court plainly say, that, if the subject matter of the litigation, or
the object of the proceeding, be to determine a “legal right” which was
formerly determined by a “suit at common law,” then such proceeding is
embraced in the seventh amendment, and either party in interest has a
right to the trial by jury. Now, is it not clear that any proceeding
which determines whether a man owns himself, or is owned by another
man, and which delivers one man into the custody of another, as his
slave, or refuses so to deliver him, is, “whatever peculiar form it
may assume,” a proceeding “to settle a legal right,”--the highest
legal right? It is not a right in equity, in admiralty, or under the
maritime law; but strictly and exclusively a _legal right_, and nothing
else. According to the doctrine of the supreme court, then, in the
above-cited case, the parties to such a proceeding have a right, under
the seventh amendment, to a trial by jury. At least, is not such the
“_spirit_” of the amendment?
But there is another well-known fact, which gives pertinence and
stringency to the above view. At common law, the writ _de homine
replegiando_,--the writ of personal replevin, or for replevying a
man,--was an original writ; a writ which the party could sue out of
right; one to be granted on motion, without showing cause, and which
the court of chancery could not supersede. It was, according to the
very language of our supreme court, recognized by the common law “among
its old and settled proceedings.” The form of it is found in that great
arsenal of common law writs, the _Registrum Brevium_. A man, says
Comyn, may have a _homine replegiando_ for a negro; or for an Indian
brought by him into England and detained from him; or it may be brought
by an infant against his testamentary guardian; _or by a villein
against his lord_. (Dig., Title Imprisonment, L. 4.)
If it could be brought by a villein against his lord, then it was the
very writ for an alleged slave against an alleging owner. It was the
mode provided by the common law for the determination of the _legal
right_ asserted in a human being. I have always understood that, before
the revolution, and before the framing of our constitution, Comyn’s
Digest was a work of the highest authority. It must have been well
known to all the lawyers in the convention. Did they expect, then,
that when an alleged slave, or a known freeman, should be seized, that
he should be hurried into bondage without any right to this ancient
muniment of the subject’s liberties?
But “the reclaiming of a fugitive slave,” says Mr. Webster, “is not a
suit at the common law.” The proceedings provided for by the statute
of 1793, to which he “sees no objection,” have no analogy to the writ
_de homine replegiando_. But can you destroy the right to a jury trial
by changing the process? A sand-hiller from Georgia or North Carolina
cannot come to Massachusetts and eject Mr. Webster from his Marshfield
farm without being compelled to submit the question of title to a
jury. But suppose Congress should say, in effect, that any one of the
seventeen thousand postmasters in the United States might be brought
into Massachusetts, (and, among so numerous a body, it is no libel
to say there are some reckless men,) and that the said sand-hiller
might go before the said imported postmaster, and after proof “to
his satisfaction,” “either by oral testimony or by affidavit,”--an
affidavit, be it remembered, taken any where in the United
States,--then the claimant shall be put into immediate possession of
the said farm, with a right to recover costs; and suppose Mr. Webster
should spurn the authority of this illegitimate court, and demand an
observance of the ancient forms of law, and a trial by jury under the
seventh amendment; then the claimant has only to borrow Mr. Webster’s
own words, and say, “This is not a suit at the common law:”--suppose
all this, I say, and I would then ask if such a proceeding would be
satisfactory to the last-named gentleman? The common sense of mankind
is authority good enough to answer such a question; but we have high
legal authority in addition.
In _Baker_ VS. _Riddle_, Mr. Justice Baldwin, one of the judges of the
supreme court of the United States, held that it was not in the power
of Congress to take away the right of trial by jury, secured by the
seventh amendment, either,--“1. By an organization of the courts in
such a manner as not to secure it to suitors;” or,--“2. By authorizing
the courts to exercise, or their assumption of, equity or admiralty
jurisdiction over cases at law.” “This amendment,” says he, “preserves
the right of jury trial against any infringement by any department of
the government.”--_Baldwin’s Rep._ 404.
