Produced by Meredith Bach, Odessa Paige Turner and the
Online Distributed Proofreading Team at https://www.pgdp.net
(This book was produced from scanned images of public
domain material from the Google Print project.)
A
LETTER
TO
THE HON. SAMUEL A. ELIOT,
REPRESENTATIVE IN CONGRESS FROM THE CITY OF BOSTON,
in reply to his
APOLOGY FOR VOTING FOR THE FUGITIVE
SLAVE BILL.
BY HANCOCK
BOSTON:
WM. CROSBY & H. P. NICHOLS,
111 WASHINGTON STREET.
1851.
CAMBRIDGE:
METCALF AND COMPANY,
PRINTERS TO THE UNIVERSITY.
A LETTER, &c.
SIR;--
An English courtier procured a colonial judgeship for a young dependant
wholly ignorant of law. The new functionary, on parting with his patron,
received from him the following sage advice,--"Be careful never to
assign reasons, for whether your judgments be right or wrong, your
reasons will certainly be bad." You have cause to regret that some
friend had not been equally provident of your reputation, and intimated
that it was only expected of you to vote for Mr. Webster's measures, but
by no means to assist him in vindicating them. You did, indeed, vote
precisely as those who procured your nomination intended you should;
yet, on your return home, you found your name had become a byword and a
reproach in your native State. Another election approached, but you
declined submitting your recent course to the judgment of the electors,
and withdrew from the canvass. But although the people were thus
prevented from voting against you, they persisted in speaking and
writing against you. Anxious to relieve yourself from the load of
obloquy by which you were oppressed, in an evil hour you rashly appealed
to the public through the columns of a newspaper, and gave the "reasons"
of your vote for the Fugitive Slave Law. You had a high and recent
example of the kind of logic suited to your case. You might have
indulged in transcendental nonsense, and talked about the climate,
soil, and scenery of New England and the wonders of physical geography,
and, assuming that negroes were created free, you might have contended
that, in voting for a law to catch and enslave them, you had avoided the
folly of reenacting the law of God. Reasons of this sort, you and others
had declared, "had convinced the understanding and touched the
conscience of the nation." Instead of following an example so
illustrious and successful, you assign "reasons" so very commonplace,
that the most ordinary capacity can understand them, and so feeble, that
the slightest strength can overthrow them.
Your first "reason" is, that the delivery of fugitives is a
constitutional obligation. By this you mean, that, by virtue of the
construction of a certain clause in the Constitution by the Supreme
Court, Congress has the power to pass a law for the recovery of fugitive
slaves. Well, Sir, does this constitutional obligation authorize
Congress to pass _any_ law whatsoever on the subject, however atrocious
and wicked? Had you voted for a law to prevent smuggling, in which you
had authorized every tide-waiter to shoot any person suspected of having
contraband goods in his possession, would it have been a good "reason"
for such an atrocity, that the collection of duties was "a
constitutional obligation"? You are condemned for voting for an
arbitrary, detestable, diabolical law,--one that tramples upon the
rights of conscience, outrages the feelings of humanity, discards the
rules of evidence, levels all the barriers erected by the common law for
the protection of personal liberty, and, in defiance of the
Constitution, and against its express provisions, gives to the courts
the appointment of legions of slave-catching judges. And your "reason"
for all this is, that the delivery of fugitives is "a constitutional
obligation"! The "obligation" is not in issue. Please to understand,
Sir, that it is not denied. It is for the _manner_ in which you profess
to have discharged the obligation that you are censured, and be it
remembered, that not one of the obnoxious provisions of your law is
required by the Constitution. You go on and attempt to enlighten your
constituents as to the history of this constitutional obligation. As the
obligation affords you no apology for the iniquitous features of your
law, its history is, of course, mere surplusage, and serves no other
purpose than to divert the attention of your readers from yourself.
About two thirds of your apology is occupied with an historical
disquisition, which has as much to do with your vindication as the
question respecting the existence of a lunar atmosphere. I will not,
however, withhold from you whatever benefit you may derive from either
your logic or your history, but will give each a fair and honest
examination. You inform the public that, at the time the Constitution
was formed,
"Slavery had been abolished in some of the States, and still
existed in others. Here seemed an insurmountable incompatibility of
interests, and nothing perplexed the wise men of that day--and they
were _very_ wise men--so much as this topic. At last they agreed
that the new Constitution should have nothing to do with it; that
the word _slavery_ should not be mentioned in it, and that it
should be left to the States themselves to establish, retain, or
abolish it, just as much after the adoption of the Constitution as
before. But in order to secure the existence of the institution to
those States who preferred it, it was agreed that the persons
escaping from labor to which they were bound, in one commonwealth,
and found in another, should be returned to the State from which
they had fled. The provision was necessary for the preservation of
this interest _in statu quo_. It did not extend slavery. It kept it
where it already was, and where it could not have continued if
every slave who escaped North was at once free and irreclaimable.
