SPEECH

Delivered in the House of Representatives of the United States, in Committee of the Whole on the State of the Union, February 28, 1851, on the Fugitive Slave Law.

Mr. Chairman;

Some time ago, I prepared a few comments upon those prominent measures of the last session, which have since arrested the attention of all the lovers of constitutional liberty, and of moral and religious men, throughout the civilized world. I am unwilling to suffer the present session to close without expressing the reflections I have formed; because I deem it but a reasonable desire that my opinions should be placed upon the records of the very Congress to whose measures they refer.

Does any one ask what benefit I anticipate from a discussion of this subject at the present moment? I answer, this benefit at least: that of entering a solemn protest against a grievous wrong, and of placing upon the tablets of my country’s history, what I believe to be the views of a vast majority of my constituents, in common with the vast majority of the people of Massachusetts.

Some of those compromise measures are destined to be of great historic importance. They will be drawn into precedent. When, in evil days, further encroachments are meditated against human rights, these old measures will be cited as a sanction for new aggressions; and, in my view, they will always be found broad enough, and bad enough, to cover almost anynameable assault upon human liberty. When bad men want authority for bad deeds, they will only have to go back to the legislation of Congress, in 1850, to find an armory full of the weapons of injustice.

Sir, legislative precedents are formidable things. If created without opposition, and especially if acquiesced in without complaint, they become still more formidable. Now, if there were no other reasons for reviving this subject at the present session of Congress, this alone would be an ample justification,—it forefends the argument from acquiescence.

When several of these measures were passed, and particularly when one of the most obnoxious and criminal of them all was passed,—I mean the Fugitive Slave bill,—this House was not a deliberative body. Deliberation was silenced. Those who knew they could not meet our arguments, choked their utterance. The previous question, which was originally devised to curb the abuse of too much debate, was perverted to stop all debate. The floor was assigned to a known friend of the bill, who after a brief speech in palliation of its enormities, moved the previous question; and thus we were silenced by force, instead of being overcome by argument. For, sir, I aver, without fear of contradiction, that the bill never could have become a law, had its opponents been allowed to debate it, or to propose amendments to it. For the honor of the country, therefore, at the present time, and for the cause of truth hereafter, it is important that the hideous features of that bill, which were then masked, should be now unmasked. The arguments which I then desired and designed to offer against it, I mean to offer now. Those arguments have lost nothing of their weight by this enforced delay, and I have lost nothing of my right to present them.

Mr. Chairman, I feel none the less inclined to discuss this question, because an order has gone forth that itshall not be discussed. Discussion has been denounced as agitation, and then it has been dictatorially proclaimed that “agitation must be put down.” Sir, humble as I am, I submit to no such dictation, come from what quarter or from what numbers it may. If such a prohibition is intended to be laid upon me personally, I repel it. If intended to silence me as the representative of the convictions and feelings of my constituents, I repel it all the more vehemently. In this government, it is not tolerable for any man, however high, or for any body of men, however large, to prescribe what subjects may be agitated, and what may not be agitated. Such prescription is at best but a species of lynch law against free speech. It is as hateful as any other form of that execrable code; and I do but express the common sentiment of all generous minds, when I say that for one, I am all the more disposed to use my privilege of speech, when imperious men, and the sycophants of imperious men, attempt to ban or constrain me. In Italy, the pope decides what books may be read; in Austria, the emperor decides what books may be written; but we are more degraded than the subject of pontiff or Cæsar, if we are to be told what topics we may discuss. If the subjects of a despotic government are bound to be jealous even of the poor privileges which they possess, how sensitive, how “tremblingly alive all o’er” ought we to be at these threatened encroachments upon freedom of speech and freedom of thought. I think that those who say so much about recalling us to a sense of our constitutional obligations, would do well to remember, that the very first article of the amendments to the constitution secures the freedom of speech and the freedom of the press. By the common consent of this country, manifested in all forms for more than half a century, the old alien and sedition law has been condemned. Has that law been condemned for fifty years in orderto make our shame more conspicuous by its revival under circumstances of intolerable aggravation? Sir, I hold treason against this government to be an enormous crime; but great as it is, I hold treason against free speech and free thought to be a crime incomparably greater.

