SPEECH
On the Fugitive Slave Law, delivered at Lancaster, Massachusetts, May 19, 1851, pending the Canvass for a Member of Congress for the Fourth Congressional District.
On the Fugitive Slave Law, delivered at Lancaster, Massachusetts, May 19, 1851, pending the Canvass for a Member of Congress for the Fourth Congressional District.
Fellow-Citizens;
We are assembled on a great occasion and for a great purpose. The election of a member of Congress, indeed, is not an extraordinary event; but it is extraordinary that principles of the most vital importance to the honor of Massachusetts, and to the cause of human liberty throughout the world, should be involved in a local election. Such, however, is now the fact.
Gentlemen, the assertion and the recognition of the rights of man have made great progress among the nations of Europe within the recollection of many who are now before me. Notwithstanding the partition of Poland by allied robbers, and the obliteration of that kingdom from the map of Europe; notwithstanding Hungarian subjugation to Austrian despotism, and many other atrocious crimes against humanity, such as nations only can commit; for they are too vast and monstrous to be perpetrated by any individual,—I say, notwithstanding these facts, the great fabric of human liberty has been rising in Europe, while the solid structures of despotism have been disintegrating and making ready for their fall.
But truth compels me to acknowledge that, during the last three quarters of a century, our course, in this country, has been downward. While among the other nations of Christendom the altar-fires of libertyhave been kindling and burning with a brighter flame, ours have been waning. At the foundation of our government an institution existed amongst us utterly irreconcilable with the fundamental principles of the government itself. But it was then limited in its extent, and its spirit nowhere existed in great intensity. Even those who cherished it most were ashamed of it; and in those provisions of the constitution which were designed for its temporary protection, a common regard for decency forbade the mention of its name. Fatally to our own peace and honor, that which was then regarded as temporary and local, now threatens to be abiding and universal. From speaking of slavery with hushed breath, its bold abettors now shout forth its praises. From providing for the extermination of the African slave trade, they have converted the slave states into another Africa, this side the tropics; and by the successful robbery of a neighboring republic, they seek to create a new America, so that the slave trade, once abolished and declared piracy, may be revived and legalized. The Middle Passage is to be transferred from the ocean to the land. Maryland, Virginia, Kentucky, &c., are to be the Gold Coast, Benin, and the Galinas; the place of supply, the place of demand, and the highways of commerce between them are to be within our own borders and protected by the American flag; and that horrid traffic which all the leading nations of Christendom united in declaring to be a felony punishable with death, is now to be maintained and defended amongst ourselves, under penalty of death and a dissolution of the Union.
Nor does it suffice that the tide of slavery should rise and overflow the vast and uninhabited regions of the west. It surges up against the free states themselves, and all the dikes and barriers of that constitutional law which we have been enacting for seventy-fiveyears, cannot stay its flood. We thought that Massachusetts was the impregnable citadel of freedom; but unconstitutional and inhuman laws, dictated by slaveholders, are now enforced amongst us, and at our very doors; and our services are commanded for their execution.
Thank God, there is a part of our people who, while they suffer, resist. Only a portion amongst us have reached that lowest depth of degradation, where they surrender, not their limbs only, but their wills, to the hateful service of their masters. Slavery has done its perfect work only when the soul is enslaved. I rejoice to believe that we have not only seven thousand in this our Massachusetts Israel, who have not bowed the knee to Baal, but seven hundred thousand; and recent events foretell not only an increasing number, but a more determined opposition.
Why is it, fellow-citizens, that Massachusetts stands first, or among the first, in 1851, in her hostility to the Fugitive Slave law? I answer, for the very reason that she stood first in her hostility to the encroachments of the British crown in 1776. And in less than seventy-five years from this time, those who oppose and those who defend this inhuman law, will stand, historically, as wide asunder, and will share as high an honor or suffer as deep an ignominy, as is now awarded to the lovers of freedom and the minions of power who lived at the era of the revolution. Let all young men beware not to be seduced by any temptations of immediate profit or mistaken honor, to lift a hand in defence of this law. If they do, then, before they have lived out half their lives, they will be as ready as old Cranmer to thrust the offending member into the flames, and to say with him, “This hand, this wicked hand, has offended.”
Gentlemen, we in Massachusetts are a Union-loving, and law-abiding people. Mr. Webster and his “retainers”may spare their breath in exhorting us to abide by the Union. Such a work, in this commonwealth, is a work of supererogation. He knows, and they know, that the number of disunionists in this state can be counted on a man’s fingers and toes. Whatever influence they exert must flow from their zeal, their talents, and their private character; for they derive none from numerical force. Were they all to settle in one of our small towns, they would be out-voted by its inhabitants. I regard these ever-repeated appeals made to Massachusetts men and to New England men to stand by the Union, as not merely obtrusive, but as affrontive and insulting. Besides, when a man undertakes the mission of going round the country, preaching honesty, or temperance, or chastity, he provokes the inquiry whether he is more honest, temperate, or continent than those whom he exhorts. If the union of these states now is, or has ever been verging towards a point of danger, it is solely and only because ambitious men and mercenary men at the north have given it that direction by recognizing southern threats and bravadoes as realities, and thus encouraging them. Let the greatest coward see that his threats are acknowledged as verities, and he will adopt the cheap mode of threatening instead of the hazardous one of acting. Could the Chinese have frightened away the British fleet by their battery of wooden cannon, having the middle of the ends painted black for a muzzle, they would have been fools to incur the expense of brass or iron. But John Bull did not care whether the cannon were of wood or of metal, and at his first fire the Celestials scampered. But here, when a few men in a few states pointed their wooden guns at us, Mr. Webster, General Cass, and others, for their own ambitious purposes, cried out that the Union was in danger. I say, then, if the union of these states ever has been in any proximity to danger, it was not frommenaces uttered by the south, but from northern indorsement of them. If northern leaders had dishonored instead of indorsing this spurious paper, it never would have got into circulation.