Now, what was Mr. Butler’s bill but “a new organization of the courts,”
or, rather, a new creation of some twenty thousand courts, “in such a
manner as not to secure [the right of trial by jury] to suitors?” It
was, indeed, a violation of both of the principles laid down by Judge
Baldwin. It was the creation of tribunals unknown to the common law,
and authorizing those tribunals to decide upon rights not belonging to
either “equity or admiralty jurisdiction.”
In this connection, I will refer to the case of _Lee_ VS. _Lee_, 8
_Peters’s Rep._ 44.
By act of Congress of April 2, 1816, it was declared that no cause
should be removed from the circuit court of the District of Columbia
to the supreme court by appeal or writ of error, “unless the matter
in dispute shall be of the value of one thousand dollars or upwards.”
The plaintiffs in error were claimed as slaves. Their petition for
freedom in the court below had been decided against them; and from this
decision they appealed. The defendant in error took the objection that
they,--their bodies and souls,--were not worth one thousand dollars,
and therefore that they had no right to appeal. But the court said,--
“The matter in dispute, in this case, is the freedom of the
petitioners. The judgment of the court below is against their claims
to freedom; the matter in dispute is, therefore, to the plaintiffs
in error, the value of their freedom, _and this is not susceptible
of a pecuniary valuation_. Had the judgment been in favor of the
petitioners, and the writ of error brought by the party claiming to be
the owner, the value of the slaves as _property_ would have been the
matter in dispute, and affidavits might be admitted to ascertain such
value. But affidavits estimating the value of freedom are entirely
inadmissible; and no doubt is entertained of the jurisdiction of the
court.”
Now, if the supreme court of the United States, in construing a law,
felt constrained by their oaths to hold the freedom of a man,--of any
man, though he might be a drivelling idiot, or stretched upon his
death bed, with only another hour to breathe,--to be worth more than a
thousand dollars, how can a senator of the United States say, that in
passing a law, under which human liberty may be retained or lost, he is
not bound at least by the “_spirit_” of the constitution, if not by its
letter, to hold that human liberty to be of greater value than twenty
dollars, and therefore to provide the trial by jury for its protection?
What can prove more strikingly that Mr. Webster violates the whole
“spirit” of the constitution, when the framers and ratifiers of this
amendment covenanted for and decreed the trial by jury, for such a
paltry sum of money; and when the judges of the supreme court held
human liberty to be worth more than any nameable sum of money, while
he regards it as a thing to be disposed of by any corrupt postmaster,
which any corrupt administration may corruptly appoint. Yet he says,
“Nothing can be more false than that a jury trial is demanded in cases
of this kind by the constitution, either in its letter, _or in its
spirit_.”
I wish I could find, or felt at liberty to coin some milder word;
but for want of a better, I must say that Mr. Webster seems to
me, throughout this whole matter, to _dogmatize_. He makes strong
assertions without offering even weak reasons. Of this character was
his annunciation of the discovery of a new law,--“the law of physical
geography,”--which was to suspend moral agency, and take from man his
power to commit crime against his brother; as though in ascending
hill-sides, freedom and slavery lie in different atmospherical strata,
and are bounded by each other impassably; as though there were any
mountain so “exceeding high,” to whose top even Jesus Christ could go,
that Satan could not go there to tempt him. This does not strike the
common mind like a true discovery;--like the law of gravitation, for
instance, discovered by Newton, or the existence of the planet Neptune,
by Leverrier. It is rather like that earliest pretended discovery on
record, which was designed to seduce, and did seduce, the first parents
of us all. _Ye may eat of the forbidden tree, for ye shall_ NOT _surely
die_. So Mr. Webster says, Let slaves be driven in coffles, or carried
in ships’ holds to the new territories; they cannot live there. Will
not the results of the two experiments bear a lively analogy to each
other, and be likely to reflect similar credit upon their authors?
So, too, when he tore some of the brightest pages from the New
Testament, by proclaiming that “there is to be found no injunction
against that relation [of slavery] between man and man, in the
teachings of the gospel of Jesus Christ, or of any of his apostles”!
