The President’s message tells us that the compromise measures of the

last session are “FINAL.” I take the liberty to say of that declaration

in the message, with all due respect to the high source from which it

comes, that I adopt the sentiment, that those measures are _final_,

in one sense only. Their substance and object were, in an extreme

degree, pro-slavery and anti-liberty. They marked the passage of

this government through another long stage in the gloomy highway of

oppression. They furnished another argument for those who despair of

human nature; and they supply the misanthrope with a plausible reason

for hating mankind. They affixed another stain upon the country, and

set in deeper shade the contrast between the theory of our government

and its practice. They belied still another time the gospel of love and

human brotherhood. Once again they defied the vengeance of God, who is

no respecter of persons, and who will bring the sinner to judgment.

If such measures are to be “_final_,” in this sense only do I accept

the proposition,--that they are to be the last of their kind; that

here, at this point, the career of this iniquity is to be stayed; that

here, the confederated powers of ambition and of wealth,--of those

who aspire to office and those who lust for gold, have won their last

victory. In this sense only do I accept the President’s declaration,

that the action of the last Congress on this subject is to be deemed

_final_;--that, in all future conflicts, the right shall not be

trampled under foot, but the victims of oppression shall triumph. Base

as human nature often proves itself to be, it sometimes manifests a

divine resilience by which it springs with recuperative energy from its

guilty fall.

I draw no augury of despair from the calamity that has befallen us. It

teaches whatever there is of virtue and of principle in mankind, the

task which has been set them to do, and whose accomplishment God will

require at their hands.

It has been said by the Secretary of State, in a late speech, that if

this subject be reöpened in Congress, the friends of freedom will be

found in a “lean and miserable minority.” What cares my conscience,

sir, whether I am in a minority or a majority, _if I am right_? Has any

great and glorious cause ever been started upon earth, that did not

find itself, at the outset, in a minority? Did Clarkson and Wilberforce

open their twenty years’ contest with a majority? or were not all

the office-seekers and mammon-worshippers opposed to them? Did the

resistance of the revolutionary patriots to the government of Great

Britain start with a majority on its side? Did the Pilgrim fathers

resist conformity to ecclesiastical oppression because they were a

majority of the people? Did the glorious band of reformers count on

majorities, when they defied the racks and the flames of Rome? What

would now be our condition if the prophets and heroes of olden days,

if the warriors for truth and the martyrs of liberty, all over the

earth, had yielded to so base an argument as this, and had followed

the multitude to do evil, instead of battling for the truth, though

it were solitary and alone? I can conceive of but one effect which

such a sentiment must produce upon all noble and truth-loving men. It

is to make them labor for the right with a zeal commensurate with the

infinite baseness of the appeal by which they are urged to abandon it.

But I come now, Mr. Chairman, to the main topic of my remarks, which is

a consideration of the character of the Fugitive Slave law, passed on

the 18th day of September last.

The objections most generally urged against this law are of two kinds:

1st. That it is unconstitutional; and

2d. That, even if the framers of the constitution did leave an

unguarded opening, through which such a law could be introduced without

a breach in the structure of that instrument, still, that it is a

cruel law, that it discards all those principles of evidence and forms

of proceeding which have been devised by the wisdom of ages for the

protection of innocence against power, and that in its whole scope and

spirit it is in conflict with our fundamental ideas of human liberty.

It will be seen by this statement, that I here accept the constitution

according to its commonly-received interpretation. There is a class

of defenders of this law whom I wish to meet on their own ground. I

do not, therefore, object here to the constitution as they understand

it, but to the law. However much a man may reverence the constitution,

though he may make it an idol and worship it, yet I mean to show him

that this law is an unholy thing in its presence. I object, then,

to the law as a departure from the constitution,--not a departure

_towards_ despotism merely, but _into_ despotism. Admitting, what many

deny, that when the constitution speaks of “persons held to service

or labor,” it means slaves, and admitting that it provides for their

reclamation when it says they “shall be delivered up on claim,” I still

impeach the Fugitive Slave law for high crimes and misdemeanors against

the spirit and the letter of that instrument.

