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:--