The members of the confederacy from the South saw this distinctly,
and _deliberately declared_ that they could not and would not enter
a union with States who would tempt away their slaves with the
prospect of immediate and permanent freedom.... The Constitution
was adopted with this provision, and it could not have been adopted
without it."
Thus we learn from you, Sir, that when the Constitution was formed,
"slavery had been abolished in some of the States." It is a pity you did
not vouchsafe to tell us which of the States had thus early and
honorably distinguished themselves. Of the thirteen American States in
1787, how many, Sir, had _by law_ abolished slavery? NOT ONE. Your "some
States" consisted of MASSACHUSETTS alone. And how was slavery abolished
there? Not by any express prohibition in her constitution, nor by any
act of her legislature. Fortunately, her constitution, like that of most
other States, contained a general declaration of human rights, somewhat
similar to the "rhetorical abstraction" in the Declaration of
Independence. Two or three years before the Federal Convention
assembled, a young lawyer, perceiving that the declaration in the
constitution had inadvertently made no exclusion of the rights of men
with dark complexions, brought an action for a slave against his master
for work done and performed. An upright and independent court, not
having the fear of our Southern brethren before their eyes, decided that
the slave was a MAN, and therefore entitled to the rights which the
constitution declared belonged to _all_ men, and gave judgment for the
plaintiff. In this way, Sir, was slavery abolished in Massachusetts, and
hence the delegates from Massachusetts in the Convention were the only
ones who represented a _free_ State. And now, Sir, what becomes of your
"insurmountable incompatibility of interests" arising from the fact that
"slavery had been abolished in some States and still existed in others,"
which you tell us so much perplexed the wise men of that day? We shall
see, Sir, that on questions touching human bondage the Massachusetts
delegation seem to have been slaveholders in heart, and did not partake
of the perplexity which troubled the wise men. With the exception of
that delegation, there were not probably half a dozen members of the
convention who were not slaveholders.
It would seem from your historical review, that the clause in the
Constitution respecting fugitive slaves was the grand compromise
between the North and the South, without which "the Constitution could
not have been adopted"; and that to this clause we owe our glorious
slave-catching Union. You fortify this wonderful historical discovery by
appealing to the "deliberate declarations" of Southern members, that
they "would not enter a union with States who would tempt away their
slaves," &c. It is to be regretted that you have not deemed it expedient
to refer to the records of these declarations, as other students of our
constitutional history are wholly ignorant of them. Suffer me, Sir, to
enter into a few historical details, for the purpose of vindicating the
liberty I take to differ with you as to the accuracy of your statements.
The Convention met in Philadelphia, 25th May, 1787. On the 29th of the
same month, Mr. Randolph, of Virginia, submitted a plan of government.
It contained no allusion to fugitive slaves. On the same day, Mr.
Charles Pinckney, of South Carolina, submitted another plan. This last
provided for the surrender of fugitive criminals, but was silent about
fugitive slaves. On the 15th of June, Mr. Patterson, of New Jersey,
submitted a third plan. This also provided for the surrender of
fugitives from justice, but not from bondage. On the 18th, Mr. Hamilton
announced his plan, but the fugitive slave found no place in it. On the
26th of June, the Convention, having agreed on the general features of
the proposed Constitution in the form of resolutions, referred them to
"a committee of detail," for the purpose of reducing them to the form of
a Constitution. In these resolutions, there was not the most distant
allusion to fugitive slaves. On the 6th of August, the committee
reported the draft of a Constitution, and yet, strange as you may deem
it, the provision without which, you tell us, the Constitution could not
have been adopted, was not in it, although there was in it a provision
for the surrender of fugitive criminals. For three months had the
Convention been in session, and not one syllable had been uttered about
fugitive slaves. At last, on the 29th of August, as we learn from the
minutes, "It was moved and seconded to agree to the following
proposition, to be inserted after the 15th article: 'If any person,
bound to service or labor in any of the United States, shall escape into
another State, he or she shall not be discharged from such service or
labor in consequence of any regulation subsisting in the State to which
they escape, but shall be delivered up to the person justly claiming
their service or labor,' _which passed unanimously_." Really, Sir, I
find in this record but little evidence of the perplexity which
distressed our wise men, or of the great compromise between the North
and South, on which you dwell. The 15th article, referred to above, was
the article providing for the surrender of fugitives from justice, and
this suggested the idea, that it would be well to provide, also, for the
surrender of fugitive slaves. In an assembly consisting almost
exclusively of slaveholders, the idea was exceedingly relished; and
without a word of opposition, the suggestion was unanimously adopted.
From Mr. Madison's report we learn that, the day before, Messrs. Butler
and Pinckney had informally proposed that fugitive slaves and servants
should be delivered up "like criminals." "Mr. Wilson [of Penn.]. This
would oblige the Executive of the State to do it at the public expense.
Mr. Sherman [of Conn.] saw no more propriety in the public seizing and
surrendering a slave or servant than a horse." (_Madison Papers_, p.