On the question of the constitutionality of this law, the legal minds

of the country are divided. It may not be easy to distribute opinions

correctly, on this point, into their proper classes, and to decide

upon their relative preponderance. If we include slave owners and

those whose pecuniary interests connect them directly with slavery,

and especially if to those we add a strong party who, from political

associations and hopes, have surrendered themselves to a pro-slavery

policy, probably the number, if not the weight, of opinion, is in favor

of the constitutionality of the law. But if we gather the opinions of

disinterested and unbiased men; of those who have no money to make or

office to hope for through the triumph of the law, then I think the

preponderance of opinion is decidedly the other way. I know it has

been said by one prominent individual, that he has heard of no man,

whose opinion was worth regarding, who denied the constitutionality

of the law. Now, as it is a fact universally known, that gentlemen

who have occupied and adorned the highest judicial stations in their

respective states, together with many of the ablest lawyers in the

whole country, have expressed opinions against the constitutionality

of this law, I have but one single word of reply to a declaration so

arrogant and insolent as this. That reply is, that on a great moral and

political, as well as legal question,--a question that connects itself

with ethics, as well as with partisan politics, and the success of old

parties or the formation of new ones,--_integrity_ is as necessary to

the formation of a sound opinion as _intelligence_.

I think, however, that one further remark should in candor be made,

in regard to the difference of opinions held by honest men on this

subject. The constitutionality or unconstitutionality of the Fugitive

Slave law is not a question to be determined solely by any single

and simple provision of the fundamental law. Numerous clauses in

the constitution have a bearing upon it. It connects itself with

contemporaneous history. It presents a case where commentators and

expounders must appeal to precedents and analogies, and to general

principles respecting the nature of government and the object of all

law. It is therefore a question of construction and interpretation.

And, what is a more important consideration still, it belongs

emphatically to that class of cases where men, who have been trained

under one class of institutions, and whose minds have been moulded

and shaped by the universal prevalence of one set of opinions and one

course of practice, may honestly come to one conclusion, while those

who have grown up under adverse opinions and an adverse practice,--or

rather, into whose minds adverse opinions and adverse practices have

grown, until they have become a part of the very substance of those

minds,--may honestly come to an opposite conclusion. We know, too, that

in addition to the powerful influences of education and training, the

general cast and structure of men’s minds predispose them to take one

side or the other of great political and religious questions. Natural

biases operate like a law of gravitation to sway different minds in

different directions. When, therefore, a southern gentleman, into

whose perceptions and reasonings and moral sentiments, the facts and

the creed of slavery have been incorporating themselves ever since

he was born, tells me that he believes even such a law as this to be

constitutional, I can still concede the fulness of his integrity,

however strongly I may dissent from the soundness of his opinion. It

is a law that might be held constitutional by a bench of slaveholders,

while it would be held unconstitutional by all the inhabitants of

a free land. It is a law that might be held valid by the courts of

Austria, while it would be held invalid by those of England. It is a

law which the judges of Westminster Hall might have held valid in the

time of the Stuarts, which they might and probably would have held

invalid in the eighteenth century; and, in the nineteenth century,

would certainly have reprobated and annulled.

My own opinion is, in view of the great principles of civil liberty

out of which the constitution grew, and which it was designed to

secure, that this law cannot be fairly and legitimately supported on

constitutional grounds. I express this opinion because, after having

formed it with careful deliberation, I am now bound to speak from it,

and to act from it. I have read every argument, and every article in

defence of the law, that I could find, from whatever source emanating.

Nay, I have been more anxious to read the arguments made in its favor

than the arguments against it; and I think I have seen a sound legal

answer to all the former. As for any arrogant or supercilious dictum,

either that the law is constitutional or that it is not constitutional,

unaccompanied by any reason or any reference, all reflecting men must

regard it as sheer insolence, come from what quarter it may.

