your law is in palpable violation of the amendment to the Constitution
securing a trial by jury in suits at common law where the matter in
controversy exceeds twenty dollars in value. Think not, Sir, that I am
misrepresenting the Supreme Court. I know well that the _dicta_ I have
quoted have reference to _white_ men, and that they have been virtually
set aside in decisions respecting black men. I well know, that, in our
model republic, law and justice and morality are all cutaneous. But
admitting that the Supreme Court have stultified themselves, and
virtually denied, that, where a suit was brought for the services of a
_black_ man, the Constitution required a jury trial, recollect, Sir,
that not in one single instance has the court decided that the
Constitution _prohibited_ such a trial. But if not prohibited, then
Congress are permitted to accord such a trial, and _both you and Mr.
Webster have declared that Congress had a right to grant such a trial,
and ought to grant it_. In voting, therefore, for a law denying such a
trial, you made a voluntary surrender to the slaveholder of the security
which such a trial would have afforded to multitudes of your poor,
ignorant, oppressed fellow-men. For this act of cruelty and injustice,
committed against your own late conviction of duty, what is your
justification? Why, that the blacks had been already deprived of the
right of trial by jury fifty-seven years!
Let us now see what tribunal you have substituted for a jury in the
trial of one of the most momentous issues that can engage the attention
of a court of justice. You have provided for the appointment of an
indefinite number of judges, each of whom is to have exclusive
jurisdiction of these issues, and from whose judgment there is to be no
appeal. The Constitution declares, "The judges, both of the Supreme and
inferior courts, shall hold their offices during good behaviour, and
shall, at stated times, receive for their services a compensation, which
shall not be diminished during their continuance in office." These
judges are appointed by the Senate, on the nomination of the President.
Your herd of judges, called commissioners, are appointed by the courts,
and hold office during pleasure, and instead of receiving a salary, are
rewarded by a rule the infamy of which, it is believed, belongs to your
law exclusively,--a rule which doubles their compensation whenever they
decide in favor of the rich plaintiff, and _against_ the poor and
friendless defendant. But perhaps you will deny that these men are
judges; for, if judges, their appointment is palpably unconstitutional.
Let us hear the Supreme Court, at a time when it was deemed expedient to
maintain that the persons who executed the law of 1793 were _judges_.
"It is plain, that, where a claim is made by the owner out of possession
for the delivery of a slave, it must be made, if made at all, _against
some other person_; and inasmuch as the right is a right of property,
capable of being recognized and asserted by proceedings _before a court
of justice between parties adverse to each other_, it constitutes, in
the strictest sense, a _controversy_ between parties, and a case arising
under the Constitution of the United States, within the express
delegation of judicial power given by that instrument." (16 _Peters_,
616.) Hence your commissioners are, in the _strictest sense_, judges,
exercising "judicial power" delegated by the Constitution.
You pronounce Mr. Crittenden "legal authority of the highest kind." This
legal authority understands the sixth section of your law as providing
that each commissioner "shall have judicial power and jurisdiction to
hear, examine, and decide the case in a summary manner." Now, if a man,
having judicial power and jurisdiction to decide controversies between
parties adverse to each other, in controversies arising under the
Constitution and within the express delegation of judicial power given
by that instrument, is not a judge, do tell us who is one. Once more,
Sir, Mr. Crittenden says, "The legal authority of every tribunal of
exclusive jurisdiction, where no appeal lies, is of necessity
conclusive upon every tribunal; and therefore the judgment of the
tribunal created by this act is conclusive upon all other tribunals." So
your commissioner is not only a judge, but he constitutes a tribunal of
exclusive jurisdiction, and his judgment is binding even upon the
Supreme Court of the United States. And yet, Sir, you must deny that
this omnipotent commissioner is a judge, or you must admit, that, in the
mode of his appointment, you have flagrantly violated the Constitution
of your country.