If it be just and heroic to rebel against all arbitrary invasions of free thought and free expression, then is it not proportionably base and dastardly to utter menaces, or threaten social or political disabilities for the unconstrained exercise of these birthrights of freemen? On the face of it, it must be a bad cause which will not bear discussion. Truth seeks light instead of shunning it. He convicts himself of wrong who refuses to hear the arguments of his opponent. It was well said by Montesquieu, that “the enjoyment of liberty, and even its support and preservation, consists in every man’s being allowedto speak his thoughts and lay open his sentiments.” Wherefore, then, in a country hitherto reputed to be free, are we told that discussion must be stopped, and agitation must be put down? It seems as if, when a freeman debases his soul by lending himself to the defence of slavery, God punishes him on the spot by demoralizing his own nature with that spirit of tyranny which belongs to slavery. Wherein consists the advantage of a republican government over a despotism, if the freedom of speech and of the press, which can be strangled in the one by arbitrary command, can be stifled in the other by obloquy and denunciation?

It is remarkable, too, that of all the “agitators” in the country, there are none more violent than those who are agitating against agitation. Throughout the north, that portion of the public press which volunteers its influence to extend the domain of slavery, and to maintain it by extra-constitutional laws, is constantly provoking the agitation it denounces. What are theseso-called Union meetings in northern cities but an extensive apparatus of agitation,—a piece of machinery to manufacture and send abroad the very articles which its managers declare to be contraband? Through public assemblies, through the public press, and by correspondence designed for the public eye, they are shaking the common air to keep it calm; they are agonizing and in convulsions for repose; they are vociferating to maintain silence. In the most clamorous days of anti-slavery, there never was half so much said and written against the institution as is now said and written for it. Sir, is the right of agitation to be monopolized by those who denounce it? Is free speech to be only on one side; and is it one of the offices of free speech to silence the sentiments it dislikes? I think this is the second time in the history of this country, that an attempt has been boldly and unblushingly made to stifle free discussion; and I do not believe the fate of those who are now laboring to accomplish so nefarious a purpose will be historically more enviable than that of their prototypes, who passed the far-famed law against seditious speeches and writings.

Is it not extraordinary, too, that this interdict on discussion should be applied to a subject which touches the highest interests of man, and calls into fervid action all the noblest faculties of his nature; which, more than any thing else, tests the question whether a manisman? We may discuss the question of bank or sub-treasury, of tariff or free trade; but the only subject too sacred to be approached, is slavery and its aggrandizements. This is a free country, except when a man wishes to vindicate the claims of freedom. All other parts of the temple may be entered, but slavery is the ark of the covenant, and whoso lays his profane hands thereon must perish.

Sir, how comes it to pass that an institution whicheven the enlightened heathen of old pronounced to be iniquitous, and which eighteen added centuries of Christian illumination have proved to be the sum of offences against God and man, should now be protected, not merely by constitutions and laws; but that a general warfare should be waged against all those who would restrain it within its present limits, and keep it from arming itself with new weapons of oppression? How comes it to pass that this should be done, not in the despotisms of Austria and of Russia, but in republican America? Sir, it is not to be done, and cannot be done. Almighty God has so constituted the human soul, that while wrong exists upon the face of the earth, all the noblest impulses of that soul will war against it. The order of nature will war against it. “The stars in their courses” will war against it. Discussion, or agitation, if you so please to call it, is one of the Heaven-appointed means by which truth is to be spread until it covers the face of the earth, as the waters cover the sea. It was by discussion and by agitation, in synagogue and in temple, in distant cities and in different empires, that Christianity was carried from its cradle in Jerusalem to the ends of the earth. Did not the disciples of Jesus Christ go “agitating” from city to city, from Palestine to Greece, and from Greece to Rome, notwithstanding they were imprisoned and scourged, flayed alive, and burnt, and persecuted as incendiaries and fanatics, by scribe, and Pharisee, and high priest? The very accusation brought against the Savior was, “He stirreth up the people, teaching throughout all Jewry, beginning from Galilee to this place.” The subject on which anti-slavery men now “agitate” is inferior only in importance to that on which Christ and his disciples “agitated.” Nay, the only cause why Christianity has not prospered as it ought during the last eighteen centuries, and why it has not already overspread the whole earth withits blessings, is, thatLIBERTYhas not been given it as a sphere to work in. It is becauseSLAVERYhas existed among men; and Christianity never will and never can pervade the earth until the barriers of slavery are first overthrown. It was by discussion and agitation that the prevailing religion of this country,—the Protestant religion,—broke through the double phalanx of civil and sacerdotal power, and triumphed throughout the leading nations of Europe, under the indomitable energy of that old hero of Wittemburg, who did not heed nor fear that prince of the slave power, the incarnate devil himself. It was by discussion and agitation that the first glowing sparks of liberty in the bosom of the Adamses, of Hancock, and of Franklin, of Thomas Jefferson and of Patrick Henry, were fanned into a flame that consumed the hosts of the tyrant,—that tyrant who sought to put down this dreadful agitation by means not a whit more reprehensible in his day, than those by which certain leading men are striving to silence it now. Where was there ever written or published a more incendiary and fanatical document than the Declaration of Independence?—a torch to set the world on fire. In the present century, what but discussion and agitation, through all the realms of Great Britain and in this country, could have sufficed to extinguish the slave trade,—that foulest blot upon modern civilization? No, sir; agitation is a part of the sublime order of nature. In thunder, it shakes the stagnant air, which would otherwise breed pestilence. In tempests, it purifies the deep, which would otherwise exhale miasma and death. And in the immortal thoughts of duty, of humanity, and of liberty, it so rouses the hearts of men that they think themselves inspired of God; and not the mercenary clamor of the market-place, nor the outcries of politicians, clutching at the prizes of ambition, can suppress the utterances whichtrue men believe themselves Heaven-commissioned to declare.