1447.) The subject was here dropped. The next day the motion was made in
form, and, as Mr. Madison says, "agreed to, _nem. con._" From the
phraseology of the motion, and the objections of Messrs. Wilson and
Sherman, it was perfectly understood that the obligation of delivery was
imposed on the States, and that no power was intended to be conferred on
Congress to legislate on the subject. Messrs. Wilson and Sherman's
objections arose from no moral repugnance to slave-catching, but from
the inconvenience they apprehended the _State_ authorities would be
subjected to; and Mr. Wilson perhaps spoke from experience, as his own
State had at that very time a law for catching and returning fugitive
slaves from other States. The idea, therefore, that this agreement was a
_compromise_ between the North and South is wholly imaginary, and you,
Sir, must have mistaken some recent fulminations from the Southern
chivalry for the "deliberate declarations" which you suppose were made
in the Convention. Believe me, Sir, no members of the Convention ever
declared they would not enter into the Union, unless it was agreed to
surrender fugitive slaves, for the obvious reason, that the Northern
slaveholders required no threats from their Southern brethren to consent
to a compact convenient to both. It is very true, Sir, that there were
compromises, and that there were "deliberate declarations," but they had
no reference to the surrender of runaway slaves. I have pointed out your
historical mistake, not because it has the remotest bearing on your
justification, but because you seem to think that it has.
The first great compromise was between, not the North and the South, but
the small and the large States. The one claimed, and the other refused,
an equality of suffrage in the national legislature. It was at last
agreed, that the suffrage should be equal in one house, and according to
population in the other. This was the first compromise. Then came the
question, What should constitute the representative population? The
Southern States had more slaves than the Northern, and the former
insisted that slaves should be included in the representative
population. This would have given the Southern States an unfair
preponderance in Congress. Moreover, a portion of the Southern States
were engaged in the African slave-trade, and, of course, every slave
landed on their shores would increase their political power in Congress.
To reconcile the North to slave representation, it was offered that
_direct taxation_ should be proportioned to representation. But the
North was reluctant, and, as usual, was bullied into a compromise. Mr.
Davie, of North Carolina, made a "deliberate declaration":--"He was
sure that North Carolina would never confederate on any terms that did
not rate them (the slaves) at least as three fifths. If the Eastern
States meant, therefore, to exclude them (the slaves) altogether, the
business was at an end." (_Madison Papers_, p. 1081.) This threat, and
others like it, settled the matter. The compromise, of three fifths of
the slaves to be included in the representative population, was accepted
on the motion of _a New England member_; and the consequence is, that
the slave States have now twenty-one members in the lower house of
Congress more than they are entitled to by their free population. This
was the second compromise. There was still a third, far more wicked and
detestable, and effected by the "deliberate declarations" of Southern
members. The "committee of detail" has been already mentioned. It
consisted of Messrs. Rutledge of South Carolina, Randolph of Virginia,
Wilson of Pennsylvania, Ellsworth of Connecticut, and Gorham of
Massachusetts. This committee, it will be recollected, were to reduce to
the _form_ of a Constitution the resolutions agreed on by the
Convention. Neither in the resolutions themselves, nor in the
discussions which preceded their adoption, had any reference been made
to a guarantee for the continuance of the African slave-trade.
Nevertheless, this committee, of their own will and pleasure, inserted
in their draft the following clause:--"No tax or duty shall be laid by
the legislature on articles exported from any State, _nor on the
migration or importation of such persons as the several States shall
think proper to admit, nor shall such migration or importation be
prohibited_." To understand the cunning wickedness of this clause, it
must be recollected that Congress was to have power to regulate foreign
commerce, and commerce between the States; and hence it might, at a
future time, suppress both the foreign and domestic commerce in human
flesh, or it might burden this commerce with duties. Hence this artfully
expressed perpetual restriction on the power of Congress to interfere
with the traffic in human beings. As this grand scheme was concocted in
the committee, and not in the Convention, it may be interesting to
inquire into its paternity.
In the debates which ensued on this clause, Mr. Ellsworth, one of the
committee who reported it, "was for leaving the clause as it now stands.
_Let every State import what it pleases._ The morality or wisdom of
slavery are considerations belonging to the States themselves. _What
enriches a part enriches the whole_, and the States are the best judges
of their particular interests. The old Confederation had not _meddled_
with this point, and he did not see any greater necessity for bringing
it within the policy of the new one." "As slaves multiply so fast in
Virginia and Maryland that it is _cheaper_ to raise than to import them,
whilst in the _sickly_ rice-swamps foreign supplies are _necessary_, if
we go no farther than is urged [a proposal to permit the trade for a
limited time], we shall be unjust towards South Carolina and Georgia.
Let us not intermeddle." (_Madison Papers_, pp. 1389, 1391.) This
gentleman was one of your "very wise men"; and his mantle has recently
fallen upon other wise men from the East. Mr. Wilson, another member of
the committee, objected. "All articles imported," said he, "are to be
taxed; slaves alone are exempt. This is, in fact, a bounty on that
article." The clause was referred to another committee, who modified it,
by limiting the restriction to 1800. It was moved to guarantee the
slave-trade for twenty years, by postponing the restriction to 1808.
