II.

From this general review of the relations of the National Government

to Slavery, I pass to the consideration of THE TRUE NATURE OF THE

PROVISION FOR THE RENDITION OF FUGITIVES FROM SERVICE, embracing

an examination of this provision in the Constitution, and especially

of the recent Act of Congress in pursuance thereof. As I begin this

discussion, let me bespeak anew your candor. Not in prejudice, but in

the light of history and of reason, we must consider this subject. The

way will then be easy, and the conclusion certain.

Much error arises from the exaggerated importance now attached to this

provision, and from assumptions with regard to its origin and primitive

character. It is often asserted that it was suggested by some special

difficulty, which had become practically and extensively felt, anterior

to the Constitution. But this is one of the myths or fables with which

the supporters of Slavery have surrounded their false god. In the

Articles of Confederation, while provision is made for the surrender

of fugitive criminals, nothing is said of fugitive slaves or servants;

and there is no evidence in any quarter, until after the National

Convention, of hardship or solicitude on this account. No previous

voice was heard to express desire for any provision on the subject. The

story to the contrary is a modern fiction.

I put aside, as equally fabulous, the common saying, that this

provision was one of the original compromises of the Constitution,

and an essential condition of Union. Though sanctioned by eminent

judicial opinions, it will be found that this statement is hastily

made, without any support in the records of the Convention, the only

authentic evidence of the compromises; nor will it be easy to find

any authority for it in any contemporary document, speech, published

letter, or pamphlet of any kind. It is true that there were compromises

at the formation of the Constitution, which were the subject of anxious

debate; but this was not one of them.

There was a compromise between the small and large States, by which

equality was secured to all the States in the Senate.

There was another compromise finally carried, under threats from the

South, _on the motion of a New England member_, by which the Slave

States are allowed Representatives according to the whole number

of free persons and "three fifths of all other persons,"[158] thus

securing political power on account of their slaves, in consideration

that direct taxes should be apportioned in the same way. Direct taxes

have been imposed at only four brief intervals. The political power has

been constant, and at this moment sends twenty-one members to the other

House.

[158] Madison's Debates, July 12, 1787.

There was a third compromise, not to be mentioned without shame. It

was that hateful bargain by which Congress was restrained until 1808

from the prohibition of the foreign slave-trade, thus securing, down

to that period, toleration for crime. This was pertinaciously pressed

by the South, even to the extent of absolute restriction on Congress.

John Rutledge said: "If the Convention thinks that North Carolina,

South Carolina, and Georgia will ever agree to the Plan [the National

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." Charles Pinckney

said: "South Carolina can never receive the Plan, if it prohibits the

slave-trade." Charles Cotesworth Pinckney "thought himself bound to

declare candidly, that he did not think South Carolina would stop her

importations of slaves in any short time."[159] The effrontery of the

slave-masters was matched by the sordidness of the Eastern members, who

yielded again. Luther Martin, the eminent member of the Convention, in

his contemporary address to the Legislature of Maryland, described the

compromise. "I found," he said, "the Eastern States, notwithstanding

their aversion to Slavery, were very willing to indulge the Southern

States at least with a temporary liberty to prosecute the slave-trade,

_provided the Southern States would in their turn gratify them by

laying no restriction on navigation acts_."[160] The bargain was

struck, and at this price the Southern States gained the detestable

indulgence. At a subsequent day Congress branded the slave-trade as

piracy, and thus, by solemn legislative act, adjudged this compromise

to be felonious and wicked.

[159] Madison's Debates, August 21 and 22, 1787.

[160] The Genuine Information delivered to the Legislature of Maryland,

etc. p. 36: Appended to Vol. IV. Elliot's Debates.

Such are the three chief original compromises of the Constitution and

essential conditions of Union. The case of fugitives from service is

not of these. During the Convention it was not in any way associated

with these. Nor is there any evidence from the records of this body,

that the provision on this subject was regarded with any peculiar

interest. As its absence from the Articles of Confederation had not

been the occasion of solicitude or desire, anterior to the National

Convention, so it did not enter into any of the original plans of

the Constitution. It was introduced tardily, at a late period of the

Convention, and adopted with very little and most casual discussion. A

few facts show how utterly unfounded are recent assumptions.

The National Convention was convoked to meet at Philadelphia on the

second Monday in May, 1787. Several members appeared at this time, but,

a majority of the States not being represented, those present adjourned

from day to day until the 25th, when the Convention was organized by

the choice of George Washington as President. On the 28th a few brief

rules and orders were adopted. On the next day they commenced their

great work.

On the same day, Edmund Randolph, of slaveholding Virginia, laid before

the Convention a series of fifteen resolutions, containing his plan for

the establishment of a New National Government. Here was no allusion to

fugitive slaves.

Also, on the same day, Charles Pinckney, of slaveholding South

Carolina, laid before the Convention what was called "A Draft of a

Federal Government, to be agreed upon between the Free and Independent

States of America," an elaborate paper, marked by considerable

minuteness of detail. Here are provisions, borrowed from the Articles

of Confederation, securing to the citizens of each State equal

privileges in the several States, giving faith to the public records

of the States, and ordaining the surrender of fugitives from justice.

But this draft, though from the flaming guardian of the slave interest,

contained no allusion to fugitive slaves.

In the course of the Convention other plans were brought forward:

on the 15th June, a series of eleven propositions by Mr. Patterson,

of New Jersey, "so as to render the Federal Constitution adequate

to the exigencies of Government and the preservation of the Union";

on the 18th June, eleven propositions by Mr. Hamilton, of New York,

"containing his ideas of a suitable plan of Government for the

United States"; and on the 19th June, Mr. Randolph's resolutions,

originally offered on the 29th May, "as altered, amended, and agreed

to in Committee of the Whole House." On the 26th July, twenty-three

resolutions, already adopted on different days in the Convention, were

referred to a "Committee of Detail," for reduction to the form of a

Constitution. On the 6th August this Committee reported the finished

draft of a Constitution. And yet in all these resolutions, plans, and

drafts, _seven_ in number, proceeding from eminent members and from

able committees, no allusion is made to fugitive slaves. For three

months the Convention was in session, and not a word uttered on this

subject.

At last, on the 28th August, as the Convention was drawing to a close,

on the consideration of the article providing for the privileges of

citizens in different States, we meet the first reference to this

matter, in words worthy of note. "General [Charles Cotesworth] Pinckney

was not satisfied with it. He SEEMED _to wish some provision_

should be included in favor of property in slaves." _But he made no

proposition._ Unwilling to shock the Convention, and uncertain in his

own mind, he only _seemed_ to wish such a provision. In this vague

expression of a vague desire this idea first appeared. In this modest,

hesitating phrase is the germ of the audacious, unhesitating Slave Act.

Here is the little vapor, which has since swollen, as in the Arabian

tale, to the power and dimensions of a giant. The next article under

discussion provided for the surrender of fugitives from justice. Mr.

Butler and Mr. Charles Pinckney, both from South Carolina, now moved

openly to require "fugitive slaves and servants to be delivered up

like criminals." Here was no disguise. With Hamlet, it was now said in

spirit,--

"_Seems_, Madam! Nay, it is. I know not _seems_."

But the very boldness of the effort drew attention and opposition.

Mr. Wilson, of Pennsylvania, the learned jurist and excellent man, at

once objected: "This would oblige the Executive of the State to do

it at the public expense." Mr. Sherman, of Connecticut, "saw no more

propriety in the public seizing and surrendering a slave or servant

than a horse." Under the pressure of these objections, _the offensive

proposition was withdrawn_,--never more to be renewed. The article

for the surrender of criminals was then unanimously adopted.[161] On

the next day, 29th August, profiting by the suggestions already made,

Mr. Butler moved a proposition,--substantially like that now found in

the Constitution,--for the surrender, not of "fugitive slaves," as

originally proposed, but simply of "persons bound to service or labor,"

which, without debate or opposition of any kind, was unanimously

adopted.[162]

[161] "Agreed to, _nem. con._," are Madison's words.

[162] "Agreed to, _nem. con._," are again Madison's words.

Here, palpably, was no labor of compromise, no adjustment of

conflicting interests,--nor even any expression of solicitude. The

clause finally adopted was vague and faint as the original suggestion.

In its natural import it is not applicable to slaves. If supposed by

some to be applicable, it is clear that it was supposed by others to

be inapplicable. It is now insisted that the term "_persons bound to

service_," or "_held to service_," as expressed in the final revision,

is the equivalent or synonym for "_slaves_." This interpretation is

rebuked by an incident to which reference has been already made, but

which will bear repetition. On the 13th September--a little more than

a fortnight after the clause was adopted, and when, if deemed to be

of any significance, it could not have been forgotten--the very word

"service" came under debate, and received a fixed meaning. It was

unanimously adopted as a substitute for "servitude" in another part of

the Constitution, for the reason that it expressed "the _obligations of

free persons_," while the other expressed "the condition of slaves."

In the face of this authentic evidence, reported by Mr. Madison, it is

difficult to see how the term "persons held to _service_" can be deemed

to express anything beyond "the obligations of _free persons_." Thus,

in the light of calm inquiry, does this exaggerated clause lose its

importance.

The provision, showing itself thus tardily, and so slightly regarded in

the National Convention, was neglected in much of the contemporaneous

discussion before the people. In the Conventions of South Carolina,

North Carolina, and Virginia, it was commended as securing important

rights, though on this point there was difference of opinion. In

the Virginia Convention, an eminent character, Mr. George Mason,

with others, expressly declared that there was "no security of

property coming within this section." In the other Conventions it was

disregarded. Massachusetts, while exhibiting peculiar sensitiveness at

any responsibility for Slavery, seemed to view it with unconcern. One

of her leading statesmen, General Heath, in the debates of the State

Convention, strenuously asserted, that, in ratifying the Constitution,

the people of Massachusetts "would do nothing to hold the blacks in

slavery." "The Federalist,"[163] in its classification of the powers

of Congress, describes and groups a large number as "those which

provide for the harmony and proper intercourse among the States," and

therein speaks of the power over public records, standing next in the

Constitution to the provision concerning fugitives from service; but

it fails to recognize the latter among the means of promoting "harmony

and proper intercourse"; nor does its triumvirate of authors anywhere

allude to the provision.

[163] No. 42.

The indifference thus far attending this subject still continued. The

earliest Act of Congress, passed in 1793, drew little attention. It

was not suggested originally by any difficulty or anxiety touching

fugitives from service, nor is there any contemporary record, in debate

or otherwise, showing that any special importance was attached to its

provisions in this regard. The attention of Congress was directed to

fugitives from justice, and, with little deliberation, it undertook, in

the same bill, to provide for both cases. In this accidental manner was

legislation on this subject first attempted.

There is no evidence that fugitives were often seized under this Act.

From a competent inquirer we learn that twenty-six years elapsed before

it was successfully enforced in any Free State. It is certain, that,

in a case at Boston, towards the close of the last century, illustrated

by Josiah Quincy as counsel, the crowd about the magistrate, at the

examination, quietly and spontaneously opened a way for the fugitive,

and thus the Act failed to be executed. It is also certain, that, in

Vermont, at the beginning of the century, a Judge of the Supreme Court

of the State, on application for the surrender of an alleged slave,

accompanied by documentary evidence, gloriously refused compliance,

_unless the master could show a Bill of Sale from the Almighty_. Even

these cases passed without public comment.

In 1801 the subject was introduced in the House of Representatives by

an effort for another Act, which, on consideration, was rejected. At

a later day, in 1817-18, though still disregarded by the country, it

seemed to excite a short-lived interest in Congress. In the House of

Representatives, on motion of Mr. Pindall, of Virginia, a committee was

appointed to inquire into the expediency of "providing more effectually

by law for reclaiming servants and slaves escaping from one State into

another," and a bill reported by them to amend the Act of 1793, after

consideration for several days in Committee of the Whole, was passed.