The President’s message tells us that the compromise measures of the last session are “FINAL.” I take the liberty to say of that declaration in the message, with all due respect to the high source from which it comes, that I adopt the sentiment, that those measures arefinal, in one sense only. Their substance and object were, in an extreme degree, pro-slavery and anti-liberty. They marked the passage of this government through another long stage in the gloomy highway of oppression. They furnished another argument for those who despair of human nature; and they supply the misanthrope with a plausible reason for hating mankind. They affixed another stain upon the country, and set in deeper shade the contrast between the theory of our government and its practice. They belied still another time the gospel of love and human brotherhood. Once again they defied the vengeance of God, who is no respecter of persons, and who will bring the sinner to judgment. If such measures are to be “final,” in this sense only do I accept the proposition,—that they are to be the last of their kind; that here, at this point, the career of this iniquity is to be stayed; that here, the confederated powers of ambition and of wealth,—of those who aspire to office and those who lust for gold, have won their last victory. In this sense only do I accept the President’s declaration, that the action of the last Congress on this subject is to be deemedfinal;—that, in all future conflicts, the right shall not be trampled under foot, but the victims of oppression shall triumph. Base as human nature often proves itself to be, it sometimes manifests a divine resilience by which it springs with recuperative energy from its guilty fall.

I draw no augury of despair from the calamity that has befallen us. It teaches whatever there is of virtueand of principle in mankind, the task which has been set them to do, and whose accomplishment God will require at their hands.

It has been said by the Secretary of State, in a late speech, that if this subject be reöpened in Congress, the friends of freedom will be found in a “lean and miserable minority.” What cares my conscience, sir, whether I am in a minority or a majority,if I am right? Has any great and glorious cause ever been started upon earth, that did not find itself, at the outset, in a minority? Did Clarkson and Wilberforce open their twenty years’ contest with a majority? or were not all the office-seekers and mammon-worshippers opposed to them? Did the resistance of the revolutionary patriots to the government of Great Britain start with a majority on its side? Did the Pilgrim fathers resist conformity to ecclesiastical oppression because they were a majority of the people? Did the glorious band of reformers count on majorities, when they defied the racks and the flames of Rome? What would now be our condition if the prophets and heroes of olden days, if the warriors for truth and the martyrs of liberty, all over the earth, had yielded to so base an argument as this, and had followed the multitude to do evil, instead of battling for the truth, though it were solitary and alone? I can conceive of but one effect which such a sentiment must produce upon all noble and truth-loving men. It is to make them labor for the right with a zeal commensurate with the infinite baseness of the appeal by which they are urged to abandon it.

But I come now, Mr. Chairman, to the main topic of my remarks, which is a consideration of the character of the Fugitive Slave law, passed on the 18th day of September last.

The objections most generally urged against this law are of two kinds:

1st. That it is unconstitutional; and

2d. That, even if the framers of the constitution did leave an unguarded opening, through which such a law could be introduced without a breach in the structure of that instrument, still, that it is a cruel law, that it discards all those principles of evidence and forms of proceeding which have been devised by the wisdom of ages for the protection of innocence against power, and that in its whole scope and spirit it is in conflict with our fundamental ideas of human liberty.