This motion was _seconded_ by Mr. Gorham, another member of the
committee. Mr. Randolph, also of the committee, was against the
slave-trade, and opposed to any restriction on the power of Congress to
suppress it. Two of the committee, then, we find, were against the
trade, and three, Messrs. Rutledge, Ellsworth, and Gorham, for
perpetuating it. And now, Sir, what were the inducements which prevailed
on the two wise men from the East to yield their consent to a
proposition so wicked and abominable? We are, of course, not informed
what passed in the committee, but we can well imagine, from the language
used by the chairman and others in the Convention. Said Mr. Rutledge,
"If the Convention thinks North Carolina, South Carolina, and Georgia
will ever agree to this plan [the Federal Constitution] unless their
right to import slaves be untouched, the expectation is VAIN. The people
of those States will never be such fools as to give up so important an
interest." In other words, "Gentlemen of the North, no Union without the
African slave-trade." Said Mr. Charles Pinckney, "South Carolina can
never receive the plan [of the Constitution] if it prohibits the
slave-trade. In every proposed extension of the powers of Congress, that
State has expressly and watchfully excepted that of meddling with the
importation of negroes." (_Madison Papers_, p. 1389.) Mr. Charles C.
Pinckney "thought himself bound to declare candidly, that he did not
think South Carolina would stop her importations of slaves in any short
time." Thus you see, Sir, that the "deliberate declarations" to which
you allude were made in reference to the continuance of the African
slave-trade, and not, as you suppose, to the catching of fugitive
slaves. Two New England gentlemen of the committee yielded to these
declarations, and sacrificed conscience and humanity for the sake of the
Union, and the consideration that what enriched a part enriched the
whole. Happily, in this case, Southern bluster was met by Southern
bluster, and it is owing to Virginia, and not to the virtue and
independence of New England, that the Constitution was rescued from the
infamy of granting a solemn and perpetual guarantee to an accursed
commerce.
In Virginia, the slaves, as Mr. Ellsworth remarked, multiplied so fast,
that it was _cheaper_ to raise than import them. She was then, as now, a
breeding State for the Southern markets. Hence, her delegates were as
ready to bluster for protection, as the South Carolina delegates were
for a free trade in men and women. Of course, the _motives_ assigned
were patriotic, not selfish. Mr. Randolph "could never agree to the
clause as it stands. He would sooner RISK THE CONSTITUTION." (_Madison
Papers_, p. 1396.) Mr. Madison would not consent to the continuance of
the traffic till 1808. "Twenty years will produce all the mischief that
can be apprehended from the liberty to import slaves. So long a term
will be more dishonorable to the American character, than to say nothing
about it in the Constitution." (_Madison Papers_, p. 1427.) Mr. Mason
from Virginia denounced the traffic as "infernal." (_Madison Papers_, p.
1390.) The result of all these threats on each side was, as usual, a
compromise, by which Congress was prohibited from suppressing the
foreign and internal commerce in slaves for twenty years, and was left
at liberty to do as it might see fit, after that period. After twenty
years the foreign trade was suppressed, and North and South Carolina and
Georgia remained in the Union! Virginia, as well as the other Slave
States, is greatly interested in the home slave-trade, and that has
_not_ been suppressed, although Congress has full power over it.
It does not appear from Mr. Madison's report what reply was made in the
Convention to the Virginia objections, but in his speech in the
Convention of his own State, he tells us,--"The gentlemen from South
Carolina and Georgia argued in this manner: We have now liberty to
import this species of property, and much of the property now possessed
had been purchased or otherwise acquired in contemplation of improving
it by the assistance of imported slaves. What would be the consequence
of hindering us in this point? The _slaves_ of Virginia would rise in
value, and we should be obliged to go to your markets." (_Elliott's
Debates_, III. 454.) Certainly, Sir, these South Carolina and Georgia
delegates were "very wise men," and their predictions are now history,
and the planters of Georgia, South Carolina, Mississippi, and Louisiana
buy slaves of the Virginia breeders. But what shall I say of the wise
men from the East? This horrible compromise, this guarantee of the
African slave-trade for twenty years, was carried by the votes of the
Massachusetts and Connecticut delegates, and would have been defeated,
had they had the courage and virtue to have voted against it.
I have indulged in this long digression, to show that the clause in the
Constitution respecting fugitive slaves was not, as you represent it,
the great compromise of the Constitution, the key-stone of the Union,
and that our slaveholding fathers were not, as you suppose, greatly
perplexed, nor their consciences deeply wounded, by the existence of
slavery in all the States of the confederacy with one exception. Having
disposed of your history, I return to your logic.