We are not only Union-loving men, but, as I said before, we are law-abiding men. Had this not been so, not all the fleets and armies in the world could have carried Thomas Sims into bondage. So intimately blended is the reverence for law with the very soul of our people, that if you could convince them that a statute has legal force and is binding upon the conscience, I verily believe our juries would give a verdict in favor of Shylock, though the pound of flesh which he claimed were to be carved from their own bosoms. This side of a just cause for revolution, they will yield submission to all laws enacted by the government, with one single exception. The exception I mean, embraces those laws of men which are clearly contrary to the law of God. And I trust the time is not now, and never will be, when the children of the Puritans will obey any commandment of human origin if it conflicts with a divine command, though they have to lie down in lions’ dens or walk through furnace fires, as the penalty of disobedience.
But with this sentiment of reverence for law is another sentiment, which is its proper attendant and brother,—I mean a desire and a determination to know what that is which is calledlaw; what it is that claims this prerogative of controlling the will and challenging the conscience. It is in this spirit that they have discussed and mean to discuss the Fugitive Slave law, and to bring it, Protestant fashion, to the test of individual judgment and conscience.
I have no need to repeat to you the general provisions of this inhuman enactment. No lover of liberty can read them without having their atrocious character burned into his mind ineffaceably. Youknow that it assumes to dispose of the highest interests of human liberty,—the liberty of soul as well as the liberty of person;—and you know that it also assumes to dispose of the most precious interests of property,—the property that a man has in himself and in all his capacities of physical enjoyment and suffering as well as his property in his money or his goods;—without a single one of those safeguards and protections which the constitution of the country builds up like a rampart of defence around us all. This enactment, too, is no theoretic affair; it is no dead letter on the statute book. It is a living monster, uncaged and turned loose amongst us, to rob and devour at its will.
Now, I have two objections to this law, which absolve me from all obligations to execute it, or, in any way or manner, to assist in executing it. First, I believe it to be contrary to the law of God, which, God helping me, shall be the rule of my conduct, though I should scatter political treasons as the autumn wind scatters leaves. In his dread description of the judgment day, Jesus Christ makes the distinction between saints and sinners to turn upon the fact, whether they have fed the hungry, clothed the naked, and visited those who were sick and in prison. And who so hungry as those who do not own, and cannot own a morsel of bread? Who so naked as those who do not own, and cannot own a shred of a garment to protect them from cold, or from the lascivious eye? And what confinement was ever so hopeless as southern slavery, what prison was ever so deep as that prison-house which holds three millions of our fellow-beings within its melancholy walls,—them and their posterity forever? He that refuses the common acts of hospitality to these victims, when fleeing from their bondage, denies his Lord and Master. He that refuses them, disobeys every precept of the Savior, and has no more right tocall himself a Christian, than has the Fejee islander, when he rises from his cannibal banquet. He is the Levite who passes by on the other side.
And next, I hold this law to be contrary to the constitution of the United States, and therefore of no binding force upon my conscience or my conduct. I do not mean to say by this that I shall make forcible opposition to it. I take the Quaker ground upon this subject; I will not assist to execute it, though I shall suffer it to execute itself on me.
The constitutionality of this law has been extensively discussed. But there is this broad difference between the arguments of those who affirm and those who deny that it is constitutional. Those who deny it, argue the question upon its merits, upon principle, upon those legal relations and analogies that so nobly characterize the English law on the subject of human liberty. But those who affirm the constitutionality of the law, base their argument upon technicalities and upon precedents, and they cannot sustain themselves for a moment on any other ground. They found themselves, in the first place, upon the statutory precedent of 1793, which was an act passed with very little deliberation, as its history shows, and passed, too, when it was expected on all hands that slavery would soon die out. In the next place, they rely upon the judicial precedent of Prigg’s case, which was made by a bench of slaveholding judges, and some of the points which the court professed to decide did not arise in the case.
Now the statutory precedent covers only a part of the case; for some of the most hateful features of the law of 1850 are not to be found in the law of 1793; and the supreme court has never passed upon the law of 1850 at all. So two points are clear in the outset, that the champions of the law cannot get along withoutthe precedents, and the precedents, in several most important particulars, fail them altogether.[21]
This question has lately been discussed in our own vicinity. The liberty of a resident of Massachusetts,—a man every way entitled to a jury trial by our constitution and laws, as much as you or I,—has been sacrificed by a United States commissioner in the city of Boston.[22]He has decided in favor of the law. You would naturally suppose that, in order to shelter himself from the odium of such a decision, he would put all personal and all collateral resources into requisition to make the case as plausible as ingenuity can make it. It is said, too, that Mr. Webster and Mr. Webster’s friends, and the commissioner’s friends have contributed of their strength to help the debility of the case. While the cause was pending before him, one of the points involved in it was brought before the supreme court of Massachusetts, and also before the circuit court of the United States. The commissioner adjourned the case over after all the arguments of counsel were in. He thereby gave himself an opportunity for preparation and for consultation. I amtaking no exception to all this. I am glad it was done. I suppose we now have the breadth and length and strength of what can be alleged in favor of the law. I never feel so confident of my conclusions as when strong men have taken the opposite side, and have failed to sustain it.
Now, to this decision of the commissioner, made under such incitements, and with such opportunities, I propose to invite your attention. The discussion may be dry, but it will not be uninteresting; for it involves matters as important as the liberty of the body and the liberty of the will, and the liberty and life of the human soul.
It may be said that these are legal and constitutional questions, and, therefore, that unprofessional men cannot understand them. But most, if not all the points which I shall bring to your attention, are matters of intuition; questions wholly within the jurisdiction of plain common sense, and such, therefore, as can be decided by you as well as by lawyers or judges. And if I can convince you of the inconclusiveness of some parts of this decision, of the legal Jesuitism of other parts, and of the self-contradiction that pervades the whole, you will not hesitate to set it aside, not as null and void merely, but as discreditable to the profession of the law, and dishonorable to the State of Massachusetts.
The first point which the commissioner discusses is, whether in seizing, by his warrant, a man actually free, in deciding, by his judgment, the exact question, whether that man were a slave, and in sending him, by his certificate, where the lash and the law of slavery apply to his body and his spirit, he were exercising “judicial power,” as conferred by the constitution of the United States upon such courts asCongressshould establish. He at first decides that he doesnotexercise such power. This was well; for he knows that hewas never appointed, nor commissioned, nor sworn, nor is paid, nor removable from office for mal-conduct, as is prescribed by the constitution in the case of judges. Badly heroic as he was,in fact, in exercising jurisdiction over a human being, and delivering him over into hopeless and irremediable bondage, he was not mad enough to arrogate,in terms, the prerogative of “judicial power.”
