnipotent wrong, uncheckered by any thought of justice, and devoid of any emotion of love. To say that “all things in heaven do homage” to such a law, is to affirm of the realms of light what is true only of the realms of darkness. The “least” do not “feel its care,” but tremble and wail beneath its cruelty; while the “greatest” and the strongestare“exempt from its power;” for they made it not for themselves but for others. To no class of “creatures,” rational or irrational, human or divine, can it prove to be the “mother of peace and joy;” but wherever it extends, and as long as it exists, it will continue to be an overflowing Marah of bitterness and strife.
As the great name of Hooker has been profanely cited in behalf of this law, I will close by quoting his distinction between those laws of human governments which ought to be obeyed, and those which ought not:—
——“which laws,” says he, “we must obey,unless there be reason showed which may necessarily enforce thatthe law of reason or of God doth enjoin the contrary.”