Whether the constitutional injunction to surrender fugitive slaves was a
compromise or not, is of no practical importance. The clause speaks for
itself, and prescribes no mode by which the title of the claimant shall
be ascertained, while it expressly implies that the title shall be
established before the surrender is made. Hence, the fair presumption
is, that the title to a MAN shall be proved, with at least as much
certainty and formality as the title to a horse. Had you, Sir, in your
law, provided that a Virginian shall not come to Boston, and there seize
and carry off a husband, wife, or child but by the same process, and on
as strong evidence, as he may now seize and carry off a horse which you
claim as your own, instead of finding your name a byword and a reproach,
you would have been honored and applauded by your fellow-citizens, and
returned to Congress by a triumphant vote; nor is there a syllable in
the Constitution which prohibits or discountenances such a mode of
deciding the title to a human being. It is in vain, then, Sir, that you
plead your "constitutional obligation" in justification of your most
detestable law. But, as if one wrong could justify another, you plead in
your excuse the law of 1793, and you ask in your simplicity of those who
condemn your law if they do not perceive that they are "denouncing their
fathers." Well, Sir, were our fathers infallible? Pity it is, Sir, that
you were not on the floor of Congress when that body declared the
African slave-trade to be PIRACY. You might then, Sir, have risen in
your place, and inquired, "Do you not perceive that you are denouncing
your fathers, who were very wise men, and who guaranteed for twenty
years the very traffic which you now proclaim to be piracy?" Pity it is,
Sir, that you did not stand by the side of your patron on Plymouth Rock,
and whisper in his ear, "Do you not perceive that you are denouncing our
fathers?" when he declared, "In the sight of our law the African
slave-trader is a PIRATE and a FELON, and in the sight of Heaven an
offender beyond the ordinary depth of human guilt." Mr. Webster is
better versed in constitutional history than you are, and he well knew
that some of our fathers "deliberately declared they would not enter a
Union" in which they were to be debarred from pursuing this piratical,
felonious, guilty traffic. Our fathers were mostly slaveholders, and yet
you, Sir, unconsciously denounce both their morality and intelligence,
when you affirm the institution of slavery to be "wrong and unwise." And
yet all who presume to find fault with your cruel, unjust, wicked law
are guilty forsooth of denouncing their fathers!
You tell us that the Convention of 1787 "_agreed that the new
Constitution should have nothing to do with slavery_." I have not been
so fortunate as to find the record of this agreement, but if such a
compact was indeed made, then seldom, if ever, has a solemn covenant
been more grossly and wickedly violated. Is it, Sir, in virtue of this
agreement, that you voted to fine and imprison every conscientious,
humane citizen who may refuse, at the command of a minion of a
commissioner, to join in a slave hunt? Did this agreement confer on the
holders of slaves an enlarged representation in Congress? Was it in
pursuance of this agreement that the importation of slaves was
guaranteed for twenty years? Did this agreement authorize the Federal
government to enter into negotiations with Great Britain and Mexico for
a mutual surrender of runaway slaves? Was it in pursuance of this same
agreement, that our government negotiated with Russia and Spain to
prevent emancipation in Cuba,--a traitorous conspiracy with despots
against the rights of man? How, Sir, was this agreement illustrated,
when Daniel Webster, as Secretary of State under John Tyler of glorious
memory, made a demand on Great Britain for the surrender of the slaves
of the Creole, who had gallantly achieved their liberty, and taken
refuge in the West Indies? How comes it, Sir, that under this agreement
an act of Congress secures to the Slave States officers in the navy in
proportion to the number of their slaves? How is it, that under this
agreement colored men are seized in the District of Columbia, under "the
exclusive jurisdiction" of the Federal government on the _suspicion_ of
being slaves, and, when that suspicion is rebutted by the non-appearance
of any claimant, are sold as slaves for life, to pay their jail-fees?
Perhaps it would be denouncing our fathers, to say that Messrs. Webster
and Cass may search the archives of Austria in vain for any act so
utterly diabolical as this, perpetrated by a government which it was
agreed "should have nothing to do with slavery." Was it to carry out
this famous agreement that the Federal government officially declared
through its Secretary, Mr. Calhoun, that Texas was annexed to preserve
the institution of slavery from the perils that threatened it?
