Whether the constitutional injunction to surrender fugitive

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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.)

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. · 第 1 / 4 段