Upon how many Christian hearts did this sentiment fall like an anathema
against all truth. He does not say any _express_ injunction, but “no
injunction;”--none of any kind. No _positive_ injunction against
slavery in the New Testament!--a book designed to regulate our life
and condition for two worlds; yet, altogether, not so large as many a
congressional report; less voluminous than the ordinances of many of
our city governments;--a book, therefore, which, from the necessity
of the case, must deal with great and immortal principles, and could
not descend into specification and detail;--and because such a book
as this contains no _express_ injunction against slavery, therefore
slavery is not forbidden by it, but has the implied approval of its
silence! Surely, never was there a more sinister, unsound, unchristian
argument uttered by infidel or pagan. Is there any _express_ injunction
“in the teachings of the gospel of Jesus Christ, or of any of his
apostles,” commanding us to declare the African slave trade piracy?
Is there any _express_ injunction “in the teachings of the gospel of
Jesus Christ, or of any of his apostles,” against cannibalism? Do they
any where say, “Ye shall not eat one another?” Yet what enormity and
flagitiousness would it be to infer, that, therefore, men and women
may turn ogres and ogresses, and eat human flesh as they do mutton and
sirloin. The inference in the latter case is every whit as warrantable
and as sound, as in the former. Yet I consider that this theological
argument does not violate the “spirit” of the gospel, any more than
his constitutional argument violates the “spirit” of the constitution.
John Wesley, who had lived amid slavery, denominates it the “sum of all
villanies,” and if Christ came into this world and left it, without
permeating and saturating all his teachings with injunctions against
the injustice, cruelty, pride, avarice, lust, love of domination, and
love of adulation, which are the inseparable accompaniments of slavery,
then I think the Christian world will cry out, that so far as this life
is concerned, his mission was substantially fruitless.
“O, star-eyed Science! hast thou wandered there,
To bring us back these tidings of despair?”
So, if the constitution of the United States contains not even any
_implied_ security for the liberty of all the colored population in
the free states and territories, and for the trial by jury as the only
adequate means of securing that liberty, then would it not be more
creditable to its framers never to have put their signatures to it?
Let me here compare the relative value of life or property on the one
side, with liberty on the other, and see what inference must be drawn
in favor of affording as great a protection to the latter as to the
former.
The fifth article of amendment declares that “no person shall be
deprived of life, liberty, or property, without due process of law.”
The commentators say that these words, “due process of law,” are the
equivalent of the phrase “the law of the land,” in the 29th chapter of
Magna Charta; and hence that “this clause in effect affirms the right
of trial according to the process and proceedings of the common law;”
that is, by jury. (See Story’s Comm. 661; 2 Inst. 50, 51; 2 Kent’s
Comm. 10; 1 Tucker’s Black. App. 304.)
Now, consider that the general right of trial by jury, in cases of
_life_, was expressly secured by the constitution as originally
adopted; that, somewhat more than three years afterwards, the same
right was expressly secured for _property_, in suits at common law,
whenever the value in controversy should exceed twenty dollars; and
then say whether there is not the strongest implication in favor of
the same right, in cases of human liberty, which is so much more
precious than life and property combined. I do not here say it is an
implication that binds the courts in administering a law. That is
not the point under discussion. But is it not an implication that
binds the _legislator_, so that when legislating on the subject, he
cannot consciously and wilfully abandon it without infidelity to his
oath? I do not believe that many men from the free states will ever
be found in Congress who will not take this view of the subject.
Indeed, not a few of the best lawyers and jurists have held that the
implication binds the courts; and therefore that the statute of 1793 is
unconstitutional.[11]
Mr. Webster treats the two cases, of fugitives from justice and
fugitives from service, alike; although one can almost adopt his own
language, and say that “nothing is more false” than that they are
alike. In regard to the first class, the constitution says, a person
“_charged_” with treason, &c.; but in regard to the second class, it
says no person “_held_,” &c.
According to the obvious intent of this language, the alleged fugitive
must be _proved_ to be _held_, _bound_, _obligated_. It is not enough
that he be _charged_ to be “held” to service, though it is enough that
a man be “_charged_” with crime. To bring the first case within the
legal category of the second, its terms should be, “a person _guilty_
of treason,” &c., shall be delivered up. Were such the phraseology,
would any one doubt that proof of guilt should precede delivery, and
that there could be no other foundation for it?