But what says his superior, the attorney-general of the United States? In an elaborate opinion, given by order of the President of the United States,—an opinion which, as I suppose, passed under the supervision of the whole cabinet, and therefore may be presumed to have the authority of Mr. Webster and the other constitutional advisers of the President, and which certainly had the sanction of the President himself, for he acted upon it,—in this opinion the attorney-general says,—
“These officers, [the commissioners,] and each of them, havejudicial power, and jurisdiction to hear, examine, and decide the case.”“The certificate to be granted to the owner is to be regarded as the act andjudgmentof ajudicial tribunal, having competentjurisdiction.”“Congress has constituteda tribunal, withexclusive jurisdictionto determine summarily, and without appeal, who are fugitives from service.”“Thejudgmentof thetribunal, created by this act, is conclusive upon alltribunals.”
“These officers, [the commissioners,] and each of them, havejudicial power, and jurisdiction to hear, examine, and decide the case.”
“The certificate to be granted to the owner is to be regarded as the act andjudgmentof ajudicial tribunal, having competentjurisdiction.”
“Congress has constituteda tribunal, withexclusive jurisdictionto determine summarily, and without appeal, who are fugitives from service.”
“Thejudgmentof thetribunal, created by this act, is conclusive upon alltribunals.”
Now, which is right, the attorney-general, with the President and his cabinet as indorsers, or Mr. Commissioner Curtis? I submit to you that the former were clearly right, so far as this,—that when the constitution declares that “no person shall be deprived of life, liberty, or property, without due process of law,” (which imports a trial by jury,) then neither Adam Gibson, nor Thomas Sims, nor any other allegedfugitive can be so deprived, without trial by jury,and the judgment or sentence of the “judicial power” thereupon. The following position has never been answered, and I think never can be, namely, that if a resident of Massachusetts can be deprived of his “liberty and property,” without a trial by jury and a judgment of acourt, then he may be deprived of his life also; for “life, liberty, and property” are secured in the same section, in the same sentence, and by the same safeguard.
The attorney-general held that, as the power exercised by the commissioner was a “judicial power,” it deprived the party of all benefit from thehabeas corpus. And there was some plausibility in this, though, I think, no soundness. But our defenders of the law hold that this sending of a man into bondage is not a part of the “judicial power,” and yet that it deprives him of all benefit of thehabeas corpus. That is, they hold that a man may be deprived of his liberty and property, (and of course of his life,)by a ministerial proceeding, not having its origin in any court, and not to be prosecuted to final judgment in any court, and yet that all the courts in the land, competent to furnish relief in any other case, can afford none in this. If this be true, if a proceeding, held and acknowledged by the officer who initiates and conducts it to be a ministerial proceeding, not originated by a court, and never to be carried before a court, does thus take away the trial by jury, and the security of having one’s liberty and property adjudicated upon by a “court,” and renders the writ ofhabeas corpusan empty form, then, indeed, we may bid “farewell, a long farewell” to all our liberties. An unprincipled majority of Congress has only to pass a law that any man may be imprisoned or hanged on an executive warrant, and that the hireling marshal or commissioner shall suffer no “molestation by any process issued by any court,judge, magistrate, or other person whomsoever,” and despotic power will be enthroned here as effectually as it ever was in England in the bloody days of the Stuarts. Jeffries was at least a judge, though he acted like a commissioner.
Who could have imagined, eight months ago, that aministerialproceeding could put a citizen beyond remedy or reach of ourcourts?
I now come to a position in the commissioner’s argument which is not only transparently fallacious, but is contradicted by himself, in the same opinion, again and again. I shall offer a series of objections to it.
The point was pressed upon him by counsel that he was exercising “judicial power.” To maintain this, a passage was quoted from Prigg’s case, in which the court say, “A claim made by the owner out of possession for the delivery of a slave ... constitutes, in the strictest sense, a controversy between the parties, and a case arising under the constitution of the United States, within the express delegation of judicial power, given by that instrument.” Can any thing be more explicit and conclusive, to prove that the commissioner was then presuming to exercise a part of the “judicial power” conferred by Congress exclusively upon courts? And how does he answer it? In this way, and in this way only. He says the court decide two points:—
First,—That a claim for a fugitive slave is a case arising under the constitution of the United States, and so within the grant of “judicial power” as given by the constitution; and
Second,—“That being such a case, belonging to the judicial power of the Union, it was for Congress to regulate and prescribe the remedy, the form of proceedings, and the mode and extent in which the judicial power of the Union should be called into activity.”
He then declares his full admission ofboththesepropositions. And how does he answer thefirstone, which, at a blow, unseats him from his usurped bench? He says, “The counsel for the prisoner have insisted most strenuously on the first of these positions, but have said nothing with regard to the second.” And what need had the counsel to say any thing about the second,the first being admitted? The supreme court had said, and he acknowledged it, that every case like the one then before him was a “case arising under the constitution of the United States, within the express delegation of judicial power given by that instrument.” This was equivalent to saying that it was a case which could not be adjudicated upon by a commissioner, because a commissioner is not a judge,—is no court nor part of a court. The plain statement of the commissioner’s language is this: The supreme court declare that I have no jurisdiction in this case; but because the counsel said nothing about another point to be found in the opinion of the court, therefore I will take jurisdiction.
But again; this reply of the commissioner, that the counsel said nothing about the second point, (when he had acknowledged the validity of the first, which was fatal,) is not merely an evasion; it is founded upon a false meaning attributed by him to the second point. He says the court held that it was “for Congress to regulate and prescribe the remedy, the form of proceedings, and the mode and extent in which the judicial power of the Union should be called into activity.” Suppose it was for Congress to do this. Might they not transcend their power when doing it? and does not his admission of the first point prove that they have transcended their power?—the very point then in question. The two things cannot stand together. If the trial of the issue, “fugitive slave or not,” be, “in the strictest sense,” “within the express delegation of judicial power given” by the constitution, then thisministerial commissioner cannot exercise it, and Congress cannot empower him to exercise it. Besides, the decision of the court was made in 1842. The law, whose constitutionality they had then under discussion, was passed in 1850. Did the court in ’42 declare, or could they declare, that any lawthereafterpassed by Congress on this subject should be held constitutional? Did their decision act prospectively, and adjudge a law to be constitutional, which was to be passed eight years afterwards? So far from this, the points then under discussion,—namely, the power of a commissioner to adjudge a case more important than life or death, and the obligation of a commissioner to hearex parteevidence, and to be concluded by it when heard,—these questions did not come before the supreme court in ’42, and have never been before the supreme court at all. But because that court had said, years before, that it belongs to Congress to prescribe the mode of recovering fugitive slaves,therefore, says the commissioner, if Congress should vest this power in commissioners, (and in slave traders or pirates just as well,) it would be valid. And because the counsel did not answer this point, the commissioner decides an admitted point, conclusive in their favor, against them.