It will be seen by this statement, that I here accept the constitution according to its commonly-received interpretation. There is a class of defenders of this law whom I wish to meet on their own ground. I do not, therefore, object here to the constitution as they understand it, but to the law. However much a man may reverence the constitution, though he may make it an idol and worship it, yet I mean to show him that this law is an unholy thing in its presence. I object, then, to the law as a departure from the constitution,—not a departuretowardsdespotism merely, butintodespotism. Admitting, what many deny, that when the constitution speaks of “persons held to service or labor,” it means slaves, and admitting that it provides for their reclamation when it says they “shall be delivered up on claim,” I still impeach the Fugitive Slave law for high crimes and misdemeanors against the spirit and the letter of that instrument.

On the question of the constitutionality of this law, the legal minds of the country are divided. It may not be easy to distribute opinions correctly, on this point, into their proper classes, and to decide upon their relative preponderance. If we include slave owners and those whose pecuniary interests connect them directly with slavery, and especially if to those we add a strong party who, from political associations and hopes, have surrendered themselves to a pro-slaverypolicy, probably the number, if not the weight, of opinion, is in favor of the constitutionality of the law. But if we gather the opinions of disinterested and unbiased men; of those who have no money to make or office to hope for through the triumph of the law, then I think the preponderance of opinion is decidedly the other way. I know it has been said by one prominent individual, that he has heard of no man, whose opinion was worth regarding, who denied the constitutionality of the law. Now, as it is a fact universally known, that gentlemen who have occupied and adorned the highest judicial stations in their respective states, together with many of the ablest lawyers in the whole country, have expressed opinions against the constitutionality of this law, I have but one single word of reply to a declaration so arrogant and insolent as this. That reply is, that on a great moral and political, as well as legal question,—a question that connects itself with ethics, as well as with partisan politics, and the success of old parties or the formation of new ones,—integrityis as necessary to the formation of a sound opinion asintelligence.

I think, however, that one further remark should in candor be made, in regard to the difference of opinions held by honest men on this subject. The constitutionality or unconstitutionality of the Fugitive Slave law is not a question to be determined solely by any single and simple provision of the fundamental law. Numerous clauses in the constitution have a bearing upon it. It connects itself with contemporaneous history. It presents a case where commentators and expounders must appeal to precedents and analogies, and to general principles respecting the nature of government and the object of all law. It is therefore a question of construction and interpretation. And, what is a more important consideration still, it belongs emphatically to that class of cases where men, who have been trainedunder one class of institutions, and whose minds have been moulded and shaped by the universal prevalence of one set of opinions and one course of practice, may honestly come to one conclusion, while those who have grown up under adverse opinions and an adverse practice,—or rather, into whose minds adverse opinions and adverse practices have grown, until they have become a part of the very substance of those minds,—may honestly come to an opposite conclusion. We know, too, that in addition to the powerful influences of education and training, the general cast and structure of men’s minds predispose them to take one side or the other of great political and religious questions. Natural biases operate like a law of gravitation to sway different minds in different directions. When, therefore, a southern gentleman, into whose perceptions and reasonings and moral sentiments, the facts and the creed of slavery have been incorporating themselves ever since he was born, tells me that he believes even such a law as this to be constitutional, I can still concede the fulness of his integrity, however strongly I may dissent from the soundness of his opinion. It is a law that might be held constitutional by a bench of slaveholders, while it would be held unconstitutional by all the inhabitants of a free land. It is a law that might be held valid by the courts of Austria, while it would be held invalid by those of England. It is a law which the judges of Westminster Hall might have held valid in the time of the Stuarts, which they might and probably would have held invalid in the eighteenth century; and, in the nineteenth century, would certainly have reprobated and annulled.

My own opinion is, in view of the great principles of civil liberty out of which the constitution grew, and which it was designed to secure, that this law cannot be fairly and legitimately supported on constitutional grounds. I express this opinion because, afterhaving formed it with careful deliberation, I am now bound to speak from it, and to act from it. I have read every argument, and every article in defence of the law, that I could find, from whatever source emanating. Nay, I have been more anxious to read the arguments made in its favor than the arguments against it; and I think I have seen a sound legal answer to all the former. As for any arrogant or supercilious dictum, either that the law is constitutional or that it is not constitutional, unaccompanied by any reason or any reference, all reflecting men must regard it as sheer insolence, come from what quarter it may.