It has been most wickedly asserted by our proslavery presses and our
proslavery politicians, that the surrender of fugitives from labor and
fugitives from justice are similar proceedings. The surrender of a
fugitive slave involves two questions, that of identity and that of
property; and the law makes the decision of the commissioner on both
points final and conclusive upon every State and Federal court in the
land. The surrender of a fugitive criminal involves only the question of
personal identity. The Governor of the State issues his warrant for the
apprehension and delivery of a certain person proved to him to be
charged with felony. If the officer arrests the wrong person, he does it
at his peril, and a writ of _habeas corpus_ would immediately release
the person wrongfully arrested. Again, it is most fraudulently
maintained, that, if the wrong person is by the commissioner adjudged a
slave, he may sue for his freedom in a Southern court! Should he do so,
the exhibition of the commissioner's certificate is by law declared to
be conclusive _upon all tribunals_. But even supposing that a Southern
court, in defiance of law, should go behind the certificate, how is a
free colored person from the North, working under the lash on a
Mississippi plantation, to prove his freedom? How is he to fee a lawyer?
How is he to get into court? If once there, where are his witnesses?
They are his friends and acquaintances of his own color residing in the
North. How are they to be summoned to Mississippi? Should they venture
to enter the State, they would be imprisoned, and perhaps sold into
slavery; or even if permitted to enter the court-room, their testimony
would by law be excluded, against the claims of a white man. How
despicably profligate, then, is the assumption of the advocates of your
law, that any injustice committed under it would be repaired by Southern
courts!
It was not enough, it seems, that the wretched defendant in this
momentous issue should be subjected to the jurisdiction of a judge
unknown to the Constitution, holding his office by a prohibited tenure,
incapable of being impeached, and bribed to decide in favor of the
plaintiff by the promise of double fees, but the very trial allowed him
must be a burlesque on all the forms and principles of juridical
justice. The plaintiff, without notice to the defendant, prepares
himself for trial, and when his affidavits or witnesses are all ready,
he seizes the unsuspecting victim in the street, and puts him
_instanter_ on his defence. Had the wretched man been accused of some
atrocious crime, he might have demanded bail, and would have been
permitted to go at large to seek for counsel, to look for witnesses, and
to prepare for trial at some future day, of which he would have due
notice. But no such privilege is allowed a man who is accused of _owing
service_. One of your commissioners has already decided that the law
does not permit him to bail the prisoner. The slave power rides in
triumph over all the barriers erected by the wisdom of ages for the
protection of human rights. The defendant is brought, generally in
irons, before your commissioner judge, who is required "to hear and
determine the case of _the claimant_ in a summary manner." The law seems
not even to imagine the possibility of any defence being made on the
part of the defendant. It makes no provision for such a defence,--no
assignment of counsel, no summons for witnesses. We shall see presently,
that if the plaintiff makes out a _prima facie_ title, satisfactory to
the commission, it is all the law requires. Let me now call your
attention to the practical working of your diabolical law. A man named
Rose was lately seized at Detroit, and brought before a commissioner as
a fugitive slave. I copy from the newspaper report. "Mr. Joy (counsel
for defendant) moved a postponement of the trial to a future day, to
enable Rose to produce his papers to establish his right to freedom,
which papers he had _sworn_ were in Cincinnati. The counsel for the
claimant denied that the commissioner had any authority under the law to
grant a postponement. The commissioner agreed with the counsel for the
plaintiff, that _he had no authority to postpone the trial_; and he
further declared, that, _even were the papers by which Rose was
manumitted present, he could not under the law receive them in
evidence_."