But this is not all. After declaring, in the first part of the opinion, his full conviction that the delivery of an alleged fugitive comes within “the express delegation of judicial power,” he uses, farther on, the following language: “It would seem,” says he, “that it only remains to inquire whether the act of 1850 authorizes or requires any thing more than a summary ministerial proceeding in aid of the right secured by the constitution, namely, the right of removal.” And he holds that it does not. The act which, in the first part of the opinion, was acknowledged to belong, “in the strictest sense,” to the “judicial power,” has nowceased to be “any thing morethan a summary ministerial proceeding.”
And again he says, “I have endeavored, in the foregoing discussion, to show that this is a summary ministerial proceeding,” &c. “If this be so,and I can entertain no doubt that it is,” &c. This sudden transmigration from a judge to an executioner, from one who acknowledged that the delivery of an alleged fugitive is an act of “judicial power,” to one who holds that it isNOT“any thing morethan a summary ministerial proceeding,” may suit a disciple of Pythagoras, or the priests of the Hindoo religion, but it ill becomes an expounder of American jurisprudence.
I proceed to another point in the commissioner’s decision, namely, the nature and authority of “judicial power;” and when I have discussed it, I shall submit to your good sense whether I do him any injustice in saying that it is most perspicuously fallacious and lucidly absurd.
“In all governments formed upon the English model,” says he, “there is a certain class of inquiries, [powers?] judicial in their nature, but which are confided to officers not constituting a part of the judiciary, strictly so called.” (I do not like this substitution of the word “inquiries” for “powers.” If any thing under heaven should be called apower, the prerogative of sending a human being, presumptively free, into bondage, is surely one.) He then instances certain officers in Great Britain, who, though not judges, perform, as he says, certain judicial functions. A brief remark will suffice for this. Great Britain, having no written constitution, the current of its legislative enactments and its judicial decisions makes its constitution. If, then, it has been the prevailing practice of that government to confer any given description of powers upon any given class of officers, then that is what the British constitution allows and approves.
But we have a written constitution, and therefore are not to tolerate a law, (as in the case of this Fugitive Slave law,) which is repugnant to its fundamental provisions. By this constitution, all legislative powers therein granted are vested in Congress; executive power in a President, and judicial power in the courts. The constitution of Massachusetts is equally explicit. It says, “In the government of this commonwealth the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.”
In both these constitutions, the three functions of government, namely, to legislate, to adjudicate, and to execute, are expressly recognized; and thewholeof their distinctive powers are lodged in separate departments. No mention is made of any hybrid or mongrel class, half judicial and half executive, or half ministerial and half judicial, or compounded of aliquot parts of each. Such an officer, under either constitution, would be a monster; he would hold the same relation to their legitimate functionaries that Caliban does to the human race; and, if created for executing the Fugitive Slave law, that half devil and half beast would be the fitting prototype.
The commissioner professes to have found a class of cases, both under our state and national constitutions, where powers, “judicial in their nature, and special in their purpose, may be confided to the determination of officers who are not judges.” On this point he has expended himself. Here lay the pressure and travail of his case. Seeing that, in deciding the great issue before him, “slave or free,” he was exercising judicial power, and in ordering an armed forceto convoy the victim to his house of bondage he was exercising ministerial or executive power, (thus blending the functions which both constitutions have separated,) the commissioner felt that he must find some analogy or some precedent to cover up this obvious violation of all principle, or his argument was in ruins. It is in ruins; for he has found no such precedent, and cannot find any.
The instances he cites from Massachusetts are,—1. Sheriffs, who may preside over juries when assessing damages for laying out highways, and may decide such questions of law as arise on the trial; 2. Auditors, who may examine vouchers and state accounts between parties, and make report thereof to the court; 3. Commissioners of insolvency, appointed to distribute insolvent estates; and, 4. County commissioners, who lay out highways.
Now, nothing can be clearer than that, in no one of these cases does the officer named exercise “judicial power.” Indisputably, universally, and necessarily, by force of the phrase itself, the term “judicial power” embraces the idea of apowerwhose decision can be enforcedin invitum; that is, against an unwilling, contesting, resisting party. The sublime power of a court becomes nothingness, and is ridiculous, if its decrees cannot be executed to the very death of the party against whom they are made. For this purpose, they are backed by all the civil power of the state; and should this prove insufficient, they are backed by all the military power of the state; and, even beyond this, by the whole military and naval power of the United States. Without this, judges are but puppets, or no better than “men in buckram.” “Judicial power” does not consist in a sheriff’s presiding over a jury, nor in an auditor’s casting up accounts, nor in a commissioner’s ciphering out the dividends of an insolvent’s estate, nor in county commissioners’ laying outroads; but it consists in entering up a judgment which has the armories at Springfield and Harper’s Ferry, which has the standing army and militia of the United States, which has fifty line-of-battle ships, which has the treasury of the nation, to back it, and to visit with death one man, a thousand men, or a hundred thousand men, if need be, who shall confront it with resistance.