Mr. Webster says, “perhaps the only insuperable difficulty” to a trial
by a jury, “has been created by the states themselves.” Suppose this
to be so, I would ask whose duty is it to act first,--that of Congress
to provide the trial, or that of the states to remove the impediment?
Shall the states repeal their laws first, and leave the liberty of
the citizens in jeopardy; or shall not Congress legislate first, and
secure that liberty? Which is of the greater importance, that the
owner should recover his slave, or that the citizen should retain his
freedom? I answer according to the language which the criminal law uses
respecting guilt and innocence, that it is better that nine hundred and
ninety-nine, that is, an indefinite number of slaves should escape,
than that one free man should be delivered into bondage.
Besides, I think no state legislated on the subject for the protection
of its own citizens, until 1842. This was after Congress had neglected,
for more than fifty years, to do its duty. Why, then, should Mr.
Webster cast the blame upon the states which forbore for more than
fifty years to act protectively for themselves, when Congress, of which
he had been a leading member for nearly forty years, had endangered,
instead of securing, the liberty of their citizens? When he said that
“every member of every northern legislature is bound by oath to support
the constitution of the United States,” why did not the retort suddenly
rise to his mind that _he_ was bound by oath not less than they; and
that his oath embraced the men that owned freedom, not less than the
men that owned slaves? Besides, he charges only a _part_ of the free
states with being guilty of unjust legislation. Shall the innocent
states suffer because of the others’ offence? Rather shall not Congress
first supply the means of protection to the citizens of all?
It seems to me, too, that the fourth amendment has an important
“_bearing upon the subject_,” because it shows that the master-thought
of our fathers, in forming the constitution, was to secure the
liberties of the citizen. It provides against “unreasonable seizures”
of “persons.” I suppose the main idea of this amendment was to secure
the citizen against “unreasonable seizure,” even in cases where he
should afterwards, and at _some time_, be brought to trial according
to the forms of the common law. But what “seizure” can be more
“unreasonable,” than one whose object is, not an ultimate trial, but
bondage forever, without trial? Can mortal imagination conceive of
any seizure less entitled than this to be called “reasonable?” With
what indignation did our fathers frown because they were transported
beyond seas _to be tried_; yet, by our present law, and by the law
which Mr. Webster promises to support, a free man may be transported,
if not beyond seas, at least beyond lands, and beyond states, _not
to be tried_, but to be held in slavery forever without trial. If a
free citizen of Massachusetts should be seized and plunged into a
Massachusetts prison, to be kept there for life; and his children,
as a consequence of his fate, were put into the same, or into other
prisons, as fast as they were born, to be also kept for life; and such
was the original object and avowed purpose of the seizure, would not
this conflict a little with the “_spirit_” of the fourth amendment?
And does this proceeding conflict with this “_spirit_” any the less,
because the prison is a southern rice swamp, or cotton field, where the
nearest door or outlet of escape is more than a hundred miles from the
spot of confinement? In common law actions, trover, detinue, replevin,
&c., &c., the trial is to be in the vicinage, except there is some
overpowering reason for changing the venue, or place of trial. But here
is a transfer of the party, not for a trial, but for evading a trial.
I submit, then, to the public, that here are three provisions of the
constitution, each one of which does have “_a bearing on the subject_.”
Each strengthens the other. They form a triple implication, if not a
_trinoda necessitas_, which no man, however powerful he may be, can
break.
The argument which the lawyers call _ab inconvenienti_,--the argument
from inconvenience,--has been pressed into the service of the
slaveholder to endanger the liberties of the citizen. I answer, there
are two sides to this argument; nor was it wise in the slaveholder,
or his northern friends, to suggest it. It seems to me quite as
_inconvenient_ for a free man to lose his liberty, as for a slaveholder
to lose his slave. If a southern man sues a northern one for the value
of a bale of cotton or a barrel of rice, must not the plaintiff await
the next term of the court before he can enter his action, abide by
the rules of the court respecting continuances, and submit to the
order of business in taking his turn before a jury? To obviate this
inconvenience, has any legislature or any court ever proposed to set
aside or annul, at once, all the securities by which we hold property
and life? And how stands the question respecting evidence or proof?