In the Senate, after much attention and warm debate, it passed with

amendments. But on return to the House for adoption of the amendments,

it was dropped.[164] This effort, which, in the discussions of this

subject, has been thus far unnoticed, is chiefly remarkable as the

earliest recorded evidence of the unwarrantable assertion, now so

common, that this provision was originally of vital importance to the

peace and harmony of the country.

[164] Annals of Congress, House and Senate Journals, 15th Cong.

1st Sess.

At last, in 1850, we have another Act, passed by both Houses of

Congress, and approved by the President, familiarly known as the

Fugitive Slave Bill. As I read this statute, I am filled with painful

emotions. The masterly subtlety with which it is drawn might challenge

admiration, if exerted for a benevolent purpose; but in an age of

sensibility and refinement, a machine of torture, however skilful

and apt, cannot be regarded without horror. Sir, in the name of the

Constitution, which it violates, of my country, which it dishonors,

of Humanity, which it degrades, of Christianity, which it offends,

I arraign this enactment, and now hold it up to the judgment of the

Senate and the world. Again, I shrink from no responsibility. I may

seem to stand alone; but all the patriots and martyrs of history, all

the Fathers of the Republic, are with me. Sir, there is no attribute of

God which does not take part against this Act.

But I am to regard it now chiefly as an infringement of the

Constitution. Here its outrages, flagrant as manifold, assume the

deepest dye and broadest character only when we consider that by its

language it is not restricted to any special race or class, to the

African or to the person with African blood, but that any inhabitant

of the United States, of whatever complexion or condition, may be its

victim. Without discrimination of color even, and in violation of every

presumption of freedom, the Act surrenders all who may be claimed as

"owing service or labor" to the same tyrannical proceeding. If there be

any whose sympathies are not moved for the slave, who do not cherish

the rights of the humble African, struggling for divine Freedom, as

warmly as the rights of the white man, let him consider well that the

rights of all are equally assailed. "Nephew," said Algernon Sidney in

prison, on the night before his execution, "I value not my own life a

chip; but what concerns me is, that _the law_ which takes away my life

may hang every one of you, whenever it is thought convenient."

Whilst thus comprehensive in its provisions, and applicable to all,

there is no safeguard of Human Freedom which the monster Act does not

set at nought.

It commits this great question--than which none is more sacred in the

law--not to a solemn trial, but to summary proceedings.

It commits this great question, not to one of the high tribunals of the

land, but to the unaided judgment of a single petty magistrate.

It commits this great question to a magistrate appointed, not by the

President with the consent of the Senate, but by the Court,--holding

office, not during good behavior, but merely during the will of the

Court,--and receiving, not a regular salary, but fees according to each

individual case.

It authorizes judgment on _ex parte_ evidence, by affidavit, without

the sanction of cross-examination.

It denies the writ of Habeas Corpus, ever known as the Palladium of the

citizen.

Contrary to the declared purposes of the framers of the Constitution,

it sends the fugitive back "at the public expense."

Adding meanness to violation of the Constitution, it bribes the

Commissioner by a double stipend to pronounce against Freedom. If he

dooms a man to Slavery, the reward is ten dollars; but saving him to

Freedom, his dole is five.

The Constitution expressly secures the "free exercise of religion":

but this Act visits with unrelenting penalties the faithful men and

women who render to the fugitive that countenance, succor, and shelter

which in their conscience "religion" requires; and thus is practical

religion directly assailed. Plain commandments are broken; and are we

not told that "whosoever shall break one of these least commandments,

and shall teach men so, he shall be called the least in the kingdom of

Heaven"?[165]

[165] Matt. v. 19.

As it is for the public weal that there should be an end of suits, so

by the consent of civilized nations these must be instituted within

fixed limitations of time; but this Act, exalting Slavery above even

this practical principle of universal justice, ordains proceedings

against Freedom without any reference to the lapse of time.

Glancing only at these points, and not stopping for argument,

vindication, or illustration, I come at once upon two chief radical

objections to this Act, identical in principle with those triumphantly

urged by our fathers against the British Stamp Act: _first_, that it is

a usurpation by Congress of powers not granted by the Constitution, and

an infraction of rights secured to the States; and, _secondly_, that it

takes away Trial by Jury in a question of Personal Liberty and a suit

at Common Law. Either of these objections, if sustained, strikes at the

very root of the Act. That it is obnoxious to both is beyond doubt.

* * * * *

Here, at this stage, I encounter the difficulty, that these objections

are already foreclosed by legislation of Congress and decisions of the

Supreme Court,--that as early as 1793 Congress assumed power over this

subject by an Act which failed to secure Trial by Jury, and that the

validity of this Act under the Constitution has been affirmed by the

Supreme Court. On examination, this difficulty will disappear.

The Act of 1793 proceeded from a Congress that had already recognized

the United States Bank, chartered by a previous Congress, which, though

sanctioned by the Supreme Court, has been since in high quarters

pronounced unconstitutional. If it erred as to the Bank, it may have

erred also as to fugitives from service. But the Act itself contains a

capital error on this very subject, so declared by the Supreme Court,

in pretending to vest a portion of the judicial power of the Nation

in State officers. This error takes from the Act all authority as an

interpretation of the Constitution. I dismiss it.

The decisions of the Supreme Court are entitled to great consideration,

and will not be mentioned by me except with respect. Among the memories

of my youth are happy days when I sat at the feet of this tribunal,

while MARSHALL presided, with STORY by his side. The pressure now

proceeds from the case of _Prigg_ v. _Pennsylvania_ (16 Peters, 539),

where is asserted the power of Congress. Without going into minute

criticism of this judgment, or considering the extent to which

it is extra-judicial, and therefore of no binding force,--all

which has been done at the bar in one State, and by an able court in

another,--but conceding to it a certain degree of weight as a rule to

the judiciary on this particular point, still it does not touch the

grave question which springs from the denial of Trial by Jury. This

judgment was pronounced by Mr. Justice Story. From the interesting

biography of the great jurist, recently published by his son, we learn

that the question of Trial by Jury was not considered as before the

Court; so that, in the estimation of the learned judge himself, it was

still an open question. Here are the words.

"One prevailing opinion, which has created great prejudice against

this judgment, is, that it denies the right of a person claimed as

a fugitive from service or labor to a trial by jury. This mistake

arises from supposing the case to involve the general question as

to the constitutionality of the Act of 1793. But in fact no such

question was in the case; and the argument, that the Act of 1793

was unconstitutional, because it did not provide for a trial by

jury according to the requisitions of the sixth article in the

Amendments to the Constitution, having been suggested to my father

on his return from Washington, he replied, that this question was

not argued by counsel nor considered by the Court, and that he

should still consider it an open one."[166]

[166] Life and Letters of Joseph Story, edited by his Son, Vol. II.

p. 396.

But whatever may be the influence of this judgment as a rule to the

judiciary, it cannot arrest our duty as legislators. And here I adopt

with entire assent the language of President Jackson, in his memorable

Veto, in 1832, of the Bank of the United States. To his course was

opposed the authority of the Supreme Court, and this is his reply.

"If the opinion of the Supreme Court cover the whole ground of

this Act, it ought not to control the coördinate authorities of

this Government. The Congress, the Executive, and the Court must

each for itself be guided by its own opinion of the Constitution.

_Each public officer who takes an oath to support the Constitution

swears that he will support it_ _as he understands it, and not

as it is understood by others._ It is as much the duty of the

House of Representatives, of the Senate, and of the President,

to decide upon the constitutionality of any bill or resolution

which may be presented to them for passage or approval, as it is

of the Supreme Judges, when it may be brought before them for

judicial decision.... The authority of the Supreme Court must not,

therefore, be permitted to control the Congress or the Executive,

when acting in their legislative capacities, but to have only such

influence as the force of their reasoning may deserve."[167]

[167] Senate Journal, 22d Cong. 1st Sess., pp. 438, 439.

With these authoritative words I dismiss this topic. The early

legislation of Congress and the decisions of the Supreme Court cannot

stand in our way. I advance to the argument.

* * * * *

(1.) _First, of the power of Congress over this subject._

The Constitution contains _powers_ granted to Congress, _compacts_

between the States, and _prohibitions_ addressed to the Nation and

to the States. A compact or prohibition may be accompanied by a

power,--but not necessarily, for it is essentially distinct in nature.

And here the single question arises, Whether the Constitution, by

grant, general or special, confers upon Congress any _power_ to

legislate on the subject of fugitives from service.

The whole legislative power of Congress is derived from two distinct

sources: first, from the general grant, attached to the long catalogue

of powers, "to make all laws which shall be necessary and proper for

carrying into execution the foregoing powers, and all other powers

vested by this Constitution in the Government of the United States,

or in any department or officer thereof"; and, secondly, from special

grants in other parts of the Constitution. As the provision in question

does not appear in the catalogue of powers, and does not purport to

vest any power in the Government of the United States, or in any

department or officer thereof, no power to legislate on this subject

can be derived from the general grant. Nor can any such power be

derived from any special grant in any other part of the Constitution;

for none such exists. The conclusion must be, that no power is

delegated to Congress over the surrender of fugitives from service.

In all contemporary discussions and comments, the Constitution was

constantly justified and recommended on the ground that the powers not

given to the Government were withheld. If under its original provisions

any doubt on this head could have existed, it was removed, so far as

language could remove it, by the Tenth Amendment, which, as we have

already seen, expressly declares, that "the powers _not delegated_ to

the United States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to the people."

Here, on the simple text of the Constitution, I might leave this

question. But its importance justifies more extended examination, in

twofold light: _first_, in the history of the Convention, revealing the

unmistakable intention of its members; and, _secondly_, in the true

principles of our Political System, by which the powers of the Nation

and of the States are respectively guarded.

Look first at the _history of the Convention_. The articles of the

old Confederation, adopted by the Continental Congress 15th November,

1777, though containing no reference to fugitives from service, had

provisions substantially like those in our present Constitution,

touching the privileges of citizens in the several States, the

surrender of fugitives from justice, and the credit due to the public

records of States. But, since the Confederation had no powers not

"expressly delegated," and as no power was delegated to legislate

on these matters, they were nothing more than articles of treaty or

compact. Afterwards, at the National Convention, these three provisions

found place in the first reported draft of a Constitution, and were

arranged in the very order which they occupied in the Articles of

Confederation. _The clause relating to public records stood last._ Mark

this fact.

When this clause, being in form merely a _compact_, came up for

consideration in the Convention, various efforts were made to graft

upon it a _power_. This was on the very day of the adoption of the

clause relating to fugitives from service. Charles Pinckney moved to

commit it, with a proposition for a _power_ to establish uniform laws

on the subject of bankruptcy and foreign bills of exchange. Mr. Madison

was in favor of a _power_ for the execution of judgments in other

States. Gouverneur Morris, on the same day, moved to commit a further

proposition for a _power_ "to determine the proof and effect of such

acts, records, and proceedings." Amidst all these efforts to associate

a power with this compact, it is clear that nobody supposed that any

such already existed. This narrative places the views of the Convention

beyond question.

The compact regarding public records, together with these various

propositions, was referred to a committee, on which were Mr. Randolph

and Mr. Wilson, with John Rutledge, of South Carolina, as chairman.

After several days, they reported the compact, with a _power_ in

Congress to prescribe by general laws the manner in which such records

shall be proved. A discussion ensued, in which Mr. Randolph complained

that the "definition of the powers of the Government was so loose as to

give it opportunities of usurping all the State powers. _He was for not

going further than the Report, which enables the Legislature to provide

for the effect of judgments._"[168] The clause of compact with the

power attached was then adopted, and is now part of the Constitution.

In presence of this solicitude for the preservation of "State powers,"

even while considering a proposition for an express power, and also

of the distinct statement of Mr. Randolph, that he "was for not going

further than the Report," it is evident that the idea could not then

have occurred, that a power was coupled with the naked clause of

compact on fugitives from service.

[168] Madison's Debates, Sept. 3, 1787.