Utterly devilish as was this decision, it was sound law. The plaintiff
had proved his title satisfactorily, and this being done, the
commissioner was bound by the express words of the law to grant the
certificate. He had no right to admit rebutting evidence. It was
sufficient to prove that the prisoner had been the slave of the
claimant's father, and that the claimant was the heir at law of his
father. This of itself was satisfactory, and therefore the commissioner
had no right to admit in evidence the very deed of manumission granted
by the father to the slave. The framers of the law had been as explicit
as they dared to be. "Upon satisfactory proof being made by deposition
or _affidavit_, to be taken and certified, &c., or by other satisfactory
testimony [of course, in writing, and _ex parte_], and with proof, also
by affidavit, of the _identity_ of the person," &c., the defendant is to
be surrendered. Not a hint is given that any testimony may be received
to rebut the _satisfactory_ proof given by the plaintiff. You have,
moreover, Sir, provided a species of evidence never before heard of in
the trial of an issue. By the tenth section, the claimant may go before
a judge or court in Texas, and there make proof by affidavit that _his_
slave has escaped. Whereupon, the court or judge is to certify that the
proof is satisfactory. A record of this satisfactory proof, together
with a description of the fugitive, is to be made, and a certified
transcript of this record, "being exhibited to any judge, commissioner,
or other officer authorized," &c., "_shall_ be held and taken to be full
and conclusive evidence of the fact of escape, and that the service or
labor of the person escaping is _due_ to the party in such record
mentioned." Here all defence is taken from the defendant. Should he
summon a host of witnesses to prove his freedom, not one could be heard;
should he offer a bill of sale from the claimant to another, it could
not be received; should he produce a deed of manumission, acknowledged
and certified in a Southern court, it would be waste paper. And thus a
man's freedom is to be sacrificed on an affidavit made a thousand miles
off. What, Sir, would you think of a law that would authorize the
seizure and sale of your property to satisfy a debt which any man in
California might think proper to swear, before a Californian judge, was
_due_ from you to him?
Such, Sir, is the _trial_ which you, the representative of Boston, a
descendant of the Pilgrims, and "a gentleman of property and standing,"
have accorded to the poor and oppressed. Did the Constitution require
such a prostitution of justice, such an outrage of humanity, at your
hands? I need not be told that some of your commissioners have not
construed your law as strictly as did the Detroit functionary. Thanks to
the force of public opinion, and to the zeal of some benevolent lawyers,
whose hearts were not padded with cotton, in some instances defendants
have been permitted to call witnesses in their behalf; and some regard
has been paid to the ordinary principles of justice. But in all such
instances, the spirit of the law and the intentions of its framers have
been frustrated.
And now let us listen to your "reason" for justifying all the atrocities
and abominations of your law. You gravely tell us, "The entire
population of the North has acquiesced in the law of 1793, without
thinking itself exposed to the charge of barbarity, and I have only to
say, that I do not think the charge any more just now." Certainly, Sir,
the young colonial judge could not have given a reason less logical or
satisfactory. You must be an inattentive observer of passing events, if
you are ignorant that the law of 1793 has again and again been denounced
as iniquitous, that some of the States have prohibited their officers
from assisting in its execution, that numberless petitions have been
presented to Congress for its repeal, and that you yourself, instead of
acquiescing in it, solemnly declared it to be the duty of Congress so
far to alter the law, as to grant the alleged fugitive a trial by jury.
Yet the law of 1793, wicked as it was, was justice and mercy compared
with yours. The trials under that were almost invariably before judges
of the State courts, not appointed like your commissioners for the vile
and only purpose of reducing their fellow-men to bondage. There judges
were not confined to _ex parte_ evidence, were not compelled to receive
"as full and conclusive" affidavits made in distant States, and by
unknown persons. For the most part, they honestly endeavoured, by a
patient investigation according to the ordinary rules of evidence, and
by holding the plaintiff to strict legal proof, to supply the want of a
jury.
David Paul Brown, Esq., of Philadelphia, in a letter of last November,
affirms that for the last thirty years he has been engaged as counsel in
almost every important fugitive case brought before the judges and
courts of Philadelphia, and he tells us, "thanks to those upright and
impartial and independent judges by whom the rights of the parties were
finally determined," he knows of no instance in which a colored person
was, in his opinion, wrongfully surrendered. But he adds, "I have known
HUNDREDS who have been illegally and unjustly claimed." This experienced
lawyer, commenting on your law, justly says it allows "_ex parte_
testimony to be received against the alleged fugitive, which, upon no
principle known to the common law, could be received upon the claim to
a horse or a dog." About four weeks after the date of this letter, Mr.