Once more, Sir. We all know that the slaveholders regard the free blacks
as dangerous to the subordination of their slaves, and are contemplating
their forcible removal. Think you, Sir, Mr. Webster was mindful of the
agreement you have discovered, when, on the 7th of last March, in his
place in the Senate, he proposed his magnificent scheme of taxing the
whole nation untold millions to give additional security to property in
human beings? "If," said the Massachusetts Senator, "any gentleman from
the _South_ shall propose a scheme of colonization to be carried on by
_this government_ upon a large scale, for the transportation of free
colored people to any colony or _any place in the world_, I should be
quite disposed to incur almost any degree of expense to accomplish the
object." The magnitude of the scheme, and the cost at which it is to be
accomplished, are thus hinted:--"There have been received into the
treasury of the United States EIGHTY MILLIONS of dollars, the proceeds
of the sales of the public lands ceded by Virginia. If the residue
should be sold at the same rate, the whole aggregate will exceed TWO
HUNDRED MILLIONS of dollars. If _Virginia and the South_ see fit to
adopt any proposition to _relieve_ themselves from the free people of
color among them, they have my free consent that the _government_ shall
pay _them_ any sum of money out of the proceeds which may be adequate
for the purpose." Will you, Sir, please to point out the article of the
agreement of 1787, which, while it restricts Congress from having any
thing to do with slavery, sanctions an appropriation not exceeding two
hundred millions of dollars, for the purpose of strengthening the
institution of slavery, by _relieving_ the slaveholders from the
presence of free people of color, and forcibly transporting to any place
in the world hundreds of thousands of native-born Americans, who have as
good a constitutional right to the pursuit of life, liberty, and
happiness on their native soil, as Mr. Webster himself? Mr. Webster, it
seems, now views the subject of negro colonization in precisely the same
light that he did thirty years since, although his _intentions_ on this,
as on various other points, have undergone marvellous changes. We learn
from a Massachusetts paper (_Congregationalist_, 6 July, 1849), that
this gentleman was in 1822 appointed by a public meeting to draft a
constitution for the State Colonization Society. After considerable
discussion in the committee he rose and said, "I must leave. I
understand the whole project. It is a scheme of the slaveholders to get
rid of their free negroes. I will have nothing to do with it."
And how, Sir, as a member of Congress, have _you_ fulfilled this
agreement to have nothing to do with slavery? Not only have you required
"good citizens," when commanded, to hunt and catch slaves, but you have
even fixed a money value on every slave. If a master fails to recover
his fugitive slave through the agency, "direct or indirect," of any
citizen, you give him an action for damages. In all other cases of
trespass, the damages sustained by the plaintiff are assessed by a jury
according to the evidence. You kindly save the master the trouble of
proving the value of his lost property, and give him out of the pockets
of the defendant $1,000, no matter whether the slave was sick or well,
young or old. If a woman escapes with a child at the breast, the master
is to have $2,000! Recollect, Sir, this is for _damages_ to the
slaveholder; the trespasser is to pay to the government, which was to
have nothing to do with slavery, another thousand dollars, and to be
incarcerated six months. Either, Sir, you have wholly mistaken the
nature of the "agreement," or the slaveholders, through the aid of their
Northern auxiliaries, have, in defiance of the agreement, rendered the
Federal government a mighty engine in protecting, extending, and
perpetuating the stupendous iniquity of human bondage.
Your first excuse for voting for the recent slave-catching law, after
relying on your "constitutional obligation," is, that it is
"_practically more favorable to the fugitive than the law of 1793_"!!!
The Southern lawyers, then, who drafted the bill, were a set of
blunderers, and your constituents are blockheads for blaming you for
legislating against human rights, when, in fact, you were loosening the
bonds of the oppressed, and facilitating escape from the prison-house.
Your assertion may well excite astonishment at the South as well as the
North, till your _proof_ is known, and then, indeed, astonishment will
be exchanged for ridicule. You tell us, "the _evidence_ of such an
assertion may be found in the fact, that by the old law every magistrate
in Massachusetts, amounting to several hundreds, and so in the other
States, were authorized and required to cause the arrest of any
fugitive, examine into his case, and deliver him to the claimant, if he
was proved to be a slave; while under the new law that power is
_limited_ to the justices of the United States' courts, and to the
commissioners appointed by them, not exceeding, perhaps, on an average,
six or eight persons in each State." So it seems the slave-catchers had
formerly no difficulty in finding a magistrate among hundreds to aid
them, but that now, before they hunt a slave, they must hunt and catch a
United States judge, or a commissioner of six or eight in a whole State.
Truly a hard case, and yet the slaveholders themselves set the very trap
in which they have been caught, and thus it is that, through their
folly, and your generosity in not pointing out to them the blunder they
were committing, the new law is more favorable to the fugitive than the
old one. Surely, Sir, it could not have been more perilous to the young
West Indian judge to meddle with "reasons," than it is for you. Either,
Sir, you voted for the law without reading it, or you have forgotten its
provision. Be assured, the Southern lawyers were as well acquainted as
yourself with the fact, that a few individuals, termed "commissioners,"
had been appointed by the United States courts to perform certain
ministerial acts; and that, as these men were now to be promoted to the
office of slave-catching judges, they would be wholly inadequate in
number to lend efficient aid to the hunters of men. Hence, they inserted
in the third section of the bill, the following enactment, which has
strangely escaped your recollection, viz.:--"And it is further enacted,
that the Circuit Courts of the United States, and the Superior Courts of
_each_ organized Territory of the United States, SHALL from time to time
ENLARGE THE NUMBER OF COMMISSIONERS with a view to afford reasonable
facilities to reclaim fugitives from labor, and to the prompt discharge
of the duties imposed by this act." So that, instead of six or eight
commissioners in a State, we are to have as many hundreds, if needed.