Even should the supreme court of the United States declare the law to be constitutional, then, though we must acknowledge their decision, as to the point decided, to be the law of the land, until it is set aside, yet, without any disrespect to that tribunal, we may still adhere to our former opinion. We know how that court is constituted. A majority of its members are from slaveholding states. Independent, too, of all other considerations, they will feel a strong desire to maintain a former opinion, which was also given when a majority of its judges were from the south. We may, therefore, place our dissent on grounds which, two years ago, when the “Clayton compromise,” so called, was under discussion, were so well stated by a distinguished senator from Ohio, [Mr.Corwin,]—grounds perfectly respectful on our part, and not derogatory to the court. He said,—

“It is a sad commentary upon the perfection of human reason, that, with but few exceptions, gentlemen coming from a slave state ... all eminent lawyers on this floor, from that section of the country, have agreed that you have no right to prohibit the introduction of slavery into Oregon, California, and New Mexico; while, on the other hand, there is not a man, with few exceptions, (and some highly respectable,) in the free states, learned and unlearned, clerical or lay, who hasany pretensions to legal knowledge, but believes in his conscience that you have a right to prohibit slavery.... How is this? Can I have confidence in the supreme court of the United States, when my confidence fails in senators around me here?Do I expect that the members of that body will be more careful than the senators from Georgia and South Carolina to form their opinions without any regard to selfish considerations?”

Besides, the supreme court have already, as I will show, decided certain points in such a way that, if they maintain the Fugitive Slave law, they will be obliged to overrule those points; and it is more creditable to them to suppose they will overrule their decision in Prigg’s case, than to suppose they will overrule other decisions in other cases.

In the first place, I believe the constitution not only authorizes but requires a trial by jury, in the case of alleged fugitive slaves, when claimed in free states.

The constitution declares, “The right of the people to be secure in their persons,” “against unreasonable” “seizures, shall not be violated; and no warrant shall issue but upon probable cause,supported by oath or affirmation, and particularly describing” “the persons or things to be seized.”—Amend., Art. IV.

It also declares, that, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”—Amend., Art. VII.

And it also says, “No person shall be deprived of life, liberty, or property, without due process of law.”Amend., Art. V. And it is most important to observe that these words, “due process of law,” are held by all the authoritiesto include the trial by jury.—3Story’s Com.661; 2Inst.50, 51; 2Kent’s Com.10; 1Tucker’s Black. App.304-5.

That there may be no doubt about the meaning and force of these words, I quote the following passage from Chancellor Kent:—

“It may be received as a self-evident proposition, universally understood and acknowledged throughout the country, that no person can be taken or imprisoned, or disseized from his freehold, or liberties, or estate, or exiled, or condemned, or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers. The words, ‘by the law of the land,’ as used by the Magna Charta, in reference to this subject, are understood to mean ‘due process of law.’ That is,by indictment or presentment of good and lawful men.”—2Com.13.

Now, in most of the cases which will arise under the Fugitive Slave law, there will be a “seizure” under a warrant; and inallthe cases, the questions both of property and of liberty will necessarily be involved. In every case, the claimant will aver property in the respondent, and will seek to deprive him of his liberty. The respondent will deny the claim of property, and will seek to retain his liberty.

Now, suppose a man to have lived in Boston or New York for twenty years; to have contracted marriage; to have bought and sold; to have hired himself out to others, and to have hired others to serve him; to have pleaded and been impleaded in the courts; to have voted at elections, and to be, in all respects, as free by the constitutions of Massachusetts and New York as the governors of those states themselves; and suppose further, that this man is suddenly seized and taken before a commissioner, is adjudged the property of another man like himself, with no chance of revising the decision, or of having a new trial, is placed in duress, and then transported by force, and against his will, to a distant state, under a claim that he is a slave, and an adjudication that such claim is true,—suppose all this, I say, and then answer me this simple question, Has, or has not, such a man been “deprived of his liberty”? In other words, does such a man retain his liberty? As he is borne away by force, and againstprayers, and tears, and struggles, does he remain free? Can a man be adjudged a slave; held, coerced, beaten as a slave; with all his powers and faculties of body and mind subdued and controlled as a slave’s, and yet possess or retain liberty? If such a proceeding does not deprive a man of his freedom, by what means can he be deprived of it? Whatmore, or whatother thingwould you do to deprive him of it? Would binding him out to serve for life deprive him of it? This declares that he owes service for life. Would imprisonment deprive him of it? This imprisons him, and makes the man his keeper who is interested to make that imprisonment perpetual in himself, and descendible to his children, and his children’s children forever.