At a later day the various clauses and articles severally adopted from

time to time in Convention were referred to a committee of revision

and arrangement, that they might be reduced to form as a connected

whole. _Here another change was made._ The clause relating to public

records, with the power attached, was taken from its original place

at the bottom of the clauses of compact, and promoted to stand first

in the article, as a distinct section, while the other clauses of

compact concerning citizens, fugitives from justice, and fugitives

from service, each and all without any power attached, by a natural

association compose but a single section, thus:--

"ARTICLE IV.

"SECTION 1. Full faith and credit shall be given in each State to

the public acts, records, and judicial proceedings of every other

State. _And the Congress may by general laws prescribe the manner

in which such acts, records, and proceedings shall be proved, and

the effect thereof._

"_Section 2._ The citizens of each State shall be entitled to all

privileges and immunities of citizens in the several States.

"A person charged in any State with treason, felony, or other

crime, who shall flee from justice, and be found in another State,

shall, on demand of the Executive authority of the State from

which he fled, be delivered up, to be removed to the State having

jurisdiction of the crime.

"No person held to service or labor in one State, under the laws

thereof, escaping into another, shall, in consequence of any law or

regulation therein, be discharged from such service or labor, but

shall be delivered up on claim of the party to whom such service or

labor may be due.

"SECTION 3. New States _may be admitted by the Congress_ into this

Union; but no new State shall be formed or erected within the

jurisdiction of any other State, nor any State be formed by the

junction of two or more States or parts of States, without the

consent of the Legislatures of the States concerned, _as well as of

the Congress_.

"_The Congress shall have power_ to dispose of and make all needful

rules and regulations respecting the territory or other property

belonging to the United States; and nothing in this Constitution

shall be so construed as to prejudice any claims of the United

States, or of any particular State.

"SECTION 4. _The United States shall guaranty_ to every State in

this Union a republican form of Government, and _shall protect_

each of them against invasion, and, on application of the

Legislature, or of the Executive (when the Legislature cannot be

convened), against domestic violence."

Here is the whole article, in its final form. It will be observed that

the third section, immediately following the triad section of compacts,

contains two specific powers,--one with regard to new States, and

the other with regard to the public Territory. These are naturally

grouped together, while the fourth section of this same article, which

is distinct in character, is placed by itself. In the absence of all

specific information, reason alone can determine why this arrangement

was made. But the conclusion is obvious, that, in the view of the

Committee and of the Convention, each of these sections differs from

the others. The first contains a compact with a grant of power. The

second contains provisions, all of which are simple compacts, and

two of which were confessedly simple compacts in the old Articles of

Confederation, from which, unchanged in character, they were borrowed.

The third is a twofold grant of power to Congress, without any compact.

The fourth is neither power nor compact merely, nor both united, but a

solemn injunction upon the National Government to perform an important

duty.

The framers of the Constitution were wise and careful, having a reason

for what they did, and understanding the language they employed. They

did not, after discussion, incorporate into their work any superfluous

provision; nor did they without design adopt the peculiar arrangement

in which it appears. Adding to the record compact an express grant of

power, they testified not only their desire for such power in Congress,

but their conviction that without such express grant it would not

exist. But if express grant was necessary in this case, it was equally

necessary in all the other cases. _Expressum facit cessare tacitum._

Especially, in view of its odious character, was it necessary in

the case of fugitives from service. Abstaining from any such grant,

and then grouping the bare compact with other similar compacts,

separate from every grant of power, they testified their purpose most

significantly. Not only do they decline all addition to the compact

of any such power, but, to render misapprehension impossible, to

make assurance doubly sure, to exclude any contrary conclusion, they

punctiliously arrange the clauses, on the principle of _noscitur a

sociis_, so as to distinguish all the grants of power, but especially

to make the new grant of power, in the case of public records, stand

forth in the front by itself, severed from the naked compacts with

which it was originally associated.

Thus the proceedings of the Convention show that the founders

understood the necessity of _powers_ in certain cases, and, on

consideration, jealously granted them. A closing example will

strengthen the argument. Congress is expressly empowered "_to establish

an uniform rule of_ Naturalization, and _uniform laws_ on the subject

of Bankruptcies, _throughout the United States_." Without this

provision these two subjects would have fallen within the control of

the States, leaving the Nation powerless _to establish a uniform rule_

thereupon. Now, instead of the existing compact on fugitives from

service, it would have been easy, had any such desire prevailed, to

add this case to the clause on Naturalization and Bankruptcies, and

to empower Congress TO ESTABLISH A UNIFORM RULE FOR THE SURRENDER

OF FUGITIVES FROM SERVICE THROUGHOUT THE UNITED STATES. Then, of

course, whenever Congress undertook to exercise the power, all State

control of the subject would be superseded. The National Government

would have been constituted, like Nimrod, the mighty Hunter, with

power to gather the huntsmen, to halloo the pack, and to direct

the chase of men, ranging at will, without regard to boundaries

or jurisdictions, throughout all the States. But no person in the

Convention, not one of the reckless partisans of Slavery, was so

audacious as to make this proposition. Had it been distinctly made, it

would have been as distinctly denied.

The fact that the provision on this subject was adopted _unanimously_,

while showing the little importance attached to it _in the shape it

finally assumed_, testifies also that it could not have been regarded

_as a source of National power for Slavery_. It will be remembered

that among the members of the Convention were Gouverneur Morris, who

had said that he "NEVER would concur in upholding domestic

slavery,"--Elbridge Gerry, who thought we "ought to be careful

NOT _to give any sanction to it_,"--Roger Sherman, who "was

OPPOSED to a tax on slaves imported, _because it implied

they were property_,"--James Madison, who "thought it WRONG

to admit in the Constitution the idea that there could be property in

men,"--and Benjamin Franklin, who likened American slaveholders to

Algerine corsairs. In the face of these unequivocal judgments, it is

absurd to suppose that these eminent citizens consented _unanimously_

to any provision by which the National Government, the creature of

their hands, dedicated to Freedom, could become the most offensive

agent of Slavery.

Thus much for the evidence from the history of the Convention. But the

_true principles of our Political System_ are in harmony with this

conclusion of history; and here let me say a word of State Rights.

It was the purpose of our fathers to create a National Government,

and to endow it with adequate powers. They had known the perils of

imbecility, discord, and confusion, protracted through the uncertain

days of the Confederation, and they desired a government which should

be a true bond of Union and an efficient organ of national interests

at home and abroad. But while fashioning this agency, they fully

recognized the governments of the States. To the Nation were delegated

high powers, essential to the national interests, but specific in

character and limited in number. To the States and to the people were

reserved the powers, general in character and unlimited in number, not

delegated to the Nation or prohibited to the States.

The integrity of our Political System depends upon harmony in the

operations of the Nation and of the States. While the Nation within its

wide orbit is supreme, the States move with equal supremacy in their

own. But, from the necessity of the case, the supremacy of each in its

proper place excludes the other. The Nation cannot exercise rights

reserved to the States, nor can the States interfere with the powers

of the Nation. Any such action on either side is a usurpation. These

principles were distinctly declared by Mr. Jefferson in 1798, in words

often adopted since, and which must find acceptance from all parties.

"That the several States composing the United States of America

are not united on the principle of unlimited submission to

their General Government; but that by a compact, under the

style and title of a Constitution for the United States and of

Amendments thereto, they constituted a General Government for

special purposes, _delegated to that Government certain definite

powers_, reserving, each State to itself, the residuary mass

of right to their own self-government; and that _whensoever the

General Government assumes undelegated powers, its acts are

unauthoritative, void, and of no force_."[169]

[169] Kentucky Resolutions of 1798: Jefferson's Writings, Vol. IX.

p. 464. See also Elliot's Debates, Vol. IV., Appendix, p. 380.

I have already amply shown to-day that Slavery is in no respect

national,--that it is not within the sphere of national activity,--that

it has no "positive" support in the Constitution,--and that any

interpretation inconsistent with this principle would be abhorrent

to the sentiments of its founders. Slavery is a local institution,

peculiar to the States, and under the guardianship of State Rights.

It is impossible, without violence to the spirit and letter of the

Constitution, to claim for Congress any power to legislate either for

its abolition in the States or its support anywhere. _Non-Intervention_

is the rule prescribed to the Nation. Regarding the question in its

more general aspects only, and putting aside, for the moment, the

perfect evidence from the records of the Convention, it is palpable

that there is no _national fountain_ out of which the existing Slave

Act can possibly spring.

But this Act is not only an unwarrantable assumption of power by the

Nation, it is also an infraction of rights reserved to the States.

Everywhere within their borders the States are the peculiar guardians

of _personal liberty_. By Jury and Habeas Corpus to save the citizen

harmless against all assault is among their duties and rights. To his

State the citizen, when oppressed, may appeal; nor should he find that

appeal denied. But this Act despoils him of rights, and despoils his

State of all power to protect him. It subjects him to the wretched

chance of false oaths, forged papers, and facile commissioners, and

takes from him every safeguard. Now, if the slaveholder has a right

to be secure _at home_ in the enjoyment of _Slavery_, so also has

the freeman of the North--and every person there is presumed to be

a freeman--an equal right to be secure _at home_ in the enjoyment

of _Freedom_. The same principle of State Eights by which Slavery

is protected in the Slave States throws an impenetrable shield over

Freedom in the Free States. And here, let me say, is the only security

for Slavery in the Slave States, as for Freedom in the Free States. In

the present fatal overthrow of State Rights you teach a lesson which

may return to plague the teacher. Compelling the National Government to

stretch its Briarean arms into the Free States for the sake of Slavery,

you show openly how it may stretch these same hundred giant arms into

the Slave States for the sake of Freedom. This lesson was not taught by

our fathers.

Here I end this branch of the question. The true principles of our

Political System, the history of the National Convention, the natural

interpretation of the Constitution, all teach that this Act is a

usurpation by Congress of powers that do not belong to it, and an

infraction of rights secured to the States. It is a sword, whose

handle is at the National Capital, and whose point is everywhere in

the States. A weapon so terrible to Personal Liberty the Nation has no

power to grasp.

* * * * *

(2.) _And now of the denial of Trial by Jury._

Admitting, for the moment, that Congress is intrusted with power over

this subject, which truth disowns, still the Act is again radically

unconstitutional from its denial of Trial by Jury in a question of

Personal Liberty and a suit at Common Law. Since on the one side there

is a claim of property, and on the other of liberty, both property and

liberty are involved in the issue. To this claim on either side is

attached Trial by Jury.

To me, Sir, regarding this matter in the light of the Common Law and

in the blaze of free institutions, it has always seemed impossible to

arrive at any other conclusion. If the language of the Constitution

were open to doubt, which it is not, still all the presumptions of

law, all the leanings to Freedom, all the suggestions of justice,

plead angel-tongued for this right. Nobody doubts that Congress, if

it legislates on this matter, _may_ allow a Trial by Jury. But if it

_may_, so overwhelming is the claim of justice, it MUST.

Beyond this, however, the question is determined by the precise letter

of the Constitution.

Several expressions in the provision for the surrender of fugitives

from service show the essential character of the proceedings. In the

first place, the person must be, not merely _charged_, as in the case

of fugitives from justice, but actually _held to service_ in the State

from which he escaped. In the second place, he must "be delivered up

on claim of the party to whom such service or labor may be _due_."

These two facts, that he was _held_ to service, and that his service

was _due_ to his claimant, are directly placed in issue, and must be

proved. Two necessary incidents of the delivery may also be observed.

First, it is made in the State where the fugitive is found; and,

secondly, it restores to the claimant complete control over the person

of the fugitive. From these circumstances it is evident that the

proceedings cannot be regarded, in any just sense, as preliminary, or

ancillary to some future formal trial, but as complete in themselves,

final and conclusive.