Even should the supreme court of the United States declare the law to

be constitutional, then, though we must acknowledge their decision, as

to the point decided, to be the law of the land, until it is set aside,

yet, without any disrespect to that tribunal, we may still adhere to

our former opinion. We know how that court is constituted. A majority

of its members are from slaveholding states. Independent, too, of all

other considerations, they will feel a strong desire to maintain a

former opinion, which was also given when a majority of its judges

were from the south. We may, therefore, place our dissent on grounds

which, two years ago, when the “Clayton compromise,” so called, was

under discussion, were so well stated by a distinguished senator from

Ohio, [Mr. CORWIN,]--grounds perfectly respectful on our part, and not

derogatory to the court. He said,--

“It is a sad commentary upon the perfection of human reason, that,

with but few exceptions, gentlemen coming from a slave state ... all

eminent lawyers on this floor, from that section of the country,

have agreed that you have no right to prohibit the introduction of

slavery into Oregon, California, and New Mexico; while, on the other

hand, there is not a man, with few exceptions, (and some highly

respectable,) in the free states, learned and unlearned, clerical or

lay, who has any pretensions to legal knowledge, but believes in his

conscience that you have a right to prohibit slavery.... How is this?

Can I have confidence in the supreme court of the United States, when

my confidence fails in senators around me here? _Do I expect that

the members of that body will be more careful than the senators from

Georgia and South Carolina to form their opinions without any regard

to selfish considerations?_”

Besides, the supreme court have already, as I will show, decided

certain points in such a way that, if they maintain the Fugitive Slave

law, they will be obliged to overrule those points; and it is more

creditable to them to suppose they will overrule their decision in

Prigg’s case, than to suppose they will overrule other decisions in

other cases.

In the first place, I believe the constitution not only authorizes but

requires a trial by jury, in the case of alleged fugitive slaves, when

claimed in free states.

The constitution declares, “The right of the people to be secure

in their persons,” “against unreasonable” “seizures, shall not

be violated; and no warrant shall issue but upon probable cause,

_supported by oath or affirmation_, and particularly describing” “the

persons or things to be seized.”--_Amend._, Art. IV.

It also declares, that, “In suits at common law, where the value in

controversy shall exceed twenty dollars, the right of trial by jury

shall be preserved.”--_Amend._, Art. VII.

And it also says, “No person shall be deprived of life, liberty, or

property, without due process of law.” _Amend._, Art. V. And it is most

important to observe that these words, “due process of law,” are held

by all the authorities _to include the trial by jury_.--3 _Story’s

Com._ 661; 2 _Inst._ 50, 51; 2 _Kent’s Com._ 10; 1 _Tucker’s Black.

App._ 304-5.

That there may be no doubt about the meaning and force of these words,

I quote the following passage from Chancellor Kent:--

“It may be received as a self-evident proposition, universally

understood and acknowledged throughout the country, that no person can

be taken or imprisoned, or disseized from his freehold, or liberties,

or estate, or exiled, or condemned, or deprived of life, liberty, or

property, unless by the law of the land, or the judgment of his peers.

The words, ‘by the law of the land,’ as used by the Magna Charta,

in reference to this subject, are understood to mean ‘due process

of law.’ That is, _by indictment or presentment of good and lawful

men_.”--2 _Com._ 13.

Now, in most of the cases which will arise under the Fugitive Slave

law, there will be a “seizure” under a warrant; and in _all_ the

cases, the questions both of property and of liberty will necessarily

be involved. In every case, the claimant will aver property in the

respondent, and will seek to deprive him of his liberty. The respondent

will deny the claim of property, and will seek to retain his liberty.