Look, fellow-citizens, at this wretched sophistry. The sheriff must make return of the verdict of the jury to the court of common pleas,—which is aCOURT,—and if either party suggests good grounds of dissatisfaction, the whole proceeding is a nullity, and the investigation must be made again; and again and again, and ten times again, until every act and letter of it become unexceptionable. The auditor must make his report to the court that appointed him, and if the court see cause, they set aside both it and him. The acts of the commissioners of insolvency derive all their validity from the consent of the parties, or from the judgment of a court, which substitutes the force of law for consent. And no act of the county commissioners, in taking a man’s land, is worth the paper it is written on, until the verdict of the jury is returned to thecourtof common pleas, and there formally accepted and recorded. Nay, every intelligent farmer in the country knows the fact, that though the commissioners have laid out a new road, or ordered an old one to be shut up, still, if a party, feeling himself aggrieved, demands a jury, the former cannot be worked, nor the latter closed, until thecourtof common pleas shall have passed upon the proceeding and ratified it.[23]
If, however, in all the above cases, the parties in interestconsentto the acts of sheriff, auditor, or commissioner, then those acts become binding, by virtue of such consent. The party consenting is afterwards estopped from questioning them. But they derive no authority from any “judicial power” vested in the officers performing them. We have a case more exactly in point, and better illustrating the principle, in the fourth section of the ninety-seventh chapter of our Revised Statutes, where it is provided, that “in actions upon promissory notes and other contracts, where the amount due appears to be undisputed, the debt or damages may be assessed and ascertained by the clerk, either under a general order of the court, or by a special reference of the case to him; and the judgment, in either case, shall be entered in the same form as if it had been awarded by the court, on an assessment or computation made by themselves.” Yet who will pretend that this act of the clerk, which is performed only where there is no dispute between the parties, emanates from any “judicial power” in that officer?
The instances cited under the United States constitution have, if possible, still less plausibility. The commissioners appointed by the courts can initiate certain proceedings, by holding parties to trial, &c., but this function is no morejudicialthan that of the grand jury in finding an indictment. It is a preliminary to a judicial act, but not such an act. The commissioners are not even required to be sworn, and, in many instances, it is known they are not sworn.
So of the case of which so much is attempted to be made,—that of the commissioner of patents. Any party feeling himself aggrieved by any of his decisions can appeal directly to the courts of the United States for redress.
Compare all this with analogous instances in the legislative department of government. The legislaturesof most of the states have created commissions to revise their codes of statute law. Massachusetts has had several such. Our revised statutes are a monument of the labor of one of these commissions. But were they legislators?Was their proposed code of any validity until enacted by the Senate and House of Representatives?Just as much as the acts of sheriff, auditor, or commissioners of the different kinds, were acts of judicial power, and no more. Are the selectmen of our towns legislators, because they decide, in the first instance, who are elected as members of our House of Representatives? Are our governor and council legislators, in both the state and national governments, because, on an examination of votes transmitted to them by the selectmen, they issue certificates of election to our state senators and to the members of Congress elect? Do they exercise any part of that power which makes “each house the judge of the elections, returns, and qualification of its own members”? Just as much, I reply, as sheriff, auditor, commissioner, or clerk, does of “judicial power.” They perform acts preliminary or antecedent to legislation, but no legislative act; just as the above-named classes of officers perform acts preliminary or antecedent to judicial decisions, but never, in any case, the authoritative and compulsory judicial act itself.
The strength, or rather, the weakness, of the commissioner’s argument, on this point, consists in the obtrusive, projecting, self-shouting fallacy of using the exact, technical, constitutional phrase, “judicial power,” as synonymous with the popular expression, “a judicious act,” or “the exercise of judgment.” Officers of all kinds exercise “judicial power,” in this broad and popular sense of the phrase; that is, they perform acts requiring good judgment. Umpires, arbitrators, and referees perform acts precisely like those of judges, but they cannot put the whole physicalstrength of the government in motion to enforce them. So sheriffs decide upon the identity of the party named in their precepts; postmasters, to whom they shall deliver letters, and what postage they shall demand; custom-house officers, upon the nature and value of dutiable goods; assessors, in levying taxes; parents and teachers, on matters of discipline, &c., &c. In a popular sense, they may all be said to exercise judicial power; but no particle of that power which, by the fundamental law of our government, is vested in the “courts.” Their acts are all examinable by the courts. They cannot set the arm of the government in motion to execute their judgments. Indeed, the whole argument of the commissioner on this point is but a play upon words. It is only a trick of verbal legerdemain. The premises he starts with are unknown to the constitution, and the conclusion he comes to is abhorrent to humanity.
Does not every body see that, in order to make the cases parallel, in order to obtain any legitimate ground of comparison between them, Sims should have had the same power of appealing from the commissioner’s decision, to a court, which power of appeal belongsof rightto a party who feels aggrieved by the act of sheriff, auditor, or commissioner; and that the certificate should bind him only by his voluntary assent?
But there is another point in the commissioner’s opinion which is worthy to be companion to this. I proceed to consider it.
He repeats, and keeps repeating, that his decision, dooming Sims to all the horrors of bondage, and putting him under the control of a man who claims title to his body and his soul, to be carried into a jurisdiction where such titles are acknowledged, is not “FINAL.” It is notfinal, he says, because if Sims be free, he may extort that freedom from the laws of Georgia which has been denied to him by the laws ofMassachusetts; that is, if the judgment which the commissioner is giving against a free man, in a free state, is a false judgment, he may go to a slave state to obtain redress,—which is ten thousand times worse than if a jury, in a capital case, should say, We may find this prisoner guilty; for if he be wrongfully hanged, God will make him amends.
Besides the inhumanity of this position, it contains a fallacy which is twin-brother to the one just considered. The judicial word, “final,” has a legal, technical, and certain meaning. In the courts, and in the law books, it means the last judgment in a judicial proceeding. It means that judgment from which a party cannot appeal, though he may ever so much desire it; or it means that judgment, after which, however dissatisfied the party may be, he cannot have his cause retried or reheard by a court,but is compelled to submit.