These proceedings determine on the one side the question of Property,

and on the other the sacred question of Personal Liberty in its most

transcendent form,--Liberty not merely for a day or a year, but for

life, and the Liberty of generations that shall come after, so long as

Slavery endures. To these questions the Constitution, by two specific

provisions, attaches Trial by Jury. One is the familiar clause,

already adduced: "No _person_ shall be deprived of life, _liberty_,

or property, _without due process of law_,"--that is, without due

proceeding at law, with Trial by Jury. Not stopping to dwell on this,

I press at once to the other provision, which is still more express:

"In suits at Common Law, where the value in controversy shall exceed

twenty dollars, the right of Trial by Jury shall be preserved." This

clause, which does not appear in the Constitution as first adopted, was

suggested by the very spirit of Freedom. At the close of the National

Convention, Elbridge Gerry refused to sign the Constitution because,

among other things, it established "a tribunal _without juries_, a Star

Chamber as to civil cases."[170] Many united in his opposition, and on

the recommendation of the First Congress this additional safeguard was

adopted as an amendment.

[170] Madison's Debates, Sept. 15, 1787.

Now, regarding the question as one of Property, or of Personal

Liberty, in either alternative the Trial by Jury is secured. For this

position authority is ample. In the debate on the Fugitive Slave Bill

of 1817-18, a Senator from South Carolina, Mr. Smith, anxious for

the asserted right of property, objected, on this very floor, to a

reference of the question, under the writ of Habeas Corpus, to a judge

without a jury. Speaking solely for Property, these were his words.

"This would give a judge the sole power of deciding _the right of

property the master claims in his slave, instead of trying that

right by a jury, as prescribed by the Constitution_. He would be

judge of matters of law and matters of fact, clothed with all the

powers of a jury as well as the powers of a court. Such a principle

is unknown in your system of jurisprudence. _Your Constitution has

forbid it._ It preserves the right of Trial by Jury in all cases

where the value in controversy exceeds twenty dollars."[171]

[171] Annals of Congress, 15th Cong. 1st Sess., March 6, 1818, col.

232.

But this provision has been repeatedly discussed by the Supreme

Court, so that its meaning is not open to doubt. Three conditions are

necessary: _first_, the proceeding must be "a suit"; _secondly_, "at

Common Law"; and, _thirdly_, "where the value in controversy exceeds

twenty dollars." In every such case "the right of Trial by Jury _shall_

be preserved." Judgments of the Supreme Court cover each of these

points.

_First._ In the case of _Cohens_ v. _Virginia_ (6 Wheaton, 407), the

Court say: "What is a _suit_? We understand it to be the prosecution

or pursuit of some _claim_, demand, or request." Of course, then, the

"claim" for a fugitive must be a "suit."

_Secondly._ In the case of _Parsons_ v. _Bedford et al._ (3 Peters,

447), while considering this very clause, the Court say: "By _Common

Law_ the framers of the Constitution meant ... 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 a just sense, the Amendment may well 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_."

Now, since the claim for a fugitive is not a suit in Equity or

Admiralty, but a suit to settle what are called legal rights, it must

be a "suit at Common Law."

_Thirdly._ In the case of _Lee_ v. _Lee_ (8 Peters, 44), on a question

whether "the value in controversy" was "one thousand dollars or

upwards," it was objected, that the appellants, who were petitioners

for Freedom, were not of the value of one thousand dollars. But

the Court said: "The matter in dispute is the Freedom of the

petitioners.... _This is not susceptible of a pecuniary valuation...._

We entertain no doubt of the jurisdiction of the Court."[172] Of

course, then, since Liberty is above price, the claim to any fugitive

always and necessarily presumes that "the value in controversy exceeds

twenty dollars."

[172] The rule of the Roman law was explicit: _Neque humanum fuerit

ob rei pecuniariæ quæstlonem libertati moram fieri._ This is a

text of Ulpian (Digestorum Lib. XL. Tit. V., _De Fideicommissariis

Libertartibus_, 37). In the same spirit is the mediæval verse,--

"Non bene pro toto libertas venditur auro."

By these successive steps, sustained by judgments of the highest

tribunal, it appears, as in a diagram, that the right of Trial by Jury

is secured to the fugitive from service.

This conclusion needs no additional authority; but it receives curious

illustration from the ancient records of the Common Law, so familiar

and dear to the framers of the Constitution. It is said by Mr. Burke,

in his magnificent speech on Conciliation with America, that "nearly

as many of Blackstone's Commentaries were sold in America as in

England,"[173] carrying thither the knowledge of those vital principles

of Freedom which were the boast of the British Constitution. Thus

imbued, the earliest Continental Congress, in 1774, declared, "That the

respective Colonies are entitled to the Common Law of England, and more

especially to the great and inestimable privilege of being tried by

their Peers of the Vicinage, according to the course of that law."[174]

Amidst the troubles which heralded the Revolution, the Common Law was

claimed as a birthright.

[173] Works (ed. 1801), Vol. III. p. 55.

[174] Declaration of Rights, October 14, 1774: Journals of

Congress, Vol. I. p. 29.

Now, although the Common Law may not be approached as a source of

jurisdiction under the National Constitution,--and on this interesting

topic I forbear to dwell,--_it is clear that it may be employed to

determine the meaning of technical terms in the Constitution borrowed

from this law_. This, indeed, is expressly sanctioned by Mr. Madison,

in his celebrated Report of 1799, while limiting the extent to

which the Common Law may be employed. Thus by this law we learn the

nature of _Trial by Jury_, which, though secured, is not described

by the Constitution; also what are _Attainder_, _Habeas Corpus_, and

_Impeachment_, all technical terms of the Constitution, borrowed from

the Common Law. By this law, and its associate Chancery, we learn what

are _cases in law and equity_ to which the judicial power of the

United States is extended. These instances I adduce merely for example.

Also in the same way we learn what are _suits at Common Law_.

Now, on principle and authority, _a claim for the delivery of a

fugitive slave is a suit at Common Law_, and is embraced naturally and

necessarily in this class of judicial proceedings. This proposition

can be placed beyond question. And here, especially, let me ask the

attention of all learned in the law. On this point, as on every other

in this argument, I challenge inquiry and answer.

History painfully records, that, during the early days of the Common

Law, and down even to a late period, a system of Slavery existed in

England, known under the name of _villenage_. The slave was generally

called a _villein_, though in the original Latin forms of judicial

proceedings he was termed _nativus_, implying slavery by birth. The

incidents of this condition are minutely described, and also the

mutual remedies of master and slave, all of which were regulated by

the Common Law. Slaves sometimes then, as now, _escaped_ from their

masters. The claim for them, after such _escape_, was prosecuted by a

"suit at Common Law," to which, as to every suit at Common Law, Trial

by Jury was necessarily attached. Blackstone, in his Commentaries, in

words which must have been known to all the lawyers of the Convention,

said of _villeins_: "They could not leave their lord without his

permission; _but if they ran away_, or were purloined from him,

_might be CLAIMED and recovered by ACTION, like beasts or other

chattels_."[175] This very word, "action," of itself implies "a

suit at Common Law" with Trial by Jury.

[175] Commentaries, Vol. II. p. 93.

From other sources we learn precisely what the _action_ was. That great

expounder of the ancient law, Mr. Hargrave, says, "Our Year Books

and Books of Entries are full of the forms used in pleading a title

to villeins regardant."[176] Though no longer of practical value in

England, they remain as monuments of jurisprudence, and as mementos of

a barbarous institution. He thus describes the remedy of the master at

Common Law.

"The lord's remedy for a _fugitive villein_ was either by seizure

or by suing out a writ of _Nativo Habendo_, or Neifty, as it is

sometimes called. If the lord seized, the villein's most effectual

mode of recovering liberty was by the writ of _Homine Replegiando_,

which had great advantage over the writ of _Habeas Corpus_. In

the _Habeas Corpus_ the return cannot be contested by pleading

against the truth of it, and consequently on a _Habeas Corpus the

question of liberty cannot go to a jury for trial_.... But in the

_Homine Replegiando_ it was otherwise.... The plaintiff, ... on the

defendant's pleading the villenage, had the same opportunity of

contesting it as when impleaded by the lord in a _Nativo Habendo_.

If the lord sued out a _Nativo Habendo_, and the villenage was

denied, in which case the sheriff could not seize the villein, _the

lord was then to enter his plaint in the county court_; and as the

sheriff was not allowed to try the question of villenage in his

court, the lord could not have any benefit from the writ, without

removing the cause by the writ of _Pone_ into the King's Bench or

Common Pleas."[177]

[176] Argument in Sommersett's Case: Howell's State Trials, XX. 42.

[177] Ibid., 38, 39, note.

The authority of Mr. Hargrave is sufficient. But I mean to place this

matter beyond all cavil. From the Digest of Lord Chief Baron Comyns,

which at the adoption of the Constitution was among the classics of

our jurisprudence, I derive another description of the remedy.

"If the lord claims an inheritance in his villein, _who flies from

his lord against his will_, and lives in a place out of the manor

to which he is regardant, the lord shall have a _Nativo Habendo_.

And upon such writ, directed to the sheriff, he may seize him who

does not deny himself to be a villein. But if the defendant say

that he is a freeman, the sheriff cannot seize him, but the lord

must remove the writ by _Pone_ before the Justices in Eyre, or in

C.B., _where he must count upon it_."[178]

An early writer of peculiar authority, Fitzherbert, in his _Natura

Brevium_, on the writs of the Common Law, thus describes these

proceedings.

[178] Comyns's Digest: Remedy for a Villein, (C. 1,) _Nativo

Habendo_.

"The writ _de Nativo Habendo_ lieth for the lord who claimeth

inheritance in any villein, _when his villein is run from him_, and

is remaining within any place out of the manor unto which he is

regardant, or when he departeth from his lord against the lord's

will: and the writ shall be directed unto the sheriff.... And the

sheriff may seize the villein, and deliver him unto his lord, if

the villein confess unto the sheriff that he is his villein; but if

the villein say to the sheriff that he is frank, then it seemeth

that the sheriff ought not to seize him: as it is in a replevin,

if the defendant claim property, the sheriff cannot replevy

the cattle, but the party ought to sue a writ _de Proprietate

Probanda_: and so if the villein say that he is a freeman, &c.,

then the sheriff ought not to seize him, but then the lord ought

to sue a _Pone_ to remove the plea before the Justices in the

Common Pleas, or before the Justices in Eyre. But if the villein

purchase a writ _de Libertate Probanda_ before the lord hath sued

the _Pone_ to remove the plea before the Justices, then that writ

of _Libertate Probanda_ is a _Supersedeas_ unto the lord, that he

proceed not upon the writ of _Nativo Habendo_ till the Eyre of

the Justices, or till the day of the plea be adjourned before the

Justices, and that the lord ought not to seize the villein in the

mean time."[179]

[179] Fitzherbert, Natura Brevium, Vol. I. p. 77.

These authorities are not merely applicable to the general question of

freedom, but they distinctly contemplate the case of _fugitive_ slaves,

and the "suits at Common Law" for their rendition. Blackstone speaks

of villeins who "ran away"; Hargrave of "fugitive villeins"; Comyns of

a villein "who flies from his lord against his will"; and Fitzherbert

of the proceedings of the lord "when his villein is run from him." The

forms, writs, counts, pleadings, and judgments in these suits are all

preserved among the precedents of the Common Law. The writs are known

as original writs, which the party on either side, at the proper stage,

could sue out of right without showing cause. The writ of _Libertate

Probanda_ for a fugitive slave was in this form:--

"LIBERTATE PROBANDA.

"The king to the sheriff, &c. A. and B. her sister have showed unto

us, that, whereas they are free women, and ready to prove their

liberty, F., claiming them to be his neifs unjustly, vexes them;

and therefore we command you, that, if the aforesaid A. and B.

shall make you secure touching the proving of their liberty, then

put that plea before our justices at the first assizes, when they

shall come into those parts, because proof of this kind belongeth

not to you to take; and in the mean time cause the said A. and B.

to have peace thereupon, and tell the aforesaid F. that he may

be there, if he will, to prosecute his plea thereof against the

aforesaid A. and B. And have there this writ. Witness, &c."[180]

[180] Fitzherbert, Vol. I. p. 77.