Is not perpetual imprisonment of the nature and substance of punishment,—of the severest punishment? The constitution has provided that “cruel and unusualpunishmentsshall not be inflicted,” even for the perpetration of the worst of crimes; yet here is a case where the most cruel of punishments, or of privations, may be inflicted without even a charge of crime. And the argument is, that this form of punishment may constitutionally be inflicted, because it was so inconceivably atrocious and diabolical that the constitution did not prohibit it,—because the constitution only prohibited “cruel and unusual punishments”for crimes, and not for having a dark skin.

Does any one say that a victim of this law has not been “deprived” of his liberty because he may sue for it, and possibly recover it, in the courts of the state to which he is carried? I reply, that it would be just as good an answer to say, that he may possibly recover his liberty by escape, or possibly his master may emancipate him, or possibly a St. Domingo insurrection may break out, or possibly the walls of his prison-house may be shaken down by an earthquake, and he may go forth like Paul and Silas; andthereforehe is notdeprived of his liberty by being enslaved. Neither of these events would have the slightest legal relation to the proceedings which did enslave him. Neither of them would be retroactive, undoing or annulling the past. Enslavement and liberty being incompatible, when he suffers the first, though but for an hour, he is deprived of the last. The moment he should arrive within the limits of a slave state, that moment he would be in the same condition as three million other fellow-bondmen; and it would be just as rational to say that they have never been deprived of liberty as that he has not. When our government made war upon Algiers, ransoming American captives from their horrible bondage and restoring them to their homes, did it annihilate the preëxisting fact that they had been enslaved? Did it enable or authorize the historian to say that they had never beendeprived of their liberty? Had Algiers been “reännexed” as one of the states of this Union, could she have said, “We have not broken the constitution because these men are free again”? I affirm, then, that when a man in Massachusetts, who by the constitution of Massachusetts is free, is adjudged to be a slave, is transported as a slave, and held as a slave, in a southern state, though it be but for a single day, he is deprived of his liberty. That very thing is done to him which the constitution says shall not be done but by a jury of his peers.

But a question ofPROPERTYis involved as well as a question of liberty. “In suits at common law,” says the constitution, “where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”

Now, sir, in regard to this important clause in the fundamental law, I propose to demonstrate the three following propositions:—

First; the claim, made before a competent magistrate, for a “person held to service or labor,” is, in view of this constitutional provision, a “suit.”

Second; it is a “suit at common law.”

Third; it is a suit at common law “where the value in controversy exceeds twenty dollars.”

As a law term, the lexicographers define the word “suit” to mean “an action or process for the recovery of a right or claim; legal application to a court for justice; prosecution of right before any tribunal;—as a civilsuit, a criminalsuit, asuitin chancery.”

Blackstone says, “in England, the severalsuits, or remedial instruments of justice, are distinguished into three heads,—actions, personal, real, and mixed.”

“Suit” comes from “secta,” andsectafromsequor; and the phrase “to bring suit,” denoted anciently, to bringsecta,—followers, or witnesses, to prove the plaintiff’s demand. The scope of the word is now enlarged, so that it embraces the written forms by which an action is instituted, as well as the proof which sustains it.

We are not, however, confined to the authority of the dictionary. The supreme court, in the case ofCohensvs.Virginia, 6 Wheat. 407, where this very word “suit,” as it occurs in the constitution, was the subject of consideration, defined it as follows:—

“What is asuit? We understand it to be the prosecution, or pursuit, of someclaim, demand, or request. In law language, it is the prosecution of some demand, in a court of justice. ‘The remedy for every species of wrong is,’ says Judge Blackstone, ‘the being put in possession of that right whereof the party injured is deprived.’ The instruments whereby this remedy is obtained, are a diversity ofsuitsand actions, which are defined by the Mirror to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta express it, in the words of Justinian, ‘jus prosequendi in judicio quod alicui debetur,’—(the form of prosecuting in trial, or judgment, what is due to any one.) Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which it has a right.

“To commence a suit, is to demand something by the institution of process in a court of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue that demand.”

Now let me take the different clauses of this definition, and see if every one of them does not necessarily include the demand made by a slave claimant against the alleged slave.