“Final judgments,” says Blackstone, “are such as at once put an end to the action.” This is a precise description of the judgment rendered by the commissioner against Sims. That victim resisted by prayers and tears, by the subduing eloquence of his counsel, and by their irresistible logic, which the commissioner has never yet begun to answer. But the self-constituted judge was inexorable. Though he knew that, according to the terms of the Fugitive Law, there was no escape from his decision; though he knew that his certificate was to protect the man-hunter from all “molestation by any process issued by any court, judge, magistrate, or other person whomsoever,” yet, like Pilate, he washes his hands and says, “I am innocent of this man’s blood, see ye to it;” for my decision is not “final.” And why? Because, in another jurisdiction, in another suit, where the plaintiff is to be defendant, and the defendant plaintiff, or perhaps against another party; in a place, too, where all thecommon-law presumptions in favor of freedom are reversed; where the law is different, and the rules of evidence are different; and where the respondent himself is reduced to the condition of a chattel and a brute, a decision, at some indefinite future period, may be had that the man, whom the commissioner now declares to be a slave, is free, and has always been so. Because of this future and contingent event, because of this almost impossible possibility, the commissioner’s decision is notfinal. I deny this. The decision isfinal, because, as Blackstone says, it “at once puts an end to the action.” But let us test the question, not only by its legal definition, but by its actual effects. It decides that Sims is a slave. It decides that he owes service to James Potter. It decides that Potter and his heirs and assigns forever are the lawful owners of Sims and the heirs of his bondage forever; and when Sims and his posterity shall be scourged, torn, flayed, mutilated, starved, the only consolation which the commissioner has for him and them is, Shall the clay say to thePotterthat fashioneth it, What makest thou? It not only decides that Sims is a slave, and that he shall be sent to Georgia, but it sendsfamiliars, like those which once disgraced even the purlieus of the Inquisition, to see that the devilish deed is done.
The whole argument of the commissioner, that this act of his is notfinal, is founded on a quibble,—on the use of the legal word “final,” as though it were synonymous with the popular wordeternalorperpetual. The slavery of Sims may not beeternalorperpetual; because, by some miracle of God, or otherwise, he may escape. But in a technical and juridical sense the decision of the commissioner isfinal; and he might as well doom a man to be hurled from the Tarpeian rock, and say that the act is not final, because he only commits the victim to the laws of gravitation, as he has committed Sims to the laws of Georgia.
If by any possibility this doctrine, that the decision is notfinal, could be for a moment sustained, then I will submit a case with which to compare it.
The constitution says, “No state shall pass any law impairing the obligation of contracts.” Here we have a constitutional basis,—the same as for the reclamation of fugitive slaves. Some states have passed laws impairing the obligation of contracts, as the stop-laws of Kentucky, and so forth. Suppose a Massachusetts creditor to claim to have a Kentucky debtor, whose contract has been so impaired. Could Congress, in order to give efficacy to this constitutional provision, authorize this pretended creditor to go to Kentucky, seize enough of the alleged debtor’s property to satisfy the alleged debt, and carry it home, or have it ordered home by a magistrate, under some “summary” process, which, on its face, excludes the trial by jury; and thereby debar the supposed defendant of all right under that provision of the constitution which gives a jury trial when the value in controversy exceeds twenty dollars? And could the Kentucky magistrate, in the supposed case, deny the jury trial on the ground that the proceeding before him was not “final,” because the defendant might follow the plaintiff to Massachusetts, and there institute an action of replevin, trespass, or trover, to try, before a jury of the country, the right of the former plaintiff to the property he had seized?
The commissioner says much in different places, with the apparent hope of showing that the proceeding before him was only for what he calls a “limited and special purpose,” namely, “removal.”
I confess myself unable to understand why the certificate of the commissioner is any more restricted to a limited and special purpose than any judicial act, sentence, or execution, of any court whatever. The commissioner declares aprima faciefreeman to be a slave.He declares that James Potter owns Thomas Sims, and the posterity in his loins forever; or that Thomas Sims and his posterity forever, owe service to James Potter and his heirs and assigns forever. Does this “forever” limit the meaning of the certificate, as to time? If so, then ageneralorunlimitedaward or execution, against Sims, as contradistinguished from thislimitedandspecialone, must extend and run into the next world. When our courts decide that one man owes another man money, they award execution against his property, with certain humane exemptions as to clothes, furniture, provisions, school books, Bible, &c. But when this commissioner decided that Sims owed Potter service, he awarded a certificate against the adjudged debtor, which made no exemption whatever; but included property, clothes, books, skin, flesh, heart, brain, soul, and all that was in him, or of him, with all appurtenances and appendages, present emblements, and future increase. Yet, according to the commissioner, the first judgment is a common or general one; the last “special and limited.” Under our old laws, (and under the laws of some states yet,) courts could sentence offenders to the barbarous punishment of flogging. But they were and are bound to specify the number of lashes. This is general. The commissioner delivers over a slave to be flogged by his master,ad libitum, andin perpetuum, to be flogged in his own person, and to be flogged in the persons of his children, and their posterity,in secula seculorum. The defined flogging of thirty-nine, or such other number of lashes as can be computed, the commissioner calls general or indefinite. But the incomputable number of lashes; the vast, unknown, algebraic quantity; the infinite series; that which Newton with all his mathematics could not compass, nor Rosse with his telescope see the end of,—that is “special and limited.” The taking of a limitedamount of a man’s property, carefully set down in dollars and cents, both in the text and in the margin of the execution, the commissioner calls a general purpose. But the robbing of a man, not only of all he has earned, but of all his capabilities of earning as long as he breathes, with full authority to do the same thing to his posterity to the latest generation, this is “special and limited.” To sentence a man to be hanged by the neck till he be dead, though with privilege of priest, prayer book, and Bible,—this, too, is general and proper; though in Massachusetts it can be done only by a majority of the judges of the supreme court. But to send a man to be worked to death in five years on a sugar plantation, where his being taught to read the gospel of Jesus Christ is a felony,—this is “special and limited,” and so may be done by any hireling commissioner who will do what Judas did for one third part of his silver pieces.
Fellow-citizens, I submit to any man, clerical, legal, or lay, who is capable of appreciating moral distinctions, whether this whole doctrine, about delivering a man up as a slave, and putting him bodily into the hands of the claimant, and thrusting him into slave jurisdiction, under the pretext that it is done only forthe special and limited purpose of removal, be not atrocious. It is more like a forgery than an argument. Assumed learning and logic never practised a greater imposition upon themselves, nor attempted a greater one upon others, than when they fabricated this notion, that adjudging a man to be a slave, stripping him of hisliberam legem, that is, of all his rights and immunities as a citizen, and delivering him into actual bondage, is “for a special and limited purpose of removal,”—only to give him a voyage, or a pleasure excursion of a few hundred miles,—out,—but not back. When the successor of St. Peter, claiming to hold the keys of heaven, and to have death and hellfor his ministers, excommunicated whole sects and peoples, and delivered them over to the great soul-hunter, and sent hisfamiliarswith them to see that the “claimant” suffered no “molestation” while conveying them to the bottomless pit,hemight as well have said that he did it only for a “special and limited purpose.” It was not damnation, it was only “removal.” And do you suppose the devil, could he have got possession of those outcast souls, would have cared any more under what pretence the great pontiff commissioner made the delivery, than does the southern slaveholder, when he gets possession of a man of whom he can make a slave?