By these various proceedings, all ending in Trial by Jury, Personal

Liberty was guarded, even in the unrefined and barbarous days of the

early Common Law. Any person claimed as a fugitive slave might invoke

this Trial as a sacred right. Whether the master proceeded by seizure,

as he might, or by legal process, Trial by Jury, in a suit at Common

Law, before one of the high courts of the realm, was equally secured.

In the case of seizure, the fugitive, reversing the proceedings, might

institute process against his master, and appeal to a Court and Jury.

In the case of process by the master, the watchful law secured to the

fugitive the same protection. By no urgency of force, by no device

of process, could any person claimed as a slave be defrauded of this

Trial. Such was the Common Law. If its early boast, that there could

be no slaves in England, fails to be true, this at least may be its

pride,--that, according to its indisputable principles, the liberty of

every man was placed under the guard of Trial by Jury.

These things may seem new to us; but they must have been known to the

members of the Convention, particularly to those from South Carolina,

through whose influence the provision on this subject was adopted.

Charles Cotesworth Pinckney and Mr. Rutledge had studied law at the

Temple, one of the English Inns of Court. It would be a discredit to

them, and also to other learned lawyers, members of the Convention,

to suppose that they were not conversant with the principles and

precedents directly applicable to this subject, all of which are

set down in works of acknowledged authority, and at that time of

constant professional study. Only a short time before, in the case of

Sommersett, they had been most elaborately examined in Westminster

Hall. In a forensic effort of unsurpassed learning and elevation, which

of itself vindicates for its author his great juridical name, Mr.

Hargrave had fully made them known to such as were little acquainted

with the more ancient sources. But even if we could suppose them

unknown to the lawyers of the Convention, they are none the less

applicable in determining the true meaning of the Constitution.

The conclusion is explicit. Clearly and indisputably, in England, the

country of the Common Law, a claim for a fugitive slave was "a suit at

Common Law," recognized "among its old and settled proceedings." To

question this, in the face of authentic principles and precedents, is

preposterous. As well might it be questioned, that a writ of replevin

for a horse, or a writ of right for land, was "a suit at Common Law."

It follows, then, that this _technical term_ of the Constitution,

read in the illumination of the Common Law, naturally and necessarily

embraces proceedings for the recovery of fugitive slaves, _if any

such be instituted or allowed under the Constitution_. And thus, by

the letter of the Constitution, in harmony with the requirements of

the Common Law, all such persons, when claimed by their masters, are

entitled to Trial by Jury.

* * * * *

Such, Sir, is the argument, briefly uttered, against the

constitutionality of the Slave Act. Much more I might say on this

matter; much more on the two chief grounds of objection which I have

occupied. But I am admonished to hasten on.

Opposing this Act as doubly unconstitutional from the want of power

in Congress and from the denial of Trial by Jury, I find myself again

encouraged by the example of our Revolutionary Fathers, in a case which

is a landmark of history. The parallel is important and complete. In

1765, the British Parliament, by a notorious statute, attempted to draw

money from the Colonies through a stamp tax, while the determination

of certain questions of forfeiture under the statute was delegated,

not to the Courts of Common Law, but to Courts of Admiralty without a

jury. The Stamp Act, now execrated by all lovers of Liberty, had this

extent and no more. Its passage was the signal for a general flame of

opposition and indignation throughout the Colonies. It was denounced

as contrary to the British Constitution, on two principal grounds:

_first_, as a usurpation by Parliament of powers not belonging to it,

and an infraction of rights secured to the Colonies; and, _secondly_,

as a denial of Trial by Jury in certain cases of property.

The public feeling was variously expressed. At Boston, on the day

the Act was to take effect, the shops were closed, the bells of the

churches tolled, and the flags of the ships hung at half-mast. At

Portsmouth, in New Hampshire, the bells were tolled, and the friends of

Liberty were summoned to hold themselves in readiness for her funeral.

At New York, the obnoxious Act, headed "Folly of England and Ruin

of America," was contemptuously hawked about the streets. Bodies of

patriots were organized everywhere under the name of "Sons of Liberty."

The merchants, inspired then by Liberty, resolved to import no more

goods from England until the repeal of the Act. The orators also spoke.

James Otis with fiery tongue appealed to Magna Charta.

Of all the States, Virginia--whose shield bears the image of Liberty

trampling upon chains--first declared herself by solemn resolutions,

which the timid thought "treasonable,"[181] but which soon found

response. New York followed. Massachusetts came next, speaking by the

pen of the inflexible Samuel Adams. In an Address from the Legislature

to the Governor, the true grounds of opposition to the Stamp Act,

coincident with the two radical objections to the Slave Act, are

clearly set forth.

[181] Hutchinson, History of Massachusetts, Vol. III. p. 119.

"You are pleased to say that the Stamp Act is an Act of Parliament,

and as such ought to be observed. This House, Sir, has too

great a reverence for the Supreme Legislature of the nation _to

question its just authority_. It by no means appertains to us to

presume to adjust the boundaries of the _power_ of Parliament;

_but boundaries there undoubtedly are_. We hope we may without

offence put your Excellency in mind of that most grievous sentence

of excommunication solemnly denounced by the Church in the name

of the Sacred Trinity, in the presence of King Henry the Third

and the estates of the realm, _against all those who should make

statutes, OR OBSERVE THEM, BEING MADE, contrary to the liberties

of Magna Charta_.... The Charter of this Province invests the

General Assembly with the _power_ of making laws for its internal

government and taxation; and this Charter has never yet been

forfeited. The Parliament has a right to make all laws within the

limits of their own constitution.... The people complain that the

Act invests a single judge of the Admiralty with a power to try and

determine their property, in controversies arising from internal

concerns, _without a jury_, contrary to the very expression of

Magna Charta, that no freeman shall be amerced but by the oath of

good and lawful men of the vicinage.... We deeply regret it that

the Parliament has seen fit to pass such an act as the Stamp Act;

we flatter ourselves that the hardships of it will shortly appear

to them in such a point of light as shall induce them, in their

wisdom, to repeal it; _in the mean time we must beg your Excellency

to excuse us from doing anything to assist in the execution of

it_."[182]

[182] Journal of the House of Representatives of Massachusetts Bay,

October 24, 1765, pp. 131-138. Hutchinson, Vol. III., Appendix, pp.

472-474.

Thus in those days spoke Massachusetts. The parallel still proceeds.

The unconstitutional Stamp Act was welcomed in the Colonies by the

Tories of that day precisely as the unconstitutional Slave Act is

welcomed by large and imperious numbers among us. Hutchinson, at that

time Lieutenant-Governor and Chief-Justice of Massachusetts, wrote

to Ministers in England: "The Stamp Act is received among us with as

much decency as could be expected. It leaves no room for evasion, and

will execute itself."[183] Like the Judges of our day, in charges to

grand juries, he resolutely vindicated the Act, and admonished "the

jurors and people" to obey.[184] Like Governors of our day, Bernard, in

his speech to the Legislature of Massachusetts, demanded unreasoning

submission. "I shall not," says this British Governor, "enter into

any disquisition of the policy of the Act.... I have only to say that

it is an Act of the Parliament of Great Britain; ... and I trust that

the supremacy of that Parliament over all the members of their wide

and diffused empire never was and never will be denied within these

walls."[185] The military were against the people. A British major

of artillery at New York exclaimed, in tones not unlike those now

heard, "I will cram the stamps down their throats with the end of my

sword!"[186] The elaborate answer of Massachusetts, a paper of historic

grandeur, drawn by Samuel Adams, was pronounced "the ravings of a

parcel of wild enthusiasts."[187]

[183] Bancroft, History of the United States, Vol. V. p. 272.

[184] Ibid.

[185] Journal of the House of Representatives, September 25, 1765,

p. 119. Hutchinson, Vol. III., Appendix, pp. 467, 468.

[186] Bancroft, History of the United States, Vol. V. p. 332.

[187] Ibid., 349.

Thus in those days spoke the partisans of the Stamp Act. But their

weakness was soon manifest. In the face of an awakened community,

where discussion has free scope, no men, though supported by office

and wealth, can long maintain injustice. Earth, water, Nature they may

subdue; but Truth they cannot subdue. Subtle and mighty against all

efforts and devices, it fills every region of light with its majestic

presence. The Stamp Act was discussed and understood. Its violation of

constitutional rights was exposed. By resolutions of legislatures and

of town meetings, by speeches and writings, by public assemblies and

processions, the country was rallied in peaceful phalanx _against the

execution of the Act_. To this great object, within the bounds of Law

and the Constitution, were bent all the patriot energies of the land.

And here Boston took the lead. Her records at this time are full of

proud memorials. In formal instructions to her representatives, adopted

unanimously in Town Meeting at Faneuil Hall, "having been read several

times, and put paragraph by paragraph," the following rule of conduct

was prescribed.

"We therefore think it our indispensable duty, in justice to

ourselves and posterity, as it is our undoubted privilege, in the

most open and unreserved, but decent and respectful terms, to

declare our greatest dissatisfaction with this law: _and we think

it incumbent upon you by no means to join in any public measures

for countenancing and assisting in the execution of the same_,

but to use your best endeavors in the General Assembly to have

the inherent, unalienable rights of the people of this Province

asserted and vindicated, and left upon the public records, that

posterity may never have reason to charge the present times with

the guilt of tamely giving them away."[188]

[188] Town Records, MS., September 18; Boston Gazette, September

23, 1765.

Virginia responded to Boston. Many of her justices of the peace

surrendered their commissions, rather than aid in the enforcement of

the law, or be "instrumental in the destruction of their country's most

essential rights and liberties."[189]

[189] Pennsylvania Gazette, October 31, 1765. Annual Register for

1765, p. [53.]

As the opposition deepened, there was a natural tendency to outbreak

and violence. But this was carefully restrained. On one occasion, in

Boston, it showed itself in the lawlessness of a mob. But the town, at

a public meeting in Faneuil Hall, called without delay on the motion of

the opponents of the Stamp Act, with James Otis as chairman, condemned

the outrage. Eager in hostility to the execution of the Act, Boston

cherished municipal order, and constantly discountenanced all tumult,

violence, and illegal proceedings. Her equal devotion to these two

objects drew the praises and congratulations of other towns. In reply,

March 24, 1766, to an Address from the inhabitants of Plymouth, her own

consciousness of duty done is thus expressed.

"If the inhabitants of this metropolis have taken _the

warrantable and legal measures to prevent that misfortune, of

all_ _others the most to be dreaded, the execution of the Stamp

Act_, and, as a necessary means of preventing it, have made

any spirited applications for opening the custom-houses and

courts of justice,--_if at the same time they have bore their

testimony against outrageous tumults and illegal proceedings_,

and given any example of the love of peace and good order,

next to the consciousness of having done their duty is the

satisfaction of meeting with the approbation of any of their

fellow-countrymen."[190]

[190] Town Records, MS., March 24: Boston Gazette, March 31, 1766.

Learn now from the Diary of John Adams the results of this system.

"The year 1765 has been the most remarkable year of my life.

That enormous engine, fabricated by the British Parliament, for

battering down all the rights and liberties of America,--I mean

the Stamp Act,--has raised and spread through the whole continent

a spirit that will be recorded to our honor with all future

generations. In every Colony, from Georgia to New Hampshire

inclusively, the stamp distributors and inspectors have been

compelled by the unconquerable rage of the people to renounce

their offices. Such and so universal has been the resentment of

the people, that every man who has dared to speak in favor of the

stamps, or to soften the detestation in which they are held, how

great soever his abilities and virtues had been esteemed before, or

whatever his fortune, connections, and influence had been, has been

seen to sink into universal contempt and ignominy."[191]

[191] Diary, December 18, 1765: Works, Vol. II. p. 154.

The Stamp Act became a dead letter. At the meeting of Parliament

numerous petitions were presented, calling for its instant repeal.