Nor is this all. By the second section, the power possessed by the
Circuit Courts to appoint commissioners is for the first time conferred
on the _Territorial_ courts, so that there shall be no lack of
slave-catching judges in Oregon, Utah, and New Mexico. Instead of your
six or eight commissioners in a State, your law contemplates that there
shall be one or more in _each county_; for the fifth section provides,
that, "the better to enable the said commissioners to execute their
duties faithfully and efficiently, ... they are hereby authorized and
empowered, within their _counties respectively_," to appoint one or more
persons to execute their warrants. So it seems we are to have an
unlimited number of judges and executioners. These executioners,
expressly appointed to catch slaves, and of course among the most
worthless and degraded of the community, are one and all invested with
the power of a high sheriff to call out the _posse comitatus_, not
merely in his own county, but in every hamlet in the State, and require
"good citizens," under pain of fine and imprisonment, to join him in his
execrable hunt. Really, Sir, your "evidence" that the new law is more
favorable to the fugitive than the old one falls short of demonstration.
You thus apologize for not giving the alleged fugitive a trial by jury.
"There was no more trial by jury provided for under the old law than
under the new law. The claim of a jury trial is entirely _new_; never
thought of till modern discussions of the subject begun. For fifty-seven
years our fathers and we have been living under the laws which provided
no such thing, and now one which makes no such provision is denounced in
unmeasured terms as cruel and inhuman. Where have we all been living for
half a century?" Surely, Sir, it is a most logical reason for not
changing a wicked law, that it has been in force for fifty-seven years.
Strange that the legislators of Massachusetts did not perceive the force
of this reasoning when they abolished the laws for hanging witches and
whipping Quakers. Permit me, Sir, to ask, Where had _you_ been living
when _you_ declared it to be the _duty_ of Congress to give the fugitive
a trial by jury, although for fifty-seven years such a trial had been
denied him? You probably forgot, Sir, when giving the above "reason,"
that, not long before you took your seat in Congress, you had, as a
member of the Massachusetts Legislature, voted for the following
resolution, viz.:--"We hold it to be the duty of that body [Congress] to
pass such laws only in regard thereto as will be maintained by the
public sentiment of the free States, where such laws are to be enforced,
and which shall especially secure all persons, whose surrender may be
claimed as having escaped from labor and service in other States, the
right of having the validity of such claim determined by a jury in the
State where such claim is made." So it seems that, while in Boston, you
esteemed it the _especial duty_ of Congress to grant the fugitive a
trial by jury, but that in the atmosphere of Washington you acquired new
views of moral philosophy.
Suffer me, Sir, also to inquire, Where had Mr. Webster been "living for
half a century," when, on the 3d of last June, he introduced into the
Senate a bill amendatory of the act of 1793, granting the alleged
fugitive a trial by jury whenever he shall make oath that he is not the
slave of the claimant?
Another of your "reasons" is, that your law does _not_ suspend the
_habeas corpus_, and in proof of its innocence in this respect, you
refer to the opinion of "legal authority of the highest kind," viz. Mr.
Crittenden, of Kentucky. It is very true that the words _habeas corpus_
are omitted in your law, as the word _slave_ is in the Constitution, but
in neither case is the omission of any practical importance. You must be
aware, Sir, that whenever a person is in the custody of another, if
sufficient ground be shown to render it probable that the custody is
illegal, the writ is granted as a matter of right. But why is it
granted? That the court may at its discretion, according to
circumstances, remand or discharge the prisoner. Take away from the
court the discretionary power to discharge, and the writ is rendered an
idle form. Your law, you say, does not suspend the _habeas corpus_; it
is guiltless of such an enormity. A man who is carrying off one of our
citizens in chains, may indeed be served with the writ, and he brings
his prisoner before the court, and he produces a paper for which he paid
$10, and reads from your law, that this paper, called a certificate,
"shall be conclusive," and "shall prevent all molestation of said person
or persons by any _process_ issued by any court, judge, or magistrate,
or other person whomsoever." It is because the word _process_, instead
of _habeas corpus_, is used, that your law does not suspend the writ of
freedom! In vain may the prisoner plead that he is not the person
mentioned in the certificate; in vain may he offer to show that the
certificate is a forgery; in vain may he urge that the man who signed
the certificate was not a commissioner. The little piece of paper
costing ten dollars is to save the slave-catcher from "all molestation,"
not because the writ of _habeas corpus_ is suspended,--O, no! but in
consequence of the words "any process"!