This fallacy about the “special and limited purpose of removal” did not originate with Mr. Commissioner Curtis. I exculpate him from that guilt. He only adopted it and gave it a “bad eminence” by making it, in part, the basis of his decision. But henceforth let the people brand it. Let them classify it and denounce it, and detest it, as belonging to that impious and blasphemous kind of arguments by which our first parents were beguiled, when Satan told them that, though they sinned against God, they should not die; or by which Mr. Webster cajoled and cozened so many honest men, when he assured them, that though they should violate the moral law, by opening all the territories to slavery, yet some physical law of geography or the weather would avert the penalties.
In the absence of all decent materials for an argument, the commissioner resorts to that ten times exploded position, that there is an analogy between fugitives from justice and fugitives from service. Where could he find a bandage of prejudice thick enough to blind him to the distinction, that the condition of delivering up the former is that he bechargedwith crime, while the condition of delivering up the latter is that he beheldto labor, and that heowesservice? How can it besaid that a manowesservice, until thefactof theindebtednessbe proved? Such reasonable suspicion of guilt as justifies a grand jury in finding a bill of indictment is sufficient in the one case, but such positive proof as would require the court to enter up judgment and award execution is absolutely necessary in the other. The government demanding a fugitive from justice seeks possession of him for a trial,before a court and jury, of the question ofcriminality; but the claimant of an alleged fugitive from service seeks possession of him to avoid a trial,before a court and jury, of the question offreedom. The constitution requires that every person accused of crime shall be tried in the state and district where the crime shall be charged to have been committed; but it makes no such provision in regard to the alleged fugitive from service; and this injunction in the one case, and omission in the other, create the irresistible inference, that there is a difference between them, and that the alleged fugitive from service, according to all the analogies of the common law, is to be tried where he is found.
But there is one distinction which is broad enough and luminous enough to make a blind man see it. An alleged fugitive from justice is not adjudged to be a criminal previous to delivery, nor is he made a criminal, in the eye of the law, by the act of delivery. But the alleged fugitive from service is adjudged a slave, and made a slave by the certificate of the commissioner. The state receiving a fugitive from justice does not proceed forthwith to punish him. But the receiver of an alleged fugitive from serviceownshim, and may proceed to control him, and beat him, and rob him, and starve him, on the very instant that the commissioner puts the certificate into his hands. If any one cannot see this distinction, no act of the moral oculist can give him sight.
The papers inform us that when Sims was landedin Savannah, he was taken to jail and received the “usual reprimand,” which, as every body knows, is a flayed and blood-streaming back. By whose certificate was the nine-thonged cat laid on? Had he been a murderer or a pirate, would excoriation have been the first act of welcome on his arrival? No! Murderers and pirates would have had a jury. The law is beneficent to them; it saves its terrors for the slave. A man who will notseesuch a distinction as this, would excite no pity should he be made tofeelit.
In treating this topic, the commissioner makes one assertion that seems insane. He says that, to authorize the delivery of a fugitive from justice, in order to his removal, “it must be proved that he has committed a crime.” Such a declaration was never made before, and I do not believe it will be ever made again. You could not find a lawyer south of Mason and Dixon’s who would venture to say this. Every body knows that the supposed criminal needs onlyto be chargedwith crime. It is the alleged slave who must be proved tobe heldto service before he can be constitutionally surrendered. But as though this was not absurd enough, the commissioner goes on to say, that though the alleged fugitive from justice must be proved, in the place where he is taken, “to have committed a crime,” yet, after his removal, he must be proved again to have committed it. How can a man be proved, in any legal way, to have committed a crime, without being confronted with the witnesses against him? Why, after having been so proved, is he put upon trial again?
As to all the commissioner says in denial of the right of trial by jury, I shall make but one or two remarks. I have argued that question elsewhere; and, until I see some answer to that argument, I have no occasion for repetition or corroboration of it. After using the word “person” some twenty times, to signifythe President of the United States, electors, senators, representatives, United States officers, Indians, Africans, &c., the constitution declares that “nopersonshall be deprived of life, liberty, or property, without due process of law;”—this “due process of law” meaning trial by jury. This is one fact. Adam Gibson, Henry Long, Thomas Sims, and many others, some of them now acknowledged on all hands to have been free, have been sent into slavery without this trial. This is another fact. Now put these two facts together. No man shall be deprived of liberty or property, except by the jury trial. These men have been deprived of liberty and property without the jury trial. These are the two ends. Now fill up the space between them with what you please, and call it argument, law, gospel, or what you will, every body must see that it is nothing, and can be nothing but Mephistophiles’ jugglery. I dismiss this point with a single proposition: In Massachusetts, we know no legal distinction founded on color. Through all the gradations, from the person who has the preternatural whiteness of an Albino to one whom you can see in the darkest midnight, because he is so solid black,—all,all, under our constitution and laws, are alike freemen, or alike slaves. Notwithstanding the commissioner’s decision makes us all slaves, yet I maintain that, in the eye of the law, we are all free. How then can any one of us freemen be robbed of liberty and property, and turned into a slave, but by freeman’s proof,—that is, trial by jury? I acknowledge that after we have been proved to be slaves by freeman’s proof, then all the unutterable consequences of slavery follow, of course; just as when a man has been proved to be a murderer, the consequences of murder follow. ButUNTIL, mark this,UNTILa man has been proved to be a slave by freeman’s proof, he remains legally free. And a magistrate who takes jurisdiction of aproceeding by which a man may be deprived of liberty or property, without freeman’s proof, prejudges his victim, when he allows the first witness to be called, or the first paper to be read; and he might just as well do it, in a case of “life,” as in a case of “liberty and property.”
The next position of the commissioner which I shall notice relates to the right of Congress to make use of state courts to execute United States laws.
Now we have the express authority of the supreme court of the United States for saying that “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 Wheaton, 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. But the commissioner refers to a passage in Prigg’s case, in which it is said that “while a difference of opinion exists ... whether state magistrates are bound to act under it, [a law of Congress,] none is entertained by the court, that state magistrates may, if they choose, exercise the authority, unless prohibited by state legislation.”