Franklin, at that time in England, while giving his famous testimony

before the House of Commons, was asked whether he thought the

people of America would submit to this Act, if "moderated." His

brief, emphatic response was: "No, never, unless compelled by force

of arms."[192] Chatham, weak with disease, yet mighty in eloquence,

exclaimed in ever memorable words: "The gentleman tells us, America

is obstinate, America is almost in open rebellion. _Sir, I rejoice,

that America has resisted._ Three millions of people, so dead to all

the feelings of liberty as voluntarily to submit to be slaves, would

have been fit instruments to make slaves of the rest.... The Americans

have been wronged; they have been driven to madness by injustice....

Upon the whole, I will beg leave to tell the House what is really my

opinion. _It is, that the Stamp Act be repealed, absolutely, totally,

and immediately._"[193] It was repealed. Within less than a year from

its original passage, denounced and discredited, it was driven from the

Statute Book. In the charnel-house of history, with unclean things of

the Past, it now rots. Thither the Slave Act must follow.

[192] Hansard, Parliamentary History, January 28, 1766, Vol. XVI.

col. 140.

[193] Ibid., January 14, 1766, Vol. XVI. 104-108.

Sir, regarding the Stamp Act candidly and cautiously, free from

animosities of the time, it is impossible not to see, that, though

gravely unconstitutional, it was at most an infringement of _civil_

liberty only, not of _personal_ liberty. There was an unjust tax of

a few pence, with the chance of amercement by a single judge without

a jury; but by no provision of this Act was the _personal_ liberty

of any man assailed. No freeman could be seized under it as a slave.

Such an Act, though justly obnoxious to every lover of Constitutional

Liberty, cannot be viewed with the feelings of repugnance enkindled by

a statute which assails the personal liberty of every man, and under

which any freeman may be seized as a slave. Sir, in placing the Stamp

Act by the side of the Slave Act, I do injustice to that emanation of

British tyranny. Both infringe important rights: one, of property; the

other, the vital right of all, which is to other rights as soul to

body,--_the right of a man to himself_. Both are condemned; but their

relative condemnation must be measured by their relative characters.

As Freedom is more than property, as Man is above the dollar that he

earns, as heaven, to which we all aspire, is higher than earth, where

every accumulation of wealth must ever remain, so are the rights

assailed by an American Congress higher than those once assailed by the

British Parliament. And just in this degree must history condemn the

Slave Act more than the Stamp Act.

* * * * *

Sir, I might here stop. It is enough, in this place, and on this

occasion, to show the unconstitutionality of this enactment. Your duty

commences at once. All legislation hostile to the fundamental law of

the land should be repealed without delay. But the argument is not yet

exhausted. Even if this Act could claim any validity or apology under

the Constitution, which it cannot, _it lacks that essential support in

the Public Conscience of the States, where it is to be enforced, which

is the life of all law, and without which any law must become a dead

letter_.

The Senator from South Carolina (Mr. BUTLER) was right, when, at the

beginning of the session, he pointedly said that a law which can be

enforced only by the bayonet is no law.[194] Sir, it is idle to suppose

that an Act of Congress becomes effective merely by compliance with

the forms of legislation. Something more is necessary. The Act must

be in harmony with the prevailing public sentiment of the community

upon which it bears. I do not mean that the cordial support of every

man or of every small locality is necessary; but I do mean that the

public feelings, the public convictions, the public conscience, must

not be touched, wounded, lacerated, by every endeavor to enforce it.

With all these it must be so far in harmony, that, like the laws by

which property, liberty, and life are guarded, it may be administered

by the ordinary process of courts, without jeoparding the public

peace or shocking good men. If this be true as a general rule, if the

public support and sympathy be essential to the life of all law, this

is especially the case in an enactment which concerns the important

and sensitive rights of Personal Liberty. In conformity with this

principle, the Legislature of Massachusetts, in 1850, by formal

resolution, declared with singular unanimity:--

"We hold it to be the duty of Congress to pass such laws only in

regard thereto as will be sustained by the public sentiment of the

Free States, where such laws are to be enforced."[195]

[194] Speech on the Compromise Measures, December 16, 1851:

Congressional Globe, Vol. XXIV, p. 93.

[195] Resolves concerning Slavery, May 1, 1850: Acts and Resolves,

1849-51, p. 519.

The duty of consulting these sentiments was recognized by Washington.

While President of the United States, towards the close of his

administration, he sought to recover a slave who had fled to New

Hampshire. His autograph letter to Mr. Whipple, the Collector at

Portsmouth, dated at Philadelphia, 28th November, 1796, which I now

hold in my hand, and which has never before seen the light, after

describing the fugitive, and particularly expressing the desire of

"her mistress," Mrs. Washington, for her return, employs the following

decisive language:--

"I do not mean, however, by this request, that such violent

measures should be used AS WOULD EXCITE A MOB OR RIOT, WHICH MIGHT

BE THE CASE, IF SHE HAS ADHERENTS, OR EVEN UNEASY SENSATIONS IN THE

MINDS OF WELL-DISPOSED CITIZENS. Rather than either of these should

happen, I would forego her services altogether,--and the example,

also, which is of infinite more importance.

"GEORGE WASHINGTON."

Mr. Whipple, in his reply, dated at Portsmouth, December 22, 1796, an

autograph copy of which I have, recognizes the rule of Washington.

"I will now, Sir, agreeably to your desire, send her to Alexandria,

_if it be practicable without the consequences which you

except,--that of exciting a riot or a mob, or creating uneasy

sensations in the minds of well-disposed persons_. The first cannot

be calculated beforehand; it will be governed by the popular

opinion of the moment, or the circumstances that may arise in

the transaction. The latter may be sought into and judged of by

conversing with such persons, without discovering the occasion. So

far as I have had opportunity, I perceive that different sentiments

are entertained on this subject."

The fugitive was never returned, but lived in freedom to a good old

age, down to a very recent day, a monument of the just forbearance

of him whom we aptly call Father of his Country. True, he sought her

return. This we must regret, and find its apology. He was at the

time a slaveholder. Often expressing himself with various degrees of

force against Slavery, and promising his suffrage for its abolition,

he did not see this wrong as he saw it at the close of life, in the

illumination of another sphere. From this act of Washington, still

swayed by the policy of the world, I appeal to Washington writing

his will. From Washington on earth I appeal to Washington in heaven.

Seek not by his name to justify any such effort. His death is above

his life. His last testament cancels his authority as a slaveholder.

However he may have appeared before man, he came into the presence

of God only as liberator of his slaves. Grateful for this example, I

am grateful also, that, while slaveholder, and seeking the return of

a fugitive, he has left in permanent record a rule of conduct which,

if adopted by his country, will make Slave-Hunting impossible. The

chances of riot, or mob, or "even uneasy sensations in the minds of

well-disposed citizens," must prevent any such pursuit.[196]

Sir, the existing Slave Act cannot be enforced without violating the

precept of Washington. Not merely "uneasy sensations of well-disposed

citizens," but rage, tumult, commotion, mob, riot, violence, death,

gush from its fatal overflowing fountains:--

"Hoc fonte derivata clades

In patriam populumque fluxit."[197]

[196] The possibility of scandal and commotion was recognized by

the great doctor of the Church, St. Thomas Aquinas, as proper to

determine human conduct. According to him, an unjust law is not

binding in conscience, _nisi forte propter vitandum scandalum vel

turbationem_.--_Summa Theologica_, 1ma 2dæ, Quæst. XCVI. art. 4.

[197] Hor., Carm. III. vi. 19, 20.

Not a case occurs without endangering the public peace. Workmen are

brutally dragged from employments to which they are wedded by years

of successful labor; husbands are ravished from wives, and parents

from children. Everywhere there is disturbance,--at Detroit, Buffalo,

Harrisburg, Syracuse, Philadelphia, New York, Boston. At Buffalo

the fugitive was cruelly knocked by a log of wood against a red-hot

stove, and his mock trial commenced while the blood still oozed from

his wounded head. At Syracuse he was rescued by a sudden mob; so also

at Boston. At Harrisburg the fugitive was shot; at Christiana the

Slave-Hunter was shot. At New York unprecedented excitement, always

with uncertain consequences, has attended every case. Again at Boston

a fugitive, according to received report, was first seized under base

pretext that he was criminal; arrested only after deadly struggle;

guarded by officers acting in violation of the State laws; tried in

a court-house girdled by chains, contrary to the Common Law; finally

surrendered to Slavery by trampling on the criminal process of the

State, under an escort in violation again of the laws of the State,

while the pulpits trembled, and the whole people, not merely "uneasy,"

but swelling with ill-suppressed indignation, though, for the sake

of order and tranquillity, without violence, witnessed the shameful

catastrophe.

Oppression by an individual is detestable; but oppression by law

is worse. Hard and inscrutable, when the law, to which the citizen

naturally looks for protection, becomes itself a standing peril. As the

sword takes the place of the shield, despair settles down like a cloud.

Montesquieu painted this most cruel tyranny, when he said that the

man is drowned by the very plank on which he thought to escape.[198]

And Moses exposes a kindred harshness, when, in commandment to the

Israelites, he mysteriously enjoins; "Thou shalt not seethe a kid in

its mother's milk"[199] Alas! every sacrifice under the form of law is

only a repetition of this forbidden offence. The victim is the innocent

kid, and the law is its mother's milk.

[198] Grimm, Correspondance, Février, 1786, Tom. XIV. pp. 453, 454.

[199] Deuteronomy, xiv. 21.

With every attempt to administer the Slave Act, it constantly becomes

more revolting, particularly in its influence on the agents it enlists.

Pitch cannot be touched without defilement, and all who lend themselves

to this work seem at once and unconsciously to lose the better part of

man. The spirit of the law passes into them, as the devils entered the

swine. Upstart commissioners, mere mushrooms of courts, vie and re-vie

with each other. Now by indecent speed, now by harshness of manner, now

by denial of evidence, now by crippling the defence, and now by open,

glaring wrong, they make the odious Act yet more odious. Clemency,

grace, and justice die in its presence. All this is observed by the

world. Not a case occurs which does not harrow the souls of good men,

bringing tears of sympathy to the eyes, and those other noble tears

which "patriots shed o'er dying laws."

Sir, I shall speak frankly. If there be an exception to this feeling,

it will be found chiefly with a peculiar class. It is a sorry fact,

that the "mercantile interest," in unpardonable selfishness, twice

in English history, frowned upon endeavors to suppress the atrocity

of Algerine Slavery, that it sought to baffle Wilberforce's great

effort for the abolition of the African slave-trade, and that, by a

sordid compromise, at the formation of our Constitution, it exempted

the same detested, Heaven-defying traffic from American judgment. And

now representatives of this "interest," forgetful that Commerce is

born of Freedom, join in hunting the Slave. But the great heart of the

people recoils from this enactment. It palpitates for the fugitive, and

rejoices in his escape. Sir, I am telling you facts. The literature

of the age is all on his side. Songs, more potent than laws, are for

him. Poets, with voices of melody, sing for Freedom. Who could tune

for Slavery? They who make the permanent opinion of the country, who

mould our youth, whose words, dropped into the soul, are the germs

of character, supplicate for the Slave. And now, Sir, behold a new

and heavenly ally. A woman, inspired by Christian genius, enters the

lists, like another Joan of Arc, and with marvellous power sweeps the

popular heart. Now melting to tears, and now inspiring to rage, her

work everywhere touches the conscience, and makes the Slave-Hunter

more hateful. In a brief period, nearly one hundred thousand copies

of "Uncle Tom's Cabin" have been already circulated.[200] But this

extraordinary and sudden success, surpassing all other instances in the

records of literature, cannot be regarded as but the triumph of genius.

Better far, it is the testimony of the people, by an unprecedented act,

against the Fugitive Slave Bill.

[200] This was the number at the delivery of this speech. But the

circulation has gone on indefinitely.

These things I dwell upon as incentives and tokens of an existing

public sentiment, rendering this Act practically inoperative, except as

a tremendous engine of horror. Sir, the sentiment is just. Even in the

lands of Slavery, the slave-trader is loathed as an ignoble character,

from whom the countenance is turned away; and can the Slave-Hunter

be more regarded, while pursuing his prey in a land of Freedom? In

early Europe, in barbarous days, while Slavery prevailed, a Hunting

Master--_nachjagender Herr_, as the Germans called him--was held in

aversion. Nor was this all. The fugitive was welcomed in the cities,

and protected against pursuit. Sometimes vengeance awaited the Hunter.