Now, suppose a man to have lived in Boston or New York for twenty

years; to have contracted marriage; to have bought and sold; to have

hired himself out to others, and to have hired others to serve him;

to have pleaded and been impleaded in the courts; to have voted at

elections, and to be, in all respects, as free by the constitutions of

Massachusetts and New York as the governors of those states themselves;

and suppose further, that this man is suddenly seized and taken before

a commissioner, is adjudged the property of another man like himself,

with no chance of revising the decision, or of having a new trial,

is placed in duress, and then transported by force, and against his

will, to a distant state, under a claim that he is a slave, and an

adjudication that such claim is true,--suppose all this, I say, and

then answer me this simple question, Has, or has not, such a man been

“deprived of his liberty”? In other words, does such a man retain his

liberty? As he is borne away by force, and against prayers, and tears,

and struggles, does he remain free? Can a man be adjudged a slave;

held, coerced, beaten as a slave; with all his powers and faculties

of body and mind subdued and controlled as a slave’s, and yet possess

or retain liberty? If such a proceeding does not deprive a man of his

freedom, by what means can he be deprived of it? What _more_, or what

_other thing_ would you do to deprive him of it? Would binding him

out to serve for life deprive him of it? This declares that he owes

service for life. Would imprisonment deprive him of it? This imprisons

him, and makes the man his keeper who is interested to make that

imprisonment perpetual in himself, and descendible to his children, and

his children’s children forever.

Is not perpetual imprisonment of the nature and substance of

punishment,--of the severest punishment? The constitution has provided

that “cruel and unusual _punishments_ shall not be inflicted,” even

for the perpetration of the worst of crimes; yet here is a case where

the most cruel of punishments, or of privations, may be inflicted

without even a charge of crime. And the argument is, that this form

of punishment may constitutionally be inflicted, because it was so

inconceivably atrocious and diabolical that the constitution did not

prohibit it,--because the constitution only prohibited “cruel and

unusual punishments” _for crimes_, and not for having a dark skin.

Does any one say that a victim of this law has not been “deprived” of

his liberty because he may sue for it, and possibly recover it, in the

courts of the state to which he is carried? I reply, that it would be

just as good an answer to say, that he may possibly recover his liberty

by escape, or possibly his master may emancipate him, or possibly a

St. Domingo insurrection may break out, or possibly the walls of his

prison-house may be shaken down by an earthquake, and he may go forth

like Paul and Silas; and _therefore_ he is not deprived of his liberty

by being enslaved. Neither of these events would have the slightest

legal relation to the proceedings which did enslave him. Neither of

them would be retroactive, undoing or annulling the past. Enslavement

and liberty being incompatible, when he suffers the first, though but

for an hour, he is deprived of the last. The moment he should arrive

within the limits of a slave state, that moment he would be in the same

condition as three million other fellow-bondmen; and it would be just

as rational to say that they have never been deprived of liberty as

that he has not. When our government made war upon Algiers, ransoming

American captives from their horrible bondage and restoring them to

their homes, did it annihilate the preëxisting fact that they had been

enslaved? Did it enable or authorize the historian to say that they had

never been _deprived of their liberty_? Had Algiers been “reännexed”

as one of the states of this Union, could she have said, “We have not

broken the constitution because these men are free again”? I affirm,

then, that when a man in Massachusetts, who by the constitution of

Massachusetts is free, is adjudged to be a slave, is transported as a

slave, and held as a slave, in a southern state, though it be but for a

single day, he is deprived of his liberty. That very thing is done to

him which the constitution says shall not be done but by a jury of his

peers.

But a question of PROPERTY is involved as well as a question of

liberty. “In suits at common law,” says the constitution, “where the

value in controversy shall exceed twenty dollars, the right of trial by

jury shall be preserved.”

Now, sir, in regard to this important clause in the fundamental law, I

propose to demonstrate the three following propositions:--

First; the claim, made before a competent magistrate, for a “person

held to service or labor,” is, in view of this constitutional

provision, a “suit.”

Second; it is a “suit at common law.”

Third; it is a suit at common law “where the value in controversy

exceeds twenty dollars.”

As a law term, the lexicographers define the word “suit” to mean

“an action or process for the recovery of a right or claim; legal

application to a court for justice; prosecution of right before any

tribunal;--as a civil _suit_, a criminal _suit_, a _suit_ in chancery.”

Blackstone says, “in England, the several _suits_, or remedial

instruments of justice, are distinguished into three heads,--actions,

personal, real, and mixed.”