Waiving all exceptions to this doctrine, the utmost that can be made of it is this: that state magistrates may execute a law of Congress, unless forbidden by a law of their state; but when so forbidden, they cannot; and Congress can neither compel them to do so, nor annul a prohibitory law of the state, by givingvalidity to the act of the magistrate, performed in violation of the state law. Now mark thenon sequiturof the commissioner’s logic. See how his premises belong to one subject, and his conclusion to another. Because aMassachusettsmagistrate may execute a law of Congress, unless the Massachusetts legislature forbid him, but if so forbidden he can no longer do it, therefore, when the Massachusetts legislature has so forbidden him, Congress may send the magistrates of Georgia, or of any other state, into Massachusetts, to do what our own state had forbidden our own magistrates to do. I say “send the magistrates of Georgia here;” because Congress may just as well, and even better for us, authorize the magistrates of any state in the Union to come here, set up courts, and pass sentences which shall convey our citizens into bondage, as to stay at home and make records, which, when brought here, shall have the same effect. This, then, is the law-logic of the commissioner: Because a Massachusetts magistrate may aid in reclaiming an alleged fugitive on Massachusetts ground, unless forbidden by his state, yet, if so forbidden, then the legislatures of fifteen slave states may send their magistrates, or the acts of their magistrates here, to do the same thing. The state might prevent its own magistrates from aiding in this nefarious work, but this would be of no avail, for any one, or all, of fifteen sets of slave state magistrates may come and do the forbidden act.
Pierpont Edwards once said of a clergyman, that if his text had a contagious disease, the sermon would not catch it; and a blind man, being asked to describe his conception of color, compared it to a clap of thunder. But all their ideas were coherent and homogeneous compared with those premises and conclusions of the commissioner, by which the State Rights’ doctrine is expounded to mean, the right of onestatetosend its magistrates into another state, to do what the latter haslawfullyprohibited its own magistrates from doing. South Carolina never claimed so much as this.
Under the first head, where it had been urged by counsel, that a freeman might have no opportunity to prove his freedom in the state from which he was alleged to have fled, because the claimant was under no obligation to carry him to that state, but might send him to the Cuban or Brazilian market, the commissioner shuts his eyes to these very probable consequences, and refuses to consider them; but under the fifth head, where an argument in favor of the slaveholder could be derived from consequences, he not only argues elaborately from them, but bases his judgment upon them.
There are two remarks thrown out in the course of the commissioner’s opinion so shocking to every feeling of humanity, that any one, in commenting upon them, may well be excused for passing from the language of argument to that of emotion.
If there be any one right known to the common law more important and sacred than all others, it is the right of confronting and cross-examining the witnesses who are brought to testify against us. Without this right, there is no fraud that cannot be practised upon the most honest man, and no guilt that cannot be proved against the most innocent one. Doubtless this right of cross-examination is sometimes abused; but there are few spectacles more exciting or more gratifying than to see the demons of falsehood driven out, one after another, from a perjured villain, until the truth, at last, is wrenched from his heart, notwithstanding the double boltings and barrings with which he had locked it there. The fear of this cross-examination “casting its shadows before,” has prevented thousands and tens of thousands from swearing falsely. Next to honesty, this fear is the greatest protection to property, liberty, and life.
Now the testimony which doomed Sims to slavery, and which may doom any of us with our wives and children to slavery, when men grow, not more wicked, but only a little more bold in their wickedness than they are now, was whollyex partetestimony; taken, not merely behind the victim’s back, but a thousand miles behind his back; of which he had no knowledge, and, unless he were omniscient, like God, could have no knowledge. And when the counsel of Sims urged upon the commissioner the enormity of this outrage against all principle, what was his reply? It was this, and it makes a man’s blood run cold to read it: Sims’s absence from Georgia, “so that he could not be served with notice, if he was entitled to it, was in his own wrong, and he cannot now complain that he had no opportunity to cross-examine the witnesses.”
I appeal to all history to prove, that no judge who ever sat upon a bench where the common law was recognized and administered, however corrupt he may have been, ever advanced a more atrocious doctrine. Why, gentlemen, if a debtor absconds for the very purpose of defrauding his creditors, he must have notice before he can be proceeded against for the recovery of a debt. If he flees from the state, lurks and hides himself, he must have the best notice the court can contrive to give him. If the plaintiff recovers and takes out execution, he must file a bond conditioned to make restoration; and years afterwards, if the defendant shall come back and show cause; he shall be entitled to a review to annul the whole proceedings against him. Ay, when a criminal, a robber, a murderer, an incendiary, is brought to trial, even he must be “confronted with the witnesses against him, have compulsory process for obtaining witnesses in his favor, and the assistance of counsel in his defence.” And yet the commissionermakes proof out of nothing, thatSims escaped from slavery, and then, because of this nothing-made proof, he inculpates him with being absent “in his own wrong.”
The other point referred to arose from certain testimony, (if it can be called testimony,) that the mother of Sims begged the witness, “whether her son was in a free state or in a slave state, for God’s sake, to bring him back again.” “This,” says the commissioner, “certainly disarms the case of any unpleasant features”! Why, even the kine of the barn-yard, when the butcher cuts the throat of her young, will weep and low, and bellow, for days and days, and say, as well as in her inarticulate moanings she can say, “For God’s sake, let it be brought back again;” though the only consequence of its return would be to have its throat cut by the butcher again. And are we to expect that the brutalized, chattelized “cattle” of the south will have less of that natural yearning and longing of the soul, at the loss of their offspring, than the animals of the farmer’s yard? Can we suppose that God has not planted the instinct of a mother’s love too deep to be destroyed but by the destruction of the being herself in whom it was planted? No! debase the mother as you will, by ignorance, vice, superstition, lust, concubinage, incest, and this wealth of affection will still glow at the bottom of her heart, “rich as the oozy bottom of the deep in sunken wrack and sumless treasures.” And because this mother’s love had not been all extinguished, the commissioner says that his sending a human being into the abyss of bondage, on evidence that an intelligent barbarian would reject, “certainly disarms the case of any unpleasant features.” But I shall not expostulate with the commissioner. A man must have a heart before he can feel, as he must have eyes before he can see.