Down to this day, at Revel, now a Russian city, a sword is proudly

preserved with which a Hunting Baron was beheaded, who, in violation of

the municipal rights of the place, seized a fugitive slave. Hostile to

this Act as our public sentiment may be, it exhibits no similar trophy.

The State laws of Massachusetts have been violated in the seizure of a

fugitive slave; but no sword, like that of Revel, now hangs at Boston.

I have said, Sir, that this sentiment is just. And is it not? Every

escape from Slavery necessarily and instinctively awakens the regard

of all who love Freedom. The endeavor, though unsuccessful, reveals

courage, manhood, character. No story is read with greater interest

than that of our own Lafayette, when, aided by a gallant South

Carolinian, in defiance of despotic Austrian ordinances, kindred to our

Slave Act, he strove to escape from the bondage of Olmütz. Literature

pauses with exultation over the struggles of Cervantes, the great

Spaniard, while a slave in Algiers, to regain the liberty for which he

declared to his companions "we ought to risk life itself, Slavery being

the greatest evil that can fall to the lot of man."[201] Science, in

all her manifold triumphs, throbs with pride and delight, that Arago,

astronomer and philosopher,--devoted republican also,--was rescued from

barbarous Slavery to become one of her greatest sons. Religion rejoices

serenely, with joy unspeakable, in the final escape of Vincent de

Paul. In the public square of Tunis, exposed to the inspection of

traffickers in human flesh, this illustrious Frenchman was subjected

to every vileness of treatment, compelled, like a horse, to open his

mouth, to show his teeth, to trot, to run, to exhibit his strength in

lifting burdens, and then, like a horse, legally sold in market overt.

Passing from master to master, after protracted servitude, he achieved

his freedom, and, regaining France, commenced that resplendent career

of charity by which he is placed among the great names of Christendom.

Princes and orators have lavished panegyric upon this fugitive slave,

and, in homage to his extraordinary virtues, the Catholic Church has

introduced him into the company of Saints.

[201] Navarrete, Vida de Cervantes, p. 38.

Less by genius or eminent service than by suffering are the fugitive

slaves of our country now commended. For them every sentiment of

humanity is aroused.

"Who could refrain,

That had a heart to love, and in that heart

Courage to make his love known?"

Rude and ignorant they may be; but in their very efforts for Freedom

they claim kindred with all that is noble in the Past. Romance has no

stories of more thrilling interest. Classical antiquity has preserved

no examples of adventure and trial more worthy of renown. They are

among the heroes of our age. Among them are those whose names will be

treasured in the annals of their race. By eloquent voice they have

done much to make their wrongs known, and to secure the respect of

the world. History will soon lend her avenging pen. Proscribed by you

during life, they will proscribe you through all time. Sir, already

judgment is beginning. A righteous public sentiment palsies your

enactment.

And now, Sir, let us review the field over which we have passed.

We have seen that any compromise, finally closing the discussion

of Slavery under the Constitution, is tyrannical, absurd, and

impotent; that, as Slavery can exist only by virtue of positive

law, and as it has no such positive support in the Constitution, it

cannot exist within the national jurisdiction; that the Constitution

nowhere recognizes property in man, and that, according to its true

interpretation, Freedom and not Slavery is national, while Slavery and

not Freedom is sectional; that in this spirit the National Government

was first organized under Washington, himself an Abolitionist,

surrounded by Abolitionists, while the whole country, by its Church,

its Colleges, its Literature, and all its best voices, was united

against Slavery, and the national flag at that time nowhere within the

National Territory covered a single slave; still further, that the

National Government is a Government of delegated powers, and, as among

these there is no power to support Slavery, this institution cannot be

national, nor can Congress in any way legislate in its behalf; and,

finally, that the establishment of this principle is the true way of

peace and safety for the Republic. Considering next the provision

for the surrender of fugitives from service, we have seen that it

was not one of the original compromises of the Constitution; that it

was introduced tardily and with hesitation, and adopted with little

discussion, while then and for a long period thereafter it was regarded

with comparative indifference; that the recent Slave Act, though many

times unconstitutional, is especially so on two grounds,--_first_, as

a usurpation by Congress of powers not granted by the Constitution,

and an infraction of rights secured to the States, and, _secondly_,

as the denial of Trial by Jury, in a question of Personal Liberty and

a suit at Common Law; that its glaring unconstitutionally finds a

prototype in the British Stamp Act, which our fathers refused to obey

as unconstitutional on two parallel grounds,--_first_, because it was

a usurpation by Parliament of powers not belonging to it under the

British Constitution, and an infraction of rights belonging to the

Colonies, and, _secondly_, because it was the denial of Trial by Jury

in certain cases of property; that, as Liberty is far above property,

so is the outrage perpetrated by the American Congress far above that

perpetrated by the British Parliament; and, finally, that the Slave Act

has not that support, in the public sentiment of the States where it is

to be executed, which is the life of all law, and which prudence and

the precept of Washington require.

* * * * *

Sir, thus far I have arrayed the objections to this Act, and the false

interpretations out of which it has sprung. But I am asked what I offer

as a substitute for the legislation which I denounce. Freely I answer.

It is to be found in a correct appreciation of the provision of the

Constitution under which this discussion occurs. Look at it in the

double light of Reason and of Freedom, and we cannot mistake the exact

extent of its requirements. Here is the provision:--

"No person held to service or labor in one State, under the laws

thereof, escaping into another, shall, in consequence of any law or

regulation therein, be discharged from such service or labor, but

shall be delivered up on claim of the party to whom such service or

labor may be due."

From the very language employed, it is obvious that this is merely a

_compact_ between the States, with a _prohibition_ on the States,

_conferring no power on the Nation_. In its natural signification it

is a compact. According to examples of other countries, and principles

of jurisprudence, it is a compact. Arrangements for extradition

of fugitives have been customarily compacts. Except under express

obligations of treaty, no nation is bound to surrender fugitives.

Especially has this been the case with fugitives for Freedom. In

mediæval Europe cities refused to recognize this obligation in favor

of persons even under the same National Government. In 1531, while the

Netherlands and Spain were united under Charles the Fifth, the Supreme

Council of Mechlin rejected an application from Spain for the surrender

of a fugitive slave. By express compact alone could this be secured.

But the provision of the Constitution was borrowed from the Ordinance

of the Northwestern Territory,[202] which is expressly declared to

be a compact; and this Ordinance, finally drawn by Nathan Dane, was

itself borrowed, in distinctive feature, from the early institutions

of Massachusetts, among which, as far back as 1643, was a compact of

like nature with other New England States.[203] Thus this provision

is a compact in language, in nature, in its whole history; as we

have already seen, it is a compact according to the intentions of our

fathers and the genius of our institutions.

[202] "ART. VI. There shall be neither slavery nor involuntary

servitude in the said Territory, otherwise than in the punishment

of crimes whereof the party shall have been duly convicted:

Provided always, that any person escaping into the same, from

whom labor or service is lawfully claimed in any one of the

original States, such fugitive may be lawfully reclaimed, and

conveyed to the person claiming his or her labor or service as

aforesaid."--_Ordinance for the Government of the Territory

Northwest of the River Ohio_, July 13, 1787: Journals of Congress,

Vol. XII. pp. 92, 93.

[203] "8.... It is also agreed, that if any servant run away from

his master into any of the confederate jurisdictions, that in such

case (upon certificate from one magistrate in the jurisdiction

out of which the said servant fled, or upon other due proof) the

said servant shall be either delivered to his master or any other

that pursues and brings such certificate and proof."--_Articles

of Confederation between the Plantations_, etc., May 29, 1643:

Hubbard's History of New England, p. 472.

As a compact, its execution depends absolutely upon the States, without

any intervention of the Nation. _Each State, in the exercise of its own

judgment, will determine for itself the precise extent of obligation

assumed._ As a compact in derogation of Freedom, it must be construed

strictly in every respect, leaning always in favor of Freedom, and

shunning any meaning, not clearly necessary, which takes away important

personal rights; mindful that the parties to whom it is applicable are

regarded as "persons," of course with all the rights of "persons,"

under the Constitution; especially mindful of the vigorous maxim

of the Common Law, early announced by Fortescue, that "he is to be

adjudged impious and cruel who does not favor Liberty"[204]; and also

completely adopting, in letter and spirit, as becomes a just people,

the rule of the great Commentator, that "the law is always ready to

catch at anything in favor of Liberty."[205] With this key the true

interpretation is natural and easy.

[204] De Laudibus Legum Angliæ, Cap. XLII.; Coke upon Littleton,

124_b_. Granville Sharp, in the remarkable testimony already cited

(_ante_, p. 108), quotes Fortescue thus: "For in behalf of Liberty

human nature always implores: because _Slavery is introduced by

man_, and _for vice_; but _Liberty_ is implanted _by God_ in the

very nature of _man_: wherefore, when stolen by man, it always

earnestly longs to return; as does everything which is deprived of

_natural liberty_. For which reason the _man_ who does _not favor

Liberty_ is to be adjudged _impious_ and _cruel_. The laws of

England acknowledging these principles give favor to _Liberty in

every case_." After this extract from Fortescue, we are reminded

that "Slavery is properly declared by one of our oldest English

authorities in law, Fleta, to be _contrary to Nature_ (Fleta, 2d

edit. p. 1), which expression of Fleta is really a maxim of the

Civil or Roman Law"; and then Sharp predicts the time when "our

deluded statesmen, lawyers, commercial politicians, and planters

shall be compelled to understand that a more forcible expression of

illegality and iniquity could not have been used than that by which

Slavery is defined in the Roman code, as well as by our English

Fleta, _i. e._ that it is _contra naturam_, against Nature; for,

consequently, it must be utterly illegal, a crime which by the

first foundation of English law is justly deemed both _impious_ and

_cruel_", and he adds, "The severity of these expressions cannot be

restrained without injustice to the high authorities on which this

argument is founded." (Letter to the Maryland Society for Promoting

the Abolition of Slavery, etc., pp. 6-8.) This testimony of the

great English Abolitionist is reinforced, especially with regard

to fugitive slaves, when we consider its publication in 1793 by

the Abolition Society of Maryland, with the prefatory observation,

that, "in the case of slaves escaping from their masters, the

friends of universal liberty are often embarrassed in their conduct

by a conflict between their principles and _the obligations imposed

by unwise and perhaps unconstitutional laws_."

[205] Blackstone, Commentaries, Vol. II. p. 94.

Briefly, the States are prohibited from any "law or regulation" by

which any "person" escaped from "service or labor" may be discharged

therefrom, and on establishment of the claim to such "service or labor"

he is to be "delivered up." But the mode by which the claim shall be

tried and determined is not specified. All this is obviously within

the control of each State. It may be by virtue of express legislation;

in which event, any Legislature, justly careful of Personal Liberty,

would surround the fugitive with every shield of Law and Constitution.