If difficult for a slave claimant, from Texas, to prove title to his
slave in Massachusetts, how infinitely more difficult for a citizen of
Massachusetts to prove title to himself in Texas. But Mr. Webster says
there are independent courts at the south, “always open and ready to
receive and decide upon petitions or applications for freedom.” Suppose
this to be true; how is a man or a woman, whose master knows that he or
she is free, to get to the courts? Mr. Webster seems to think that as
soon as a kidnapping slave dealer shall transport his human prey to the
south, he will at once take him to, or allow him to go before a court
of justice, or will sell him to some brother Samaritan who will do so.
Does not every body know that any man, who is capable of the enormous
guilt of seizing or buying a freeman, will make it impossible for that
freeman to regain his birthright?
Mr. Webster says, persuasively, that the alleged slave “is only
remitted, for inquiry into his rights, to the state from which he
fled.” But suppose he had never “fled,” but was demeaning himself as
a peaceable citizen, under the solemnly pledged protection of the
government, on the soil where he was born! This is the false idea that
underlies the whole of Mr. Webster’s seductive letter, that under such
a bill as Mr. Butler’s, nobody but a slave would ever be arrested.
I have no doubt that what Mr. Webster says about southern courts being
“fair and upright,” is very generally and extensively true; but I have
had a little personal knowledge of southern courts, and I have no
hesitation in saying that there has been one, at least, before which,
if a slave were suing for his freedom, and any popular clamor against
him should exist, he would have no more hope of obtaining his liberty
through the “fairness” of the court, than, if thrown overboard in the
middle of the Atlantic ocean, he would have of saving his life by
swimming ashore.
Mr. Webster holds Massachusetts up to the ridicule of the world,
because, as he says, she “grows fervid on Pennsylvania wrongs;” and he
has deemed it his duty to inquire how many seizures of fugitive slaves
have occurred in New England within our time. Is this the Christian
standard by which to estimate the evil of encroachments upon the most
sacred rights of men? If I repose in contentment and indifference,
because my own section, or state, or county, is as yet but a partial
sufferer, why should I not continue contented and indifferent while
I myself am safe? In providing for the liberties of the citizen,
under a common government, I think Massachusetts worthy of all honor
and not of ridicule, because she does “grow fervid on Pennsylvania
wrongs,” and on the wrongs of an entire race, whether in Pennsylvania
or California, or any where within the boundaries of our own country.
I see no reason why my sympathies as a man, or the obligations of my
oath as an officer, in regard to the nearer or the remoter states,
should be inversely as the squares of the distances. Even with regard
to foreign countries, did Mr. Webster think so, in those better days,
when his eloquent appeal for oppressed and bleeding Greece roused the
nation, like the voice of a clarion. Did Mr. Webster deem it necessary
to make inquisitions through all the New England States, to learn how
many Hungarian patriots they had seen shot at the tap of drum, or how
many noble Hungarian women had been stripped and whipped in their
market places, before he thrilled the heart of the nation at the
wrongs of Kossuth and his compatriots, and invoked the execrations of
the world upon the Austrian and Russian despots? I see no difference
between these cases, which is not in favor of our _home interests_,
of our own _domestic rights_, except the difference of their bearings
upon partisan politics and presidential rivalries. Mr. Webster quotes
and commends Mr. Bissell, who said that those southern states which
had suffered the least from loss of slaves, made the greatest clamor.
That statement of a fact was well put by Mr. Bissell; but was it well
applied by Mr. Webster? In the statement, it was a question as to
the loss of property. In the application, it is a question as to the
loss of liberty. The latter is not, therefore, the “counterpart” of
the former. Blindness to the distinction between the value and the
_principle_ of property, and the value and the _principle_ of liberty,
could alone have permitted the comparison.
But I have extended this communication greatly beyond my original
purpose. Several other topics contained in Mr. Webster’s speech, or
growing out of what has since happened in relation to it, and hardly
less important than those already considered, must await another
opportunity for discussion; unless, indeed, some disposal of the
question shall render further discussion unnecessary.