You refer to two objections, which you say are made to your law, and
endeavour to refute them; viz. the onerous obligations imposed upon the
marshal, and the penalties attached to an attempt "to assist in the
rescue of the slave after he has been proved to be such." You have
evinced your discretion in confining yourself to only four objections
made to your law; viz. the denial of a jury trial, the suspension of the
_habeas corpus_, the duties of the marshal, and the penalties imposed on
an attempt to rescue the slave _after_ judgment. With what success, and
with what "reasons," you have combated the first two has already been
seen. As to the last two, they scarcely merit an answer, and hence you
have selected them. If the obligations of the marshal are onerous, he
has voluntarily assumed them by accepting the office. If, in a civilized
country, a man attempts forcibly to rescue a prisoner in the custody of
the law, he must expect to be punished. There are many weighty
objections to your law which you have not thought it expedient to
notice. Permit me to supply your omission, and to tell you why your law
is so intensely odious. And here let me again remind you of the true
issue between you and the people. It is not now the constitutional power
of Congress under the decision of the Supreme Court to pass a law for
the recovery of fugitive slaves,--this is conceded. The odium you have
experienced, and against which you have appealed to the public, is
caused by your having voted for a law which, in its details, violates
the Constitution, and outrages justice and humanity. Throughout your
long and labored apology, you avoid grappling with these charges. You
vindicate the denial of a jury trial only on the ground that it has been
denied for fifty-seven years, and on the authority of Mr. Crittenden
affirm that the _habeas corpus_ is not suspended; but you avoid the
constitutional and moral objections urged against your law.
By the Constitution, fugitive slaves are to be restored to those, and
those only, who are legally entitled to their services. The means of
ascertaining whether a man is a slave, whether he has fled from his
master, and whether the claimant is legally entitled to him, are not
defined by the Constitution. It is now intrusted to the discretion of
Congress to specify these means, but of course that discretion ought to
be exercised in accordance with the Constitution, with justice, and with
humanity. The complaint against you is, that you have voted for a law
which outrages them all, and against this complaint you have failed to
offer the shadow of a vindication.
A Virginian comes to Boston, and there seizes one of the inhabitants as
his slave. The man claimed declares the claim to be false and
fraudulent. Here, then, is an issue both of law and of fact between two
men equally entitled to the protection of law; for the man claimed is on
every presumption of law and justice to be regarded as free, till the
contrary is proved. The issue between these two men is, I have said, one
of fact and of law. Is the person seized the man he is said to be? This
is a question of fact. Admitting his identity, is he a slave, and, if
so, does he belong to the claimant? These are both questions of law,
resting upon facts to be proved. Those familiar with the reports of
Southern courts know that the title to slaves is a frequent matter of
litigation, involving intricate questions respecting the validity of
wills, the construction of deeds, the partition of estates, and the
claims of creditors. By carrying a slave into a free State, the owner
forfeits his title to him while there, and cannot reclaim him; and hence
the acts of the claimant himself may be involved in the issue. And now,
Sir, I ask, have you ever known, or can you conceive of, any issue at
law respecting the title to property so awfully momentous to a defendant
as the one we are considering? Were your son or daughter the defendant
in such an issue, would you not rejoice to purchase a favorable judgment
by the contribution of the last cent of your great wealth? Let us, then,
proceed to inquire what provision _you_, in the fear of God and the love
of justice and humanity, have made for the trial of this tremendous
issue,--an issue on the result of which all the hopes of a fellow-man
for the life that is, and for that which is to come, are suspended.
In the first place, What is the pecuniary value of the plaintiff's claim
to _himself_?--for it would be an insult to humanity to estimate in
dollars and cents the blessings of liberty and of the conjugal and
parental relations to the unhappy defendant. You have yourself fixed the
value of the plaintiff's claim at _one thousand dollars_. So far, then,
the issue is, by your own showing, within the constitutional guarantee
of trial by jury in all suits at common law where the matter in
controversy is of the value of _twenty_ dollars. But is the claim made
by the plaintiff "a suit at common law"? What is a _suit_? The Supreme
Court thus answers the question:--"We understand it [a suit] to be the
prosecution or pursuit of some _claim_, demand, or request. In law
language, it is the prosecution of some demand in a court of justice."
(6 _Wheaton_, 407.)
It seems, then, that the Virginian, in claiming an inhabitant of Boston
as his slave, in fact brings _a suit_ against him for services due worth
one thousand dollars. Now remember, Sir, the fugitive is not to be
delivered up, as a mass of flesh, or inanimate matter, belonging to the
claimant, but as a debtor, in the phraseology of your own law, "_owing_
service or labor." The suit is brought for service or labor _due_, and
the Constitution provides that the person so owing service or labor
shall be delivered to him to whom the same is "_due_." And now, is this
suit for service due "a suit at _common law_"? Again let the Supreme
Court answer. "The phrase _common law_, found in this clause [the clause
guaranteeing a jury trial], is used in contradistinction to equity and
admiralty and maritime jurisdiction. 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
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 minds of the framers of the amendment. By _common
law_, they meant what the Constitution denominated, in the third
article, 'law'; not merely suits which the common law recognized among
its old and settled proceedings, but suits in which legal rights were to
be ascertained and determined, in contradistinction to those where
equitable rights alone were recognized, and equitable remedies were
administered.... In a just sense, the amendment, then, may be construed
to embrace _all suits_ which are not of equity and admiralty
jurisdiction, _whatever may be the peculiar form_ which they may assume
to settle legal rights." (3 _Peters_, 446.)