But here a fact pregnant with Freedom must be studiously observed. The

name _Slave_--that litany of wrong and woe--does not appear in the

clause. Here is no unambiguous phrase, incapable of a double sense,--no

"positive" language, applicable only to slaves, and excluding all

other classes,--no word of that absolute certainty in every particular

which forbids any interpretation except that of Slavery, and makes

it impossible "to catch at anything in favor of Liberty." Nothing of

this kind is here. But, passing from this,--"impiously and cruelly"

renouncing for the moment all leanings for Freedom,--refusing "to

catch at anything in favor of Liberty,"--abandoning the cherished

idea of the Fathers, that it was "_wrong_ to admit in the Constitution

the idea that there could be property in men,"--and, in the face of

these commanding principles, assuming two things,--first, that, in the

evasive language of this clause, the Convention, whatever may have been

the aim of individual members, really intended fugitive slaves, which

is sometimes questioned, and, secondly, that, if they so intended,

the language employed can be judicially regarded as justly applicable

to fugitive slaves, which is often and earnestly denied,--then the

whole proceeding, without any express legislation, may be left to

ancient and authentic forms of the Common Law, familiar to the framers

of the Constitution, and ample for the occasion. If the fugitive be

seized without process, he will be entitled at once to his writ _de

Homine Replegiando_, while the master, resorting to process, may find

his remedy in the writ _de Nativo Habendo_, each requiring trial by

jury. If, from ignorance or lack of employment, these processes have

slumbered in our country, still they belong to the great arsenal of the

Common Law, and continue, like other ancient writs, _tanquam gladius

in vagina_, ready to be employed at the first necessity. They belong

to the safeguards of the citizen. But in any event, and in either

alternative, the proceeding would be by "suit at Common Law," with

Trial by Jury; and it would be the solemn duty of the court, according

to all the forms and proper delays of the Common Law, to try the case

on the evidence, strictly to apply all protecting rules of evidence,

and especially to require stringent proof, by competent witnesses under

cross-examination, that the person claimed was _held_ to service, that

his service was _due_ to the claimant, that he had _escaped_ from the

State where such service was due, and also proof of the _laws_ of the

State under which he was held. _Still further, to the Courts of each

State must belong the determination of the question, to what class of

persons, according to just rules of interpretation, the phrase "person

held to service or labor" is strictly applicable._

Such is this much debated provision. The Slave States, at the formation

of the Constitution, did not propose, as in cases of Naturalization

and Bankruptcy, to empower the National Government _to establish an

uniform rule_ for the rendition of fugitives from service, _throughout

the United States_; they did not ask the National Government to charge

itself in any way with this service; they did not venture to offend the

country, and particularly the Northern States, by any such assertion of

hateful pretension. They were content, under the sanctions of compact,

in leaving it to the public sentiment of the States. There, I insist,

it must remain.

* * * * *

Mr. President, I have occupied much time; but the great subject still

stretches before us. One other point yet remains, which I must not

leave untouched, and which justly belongs to the close. The Slave Act

violates the Constitution, and shocks the Public Conscience. With

modesty, and yet with firmness, let me add, Sir, it offends against the

Divine Law. No such enactment is entitled to support. As the throne of

God is above every earthly throne, so are his laws and statutes above

all the laws and statutes of man. To question these is to question

God himself. But to assume that human laws are beyond question is to

claim for their fallible authors infallibility. To assume that they

are always in conformity with the laws of God is presumptuously and

impiously to exalt man even to equality with God. Clearly, human laws

are not always in such conformity; nor can they ever be beyond question

from each individual. Where the conflict is open, as if Congress should

command the perpetration of murder, the office of conscience as final

arbiter is undisputed. But in every conflict the same queenly office

is hers. By no earthly power can she be dethroned. Each person, after

anxious examination, without haste, without passion, solemnly for

himself must decide this great controversy. Any other rule attributes

infallibility to human laws, places them beyond question, and degrades

all men to an unthinking, passive obedience.

According to St. Augustine, an unjust law does not appear to be a

law: _Lex esse non videtur quæ justa non fuerit._[206] And the great

Fathers of the Church, while adopting these words, declare openly that

unjust laws are not binding. Sometimes they are called "iniquity," and

not law; sometimes "violences," and not laws.[207] And here again the

conscience of each person is final arbiter. But this lofty principle is

not confined to the Church. Earlier than the Church, a sublime Heathen

announced the same truth. After assailing indignantly that completest

folly which would find the rule of justice in human institutions and

laws, and then asking if the laws of tyrants are just simply because

laws, Cicero declares, that, if edicts of popular assemblies, decrees

of princes, and decisions of judges constitute right, then there may

be a right to rob, a right to commit adultery, a right to set up

forged wills; whereas he does not hesitate to say that pernicious and

pestilent statutes can be no more entitled to the name of law than

robber codes; and he concludes, in words as strong as those of St.

Augustine, that an unjust law is null.[208] A master of philosophy

in early Europe, of intellectual renown, the eloquent Abelard, in

Latin verses addressed to his son, clearly expresses the universal

injunction:--

"Jussa potestatis terrenæ discutienda:

Coelestis tibi mox perficienda scias.

Si quis divinis jubeat contraria jussis,

Te contra Dominum pactio nulla trahat."[209]

[206] De Libero Arbitrio, Lib. I. c. 5. See Thomas Aquinas,

Summa Theologica, 1ma 2dæ, Quæst. XCVI. art. 4; also, Balmez,

Protestantism and Catholicity compared in their Effects on the

Civilization of Europe, Ch. 53.

[207] _Magis iniquitas quam lex, magis violentiæ quam leges._

Thomas Aquinas, Summa Theol., 1ma 2dæ, Quæst. XC. art. 1, XCVI.

art. 4. The supreme duty to God is recognized in a text of St.

Basil, _Obediendum est in quibus mandatum Dei non impeditur_,

quoted by Filmer, Patriarcha, Ch. III. § 3.

The mandates of an earthly power are to be discussed; those of Heaven

must at once be performed; nor should we suffer ourselves to be drawn

by any compact into opposition to God. Such is the rule of morals.

Such, also, by the lips of judges and sages, is the proud declaration

of English law, whence our own is derived. In this conviction, patriots

have braved unjust commands, and martyrs have died.

[208] De Legibus, Lib. I. capp. 15, 16; Lib. II. capp. 5, 6. The

conclusion appears in the dialogue between Cicero and his brother

Quintus.

ARC. Ergo est lex justorum injustorumque distinctio, ad illam

antiquissimam et rerum omnium principem expressa naturam....

"QUINT. Præclare intelligo; nec vero jam aliam esse ullam legem

puto non modo habendam, sed ne appellandam quidem."

Among moderns, the Abbé de Mably, in an elaborate discussion,

adopts the conclusion of Cicero, as well as his treatment of it

by dialogue, making his interlocutor, Lord Stanhope, ask, "What

other remedy can be applied to this evil than disobedience?" and

representing him as "pulverizing without difficulty the miserable

commonplaces in opposition."--_Des Droits et des Devoirs du

Citoyen_, Lettre IV. OEuvres (Paris, 1797), Tom. XI. pp. 249, 251.

Cicero was not alone among ancients in submission to an overruling

law, nowhere pictured in greater sovereignty than by Sophocles, in

a famous verse of the _OEdipus Tyrannus_:--

Ϻέγας ἐν τούτοις Θεός, οὐδὲ γηράσκει.--v. 845 [871].

Great in these laws is God, and grows not old.

[209] Versus ad Astralabium Filium: Opera (ed. Cousin), Tom. I. pp.

341, 342.

And now, Sir, the rule is commended to us. The good citizen, who sees

before him the shivering fugitive, guilty of no crime, pursued, hunted

down like a beast, while praying for Christian help and deliverance,

and then reads the requirements of this Act, is filled with horror.

Here is a despotic mandate "to aid and assist in the prompt and

efficient execution of this law."[210] Again let me speak frankly. Not

rashly would I set myself against any requirement of law. This grave

responsibility I would not lightly assume. But here the path of duty is

clear. By the Supreme Law, which commands me to do no injustice, by the

comprehensive Christian Law of Brotherhood, _by the Constitution, which

I have sworn to support_, I AM BOUND TO DISOBEY THIS ACT.

Never, in any capacity, can I render voluntary aid in its execution.

Pains and penalties I will endure, but this great wrong I will not do.

"Where I cannot obey actively, there I am willing to lie down and to

suffer what they shall do unto me": such was the exclamation of him to

whom we are indebted for the "Pilgrim's Progress," while in prison for

disobedience to an earthly statute.[211] Better suffer injustice than

do it. Better victim than instrument of wrong. Better even the poor

slave returned to bondage than the wretched Commissioner.

[210] Fugitive Slave Act, September 18, 1850, Sec. 5.

[211] Relation of the Imprisonment of Mr. John Bunyan, written by

Himself: Works (Glasgow, 1853), Vol. I. pp. 59, 60. Balmez, the

Spanish divine, whose vindication of the early Catholic Church is

a remarkable monument, declares, after careful discussion, "that

the rights of the civil power are limited, that there are things

beyond its province,--cases in which a man may say, and ought to

say, _I will not obey_." (Protestantism and Catholicity Compared,

Ch. 54.) Devices to avoid the enforcement of unjust laws illustrate

this righteous disobedience,--as where English juries, before the

laws had been made humane, found an article stolen to be less

than five shillings in value, in order to save the criminal from

capital punishment. In the Diary of John Adams, December 14, 1779,

at Ferrol, in Spain, there is a curious instance of law requiring

that a convicted parricide should be headed up in a hogshead with

an adder, a toad, a dog, and a cat, and then cast into the sea;

but in a case that had recently occurred the barbarous law was

evaded by painting these animals on a hogshead containing the

dead body of the criminal. (Works, Vol. III. p. 233.) In similar

spirit, the famous President Jeannin, high in the magistracy and

diplomacy of France, when called to a consultation on a mandate

of Charles the Ninth, at the epoch of St. Bartholomew, said, "We

must obey the sovereign slowly, when he commands in anger"; and

he concluded by asking "letters patent before executing orders so

cruel." (Biographie Universelle, art. _Jeannin Pierre_.) The remark

of Casimir Périer, when Prime-Minister, to Queen Hortense, that

it might be "legal" for him to arrest her, but not "just," makes

the same distinction. (Guizot, Mémoires pour servir à l'Histoire

de mon Temps, Tom. II. p. 219. See _ante_. Vol. II. pp. 398, 399.)

The case is stated with perfect moderation by Grotius, when he says

that human laws have _a binding force_ only when they are made

in a humane manner, not if they impose a burden which is plainly

abhorrent to reason and Nature,--_non si onus injungant quod a

ratione et natura plane abhorreat_. (De Jure Belli ac Pacis, Lib.

III. Cap. XXIII. v. 3; also Lib. I. Cap. IV. vii. 2, 3.) These

latter words aptly describe the "burden" imposed by the Slave Act.

There is, Sir, an incident of history which suggests a parallel,

and affords a lesson of fidelity. Under the triumphant exertions

of that Apostolic Jesuit, St. Francis Xavier, large numbers of

Japanese, amounting to as many as two hundred thousand,--among them

princes, generals, and the flower of the nobility,--were converted to

Christianity. Afterwards, amidst the frenzy of civil war, religious

persecution arose, and the penalty of death was denounced against

all who refused to trample upon the effigy of the Redeemer. This was

the Pagan law of a Pagan land. But the delighted historian records,

that from the multitude of converts scarcely one was guilty of this

apostasy. The law of man was set at nought. Imprisonment, torture,

death, were preferred. Thus did this people refuse to trample on the

painted image. Sir, multitudes among us will not be less steadfast in

refusing to trample on the living image of their Redeemer.

Finally, Sir, for the sake of peace and tranquillity, cease to shock

the Public Conscience; for the sake of the Constitution, cease to

exercise a power nowhere granted, and which violates inviolable rights

expressly secured. Leave this question where it was left by our

fathers, at the formation of our National Government,--in the absolute

control of the States, the appointed guardians of Personal Liberty.

Repeal this enactment. Let its terrors no longer rage through the

land. Mindful of the lowly whom it pursues, mindful of the good men

perplexed by its requirements, in the name of Charity, in the name of

the Constitution, repeal this enactment, totally and without delay.

There is the example of Washington; follow it. There also are words of

Oriental piety, most touching and full of warning, which speak to all

mankind, and now especially to us: "Beware of the groans of wounded

souls, since the inward sore will at length break out. Oppress not to

the utmost a single heart; for a solitary sigh has power to overturn a

whole world."

* * * * * *

Transcriber's note:

The punctuation and spelling are as in the original publication with

the exception of the following:

Professor Stearns, who resided in Cambridge, was occucupied . . .

was changed to

Professor Stearns, who resided in Cambridge, was occupied . . .

. . . leaning for support on the great Truimvirate

was changed to

. . . leaning for support on the great Triumvirate