Brown was called to defend an alleged fugitive "illegally and unjustly
claimed," not before one of the "upright and impartial and independent"
Pennsylvania judges, but before one of your ten-dollar slave-catching
judges. I beg you to mark the result.
On the 21st of December, a colored man was arrested in the street in
Philadelphia, without warrant, and accused of stealing chickens. He was
thrust into a carriage, driven to the State-House, carried into an upper
room, and handcuffed. In this state he was detained till a commissioner
arrived. The name of this executor of your law is worthy of remembrance.
EDWARD D. INGRAHAM ought to be as much endeared to slave-catchers, as
Judge Jeffries was to James the Second.
By some means, the arrest became known, and counsel appeared for the
prisoner. Your commissioner was informed that the prisoner had only been
seized an hour and a half before, and had not heard the charge against
him; that his counsel had had no time to learn the plaintiff's case, nor
to prepare for the defence; that there were persons residing at a
distance, some in New Jersey and some in Wilmington, who would be
important witnesses in his behalf. On these grounds, a motion was made
for a continuance. And what, Sir, do you suppose was the reply made by
the slave-catching judge to this motion? "THE HEARING IS TO BE A SUMMARY
ONE: LET IT PROCEED." No doubt you fully participate in Mr. Webster's
indignation against Austrian barbarity; but see no barbarity in this
accursed proceeding against a _colored_ American. The hearing did
proceed, and James S. Price, on behalf of the plaintiff, swore that the
prisoner was Emery Rice, the man claimed, but knew nothing further about
his being a slave, except that he had seen him riding the claimant's
horse. Had _heard it said_ the prisoner was a slave. This was the amount
of the testimony on behalf of the claimant. Any honest jury, nay, any
honest judge, would instantly have decided in favor of the prisoner.
Not so MR. EDWARD D. INGRAHAM. The counsel for the defendant asked again
for a postponement, and founded the motion on the _oath_ of the
defendant, that he could procure six persons, naming them, to testify to
his freedom. A delay of ONE HOUR was asked for. This was refused, and
the judge(!) sent for a certificate to sign. During the delay thus
occasioned, one of the six persons named by the defendant appeared, and
swore that he had known the prisoner all his life. That he was not Emery
Rice, but Adam Gibson; that he was a freeman, having been manumitted by
the will of his late master. Mr. Brown produced a copy of the will of
the late master, and it so far confirmed the testimony of the witness.
Another person in the crowd now came forward, and swore that he also
knew the prisoner, and that he was a free person, and that he was Adam
Gibson. But all was in vain. The commissioner signed the certificate,
and, with an obtuseness of intellect which marked him as a fit subject
for a commission of lunacy, declared, "He had no doubt of the identity
of the prisoner with the slave Emery Rice, and that _all other
proceedings must be before the courts of Maryland_, whither he would
send him."[1] And so the prisoner, without seeing his wife and children,
whom he had that morning parted from unsuspicious of danger and
unconscious of crime, was hurried off at the expense of our glorious
model republic, under an escort of officers, who delivered him, not to
the courts of Maryland, but to Mr. William S. Knight, the reputed owner.
But Mr. Knight told the officers, "You have brought me a wrong man; this
is not Emery Rice; this man is no slave of mine." And so Adam Gibson
returned to Philadelphia, and is now a living illustration of the
abominable iniquity of one of the most accursed laws to be found in the
statute-book of any civilized nation.
[1] See report in the _New York Tribune_, 25th December, 1850.