“Suit” comes from “_secta_,” and _secta_ from _sequor_; and the phrase

“to bring suit,” denoted anciently, to bring _secta_,--followers, or

witnesses, to prove the plaintiff’s demand. The scope of the word is

now enlarged, so that it embraces the written forms by which an action

is instituted, as well as the proof which sustains it.

We are not, however, confined to the authority of the dictionary. The

supreme court, in the case of _Cohens_ vs. _Virginia_, 6 Wheat. 407,

where this very word “suit,” as it occurs in the constitution, was the

subject of consideration, defined it as follows:--

“What is a _suit_? We understand it to be the prosecution, or pursuit,

of some _claim_, demand, or request. In law language, it is the

prosecution of some demand, in a court of justice. ‘The remedy for

every species of wrong is,’ says Judge Blackstone, ‘the being put

in possession of that right whereof the party injured is deprived.’

The instruments whereby this remedy is obtained, are a diversity

of _suits_ and actions, which are defined by the Mirror to be ‘the

lawful demand of one’s right;’ or, as Bracton and Fleta express it,

in the words of Justinian, ‘_jus prosequendi in judicio quod alicui

debetur_,’--(the form of prosecuting in trial, or judgment, what is

due to any one.) Blackstone then proceeds to describe every species of

remedy by suit; and they are all cases where the party suing claims to

obtain something to which it has a right.

“To commence a suit, is to demand something by the institution

of process in a court of justice; and to prosecute the suit, is,

according to the common acceptation of language, to continue that

demand.”

Now let me take the different clauses of this definition, and see if

every one of them does not necessarily include the demand made by a

slave claimant against the alleged slave.

“We understand a suit,” say the court, “to be the prosecution or

pursuit of some _claim_, demand, or request.” Here, then, according

to the supreme court, a _suit_ is the prosecution of some _claim_;

and, according to the very letter of the constitution, the fugitive

slave is to be delivered up, on _claim_. The slave, then, can be

constitutionally and legally “delivered up” in no other way than “on

claim,” by “suit.”

Again, say the court: “In law language, it [a suit] is the prosecution

of some demand in a court of justice.” When legal process is instituted

for the recovery of a slave, is it not the prosecution of a demand? And

will any one be rash enough to say that a man ostensibly free,--free

according to all legal presumption,--can be “delivered” over to bondage

for life, without the intervention of “a court of justice”?

To proceed with the opinion of the court: “The Mirror defines a suit

to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta

express it, in the words of Justinian, it is the form of prosecuting in

trial, or judgment, what is due to any one.” Here service is alleged to

be due; and the one who is said to owe that service is “prosecuted by

trial and judgment,” that he may render the service claimed.

“To commence a suit is to demand something by the institution of

process in a court of justice; and to prosecute the suit is, according

to the common acceptation of language, to continue that demand.” In the

appeal to a court for the possession of an alleged fugitive, is not

something “demanded”? And what is the warrant that is issued for his

arrest but the “institution of process”?

If any one, then, will show that a “claim” for an alleged fugitive, by

process of law, to be followed up by proof in support of the claim, and

to be consummated by judgment, is not a “suit,” he must show that it

is not “the prosecution or support of a claim;” he must show that it

is not “the prosecution of some demand in a court of justice;” he must

show that it is not “the lawful demand of one’s right;” nor “the form

of prosecuting in trial or judgment;” and finally, he must show that it

is not “to demand something by the institution of process in a court of

justice,” and then “to continue that demand” until judgment is rendered

for or against him.

But should the claimant of a fugitive slave show any one of these four

things, he would show himself the way out of court.

And this brings me to the _second_ proposition, namely,--

The claim for a person “held to service or labor” is, in view of the

constitution, a “_suit at common law_.”

In a decision bearing directly on the right to a trial by jury, the

supreme court has defined the phrase “suits at common law,” in special

reference to its meaning in the seventh amendment to the constitution,

where the right to such trial, “in suits at common law,” is secured.

These are their words:--

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