“We understand a suit,” say the court, “to be the prosecution or pursuit of someclaim, demand, or request.” Here, then, according to the supreme court, asuitis the prosecution of someclaim; and, according to the very letter of the constitution, the fugitive slave is to be delivered up, onclaim. The slave, then, can be constitutionally and legally “delivered up” in no other way than “on claim,” by “suit.”

Again, say the court: “In law language, it [a suit] is the prosecution of some demand in a court of justice.” When legal process is instituted for the recovery of a slave, is it not the prosecution of a demand? And will any one be rash enough to say that a man ostensibly free,—free according to all legal presumption,—can be “delivered” over to bondage for life, without the intervention of “a court of justice”?

To proceed with the opinion of the court: “The Mirror defines a suit to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta express it, in the words of Justinian, it is the form of prosecuting in trial, or judgment, what is due to any one.” Here service is alleged to be due; and the one who is said to owe that service is “prosecuted by trial and judgment,” that he may render the service claimed.

“To commence a suit is to demand something by the institution of process in a court of justice; and to prosecute the suit is, according to the common acceptation of language, to continue that demand.” In the appeal to a court for the possession of an alleged fugitive,is not something “demanded”? And what is the warrant that is issued for his arrest but the “institution of process”?

If any one, then, will show that a “claim” for an alleged fugitive, by process of law, to be followed up by proof in support of the claim, and to be consummated by judgment, is not a “suit,” he must show that it is not “the prosecution or support of a claim;” he must show that it is not “the prosecution of some demand in a court of justice;” he must show that it is not “the lawful demand of one’s right;” nor “the form of prosecuting in trial or judgment;” and finally, he must show that it is not “to demand something by the institution of process in a court of justice,” and then “to continue that demand” until judgment is rendered for or against him.

But should the claimant of a fugitive slave show any one of these four things, he would show himself the way out of court.

And this brings me to thesecondproposition, namely,—

The claim for a person “held to service or labor” is, in view of the constitution, a “suit at common law.”

In a decision bearing directly on the right to a trial by jury, the supreme court has defined the phrase “suits at common law,” in special reference to its meaning in the seventh amendment to the constitution, where the right to such trial, “in suits at common law,” is secured. These are their words:—

“It is well known that in civil causes, in courts of equity and admiralty, juries do not intervene; and that courts of equity use the trial by jury only in extraordinary cases, to inform the conscience of the court. When, therefore, we find that the [seventh] amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the mindsof the framers of the amendment. Bycommon lawthey meant, what the constitution denominated in the third article, ‘law;’ not merely suits, which thecommonlaw recognized among its old and settled proceedings; but suits, in whichlegalrights were to be ascertained and determined, in contradistinction to those in which equitable rights alone were recognized, and equitable remedies were administered, or in which, as in the admiralty, a mixture of public law, and of maritime law and equity, was often found in the same suit. Probably there were few, if any states in the Union, in which some new legal remedies, differing from the old common law forms, were not in use; but in which, however, the trial by jury intervened, and the general regulations, in other respects, were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited, as examples, variously adopted and modified.In a just sense, the amendment, then, may well he construed to embrace all suits, which are not of equity or admiralty jurisdiction,WHATEVER MAY BE THE PECULIAR FORM WHICH THEY MAY ASSUME TO SETTLE LEGAL RIGHTS.”—Parsonsvs.Bedford, 3 Peters’s Rep. 456-57.

Here the court say, that the term “common law,” in the seventh amendment, meant what the constitution denominated in the third article, “law.” The word “law” which is here referred to, as contained in the third article, occurs in the following sentence: “The judicial power shall extend to all cases, inlawand equity, arising under this constitution, the laws of the United States,” &c. And the court declare that the constitutional right to a jury trial embraces “not merely suits, which thecommonlaw recognized among its old and settled proceedings, but suits in whichlegalrights were to be ascertained and determined,” in contradistinction from equity and admiralty cases.

And in the last sentence of the decision quoted, the court expressly say, that the seventh amendment embraces “all suits which are not of equity or admiralty jurisdiction,WHATEVER MAY BE THE PECULIAR FORMWHICH THEY MAY ASSUME TO SETTLE LEGAL RIGHTS.” The court say “ALL.” After excepting cases of equity and admiralty jurisdiction, they declare that the phrase, “suits at common law,” embracesallthe rest. They recognize no hybrid class, not included under one or another of these heads.