You do not think your law more barbarous than that of 1793. Let me
further enlighten you. Judge McLean of the Supreme Court, in his opinion
delivered last May in the case of _Norris_ v. _Newton et al._,
remarks,--"In regard to the arrest of fugitives from labor, the law [act
of 1793] _does not impose any active duties on our citizens generally_";
and he argues in defence of the law, that "it gives no one a just right
to complain; he has only to refrain from an express violation of the
law." In other words, the law only required individuals to be passive
spectators of a horrible outrage, and did not compel them to be active
participators in other men's villany. Now, what says your law? Why, that
every commissioner may appoint as many official slave-catchers as he
pleases, and that each of these menials may "summon and call to their
aid the _by-standers_ or _posse comitatus_ of the proper county, when
necessary to insure a faithful observance of the clause of the
Constitution referred to in conformity with the provisions of this act,
AND ALL GOOD CITIZENS ARE HEREBY COMMANDED TO AID AND ASSIST in the
prompt and efficient execution of this law, whenever their services may
be required." And what is the fate you have provided for the "good
citizen," who, believing slavery to be sinful, cannot, in the fear of
God, "aid and assist" in making a fellow-man a slave? Any person "who
shall aid, abet, or assist" the fugitive "directly or indirectly"
(cunning words) to escape from such claimant, as, for instance, refusing
to join in a slave-hunt when required, shall be fined not exceeding
$1,000, be imprisoned six months, and pay the claimant $1,000. I hope,
Sir, you are now able to perceive that your law has a preeminence in
barbarity over its predecessor. And now, Sir, please to recollect, that
party discipline, aided by the influence of Messrs. Webster and Clay,
and the factory and cotton interest of Boston and New York, could not
procure for this atrocious law the votes of _one half_ the members of
the House of Representatives. Of two hundred and thirty-two members,
only one hundred and nine dared to place their names on an enduring and
shameful record, while many basely deserted their seats, fearing alike
to vote either for or against it. You, Sir, following Mr. Webster's
advice, "conquered your prejudices," and in company with _two_ more
Northern Whigs, one of them a native of Virginia, cast your vote for
this bill of abominations. But, although you voted for the law, you do
not wish your constituents to suppose you approved of it. "It will not,
I trust, be inferred from any thing I have said, that I consider the law
which has passed unexceptionable. There are amendments which I strongly
desire to be introduced into it." What are the exceptionable features of
the law, what are the amendments you desire, you refrain from
specifying. But you tell us that you would have labored for these
amendments "had it been possible, but every body knows that it was
_impracticable_." You allude to the _previous question_, which prevented
both discussion and amendments. But why, then, did you vote for an
objectionable bill which could not be amended? Here, again, we have one
of your unfortunate reasons. "I deem conformity to the design of the
Constitution more important than the objectionable details of the bill."
So, by your own confession, had there been no previous question, you
would have swallowed the bill with all its objectionable details, out of
reverence for the _design_ of the Constitution, although that design
neither embraced nor required a single one of those details. Did you,
Sir, vote _against_ the previous question? On this point you are silent,
and the minutes afford no information; but _if_ you did, your vote was a
most remarkable aberration from your proslavery course in Congress.
_After_ the previous question had been seconded, it was moved to lay the
bill on the table. Had this motion been carried, you might have
introduced another bill, omitting the "objectionable details," but you
voted with the slaveholders. The slaveholders then moved that the bill
be read a third time. Had this been lost, there would have been a chance
of correcting the "objectionable details." Again you voted with the
slaveholders, and a third time, also, on the main question.
I will now, Sir, call your attention to the disastrous influence which
your law has exerted on the _moral sense_ of the community. Says
Coleridge, "To dogmatize a crime, that is, to teach it as a doctrine, is
itself a crime." Of this crime of dogmatizing crime, Mr. Webster, and
most of our cotton politicians, and, alas! many of our fashionable,
genteel divines, are guilty; nor are you innocent, Sir, who in your law
require "GOOD citizens" to aid in hunting and enslaving their
fellow-men.