Now it has been proved above, that a warrant for the arrest of an alleged fugitive, together with the allegations and proofs under it, constitute a “suit.” And can any thing be more clear, than that a proceeding which decides the issue, whether a man “owes” or does not “owe;” which decides the issue, whether a man has “escaped,” or has not “escaped;” and which, as the legal consequence of these decisions, delivers one man into the custody of another as his slave, or enlarges one man from the custody of another because he is not his slave, is, “whatever peculiar form it may assume,” a proceeding “to settle a legal right,”—one of the highest and most important legal rights that appertain to a man? It is not, in legal language, a right “of equity or admiralty jurisdiction,” but exclusively and purely alegal right, and nothing else.

The court declare this to be so,whatever peculiar form the process may assume. But what gives peculiar pertinency and stringency to this decision of the court is, that at common law there was an original writ, called the writde homine replegiando,—the writ of personal replevin, or for replevying a man, by which the question of property in a man might be determined. It was a writ which the party could sue out of right; one to be granted on motion, without showing cause, and which the court of chancery could not supersede. In the very language of the supreme court, it was a writ recognized by the common law, and is to be found “among its old and settled proceedings.” The form of it is contained in that great arsenal of common law writs, theRegistrum Brevium.

“A man,” says Comyn, “may have ahomine replegiandofor a negro, or for an Indian brought by him into England and detained from him; or it may be brought by an infant against his testamentary guardian; orby a villein against his lord.”—(Dig., title Imprisonment, L. 4.)

If this writ could be brought “for a negro,” or “for an Indian,” by a man who had introduced him into England, and from whom he had been detained; and if, on the other hand, it could be brought by the negro, or by the Indian to gain his freedom, as was clearly the case, then it follows that the question of a right to a man, as well as that of human freedom, was a question familiar to the ancient common law, and for the trial of which a well-known process existed “among its old and settled proceedings.” But this ancient writ,de homine replegiando, carries with it, as every body knows, the trial by jury, as much as an action of assault and battery, or of assumpsit on a promissory note.

I have always understood, that before the revolution, and before the framing of our constitution, Comyn’s Digest, from which the above citation is made, was a work of the highest authority. It must have been well known to all the lawyers in the convention. Could they have intended that the mere fact of claiming a man as a slave,—which claim might be made against a freeman as well as against a slave,—should be sufficient to deprive him of this ancient muniment of the subject’s liberty? It seems impossible!

But we are not left to the broad and general assertion, contained in the case ofParsonsvs.Bedford, that the seventh article of amendment embraces “all suits” not of equity or admiralty jurisdiction, whatever the peculiar form which they may assume to settle legal rights. Authority exists still more pointed and direct. InBakervs.Riddle, Mr. Justice Baldwin,one of the judges of the supreme court of the United States, held that it was not in the power of Congress to take away the right of trial by jury, as secured by the seventh amendment; neither,—

“1. By an organization of the courts in such a manner as not to secure it to suitors; nor,

“2. By authorizing the courts to exercise, or their assumption of, equity or admiralty jurisdiction over cases at law.”

“This amendment,” says he, “preserves the right of jury trial against any infringement by any department of the government.”—Baldwin’s Rep.404.

Now, what are the tribunals created by the Fugitive Slave law but a new “organization of the courts”? or rather, the creation of new courts, “in such a manner as not to secure, [the right of trial by jury,] to suitors?” By it, Congress creates tribunals unknown to the common law, and purports to give them power over common law rights.

Having now proved, from the nature of the claim in controversy,—namely, the claim of one man to the personal services and the liberty of another man, and the counter claim of personal liberty and of self-ownership,—that the right in dispute between the claimant of an alleged fugitive, and the person claimed, is a common law right; and thatanylegal process to determine this right, “whatever form it may assume,” is a “suit at common law,” it only remains, under this head, to establish mythirdpoint, namely;

A claim toanyperson, as one “held to service or labor,” always and necessarily presumes that “the value in controversy exceeds twenty dollars.”

On this point, direct authority may be found in the case ofLeevs.Lee, 8 Peters’s Rep. 44. This was an appealed case, where by law no appeal could be taken unless “the value in controversy” should be “one thousand dollars or upwards.” It was objected thatthe appellants,—the petitioners for freedom,—were not worth a thousand dollars. But the court said,—

Back to Index Next