only to slaves, and that because slaves are not parties to the
constitution they are not under its protection, and so not included
in the provision for jury trial, there is another answer perfectly
fatal. It is this: the constitution does not enumerate the various
classes of criminals who shall be entitled to trial by jury; but with
the exception of cases of impeachment, and cases in the military and
naval service, it expressly declares as follows: “The trial of all
crimes shall be by jury.” And also, “In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial by
an impartial jury,” &c. The right, therefore, is not made to depend
upon the _classes of persons_ on trial, but upon the nature of the
charge brought against them. The constitution does not say that
freemen shall be tried in one way and slaves in another; but its
language is, “all crimes,” and “all criminal prosecutions;” so that
it embraces every person _who is prosecuted_, whether free or slave,
citizen or foreigner, Jew or Gentile. If an Englishman or a Frenchman
were to be tried here for murder, how would the whole world deride
the suggestion that he should not have a jury trial because he is a
foreigner,--because he is not one of the “people,” and so not a party
to the constitution!
So the constitution does not say, in suits between merchant and
merchant, or between landlord and tenant, and so forth, “the right of
trial by jury shall be preserved;” but it says, “_In suits at common
law_, where the value in controversy shall exceed twenty dollars.” The
right is not determined by the character of the litigants, but by the
nature of the action. The constitution does not care who the parties
are,--man, woman, bond or free,--it is all the same. As soon as parties
appear upon the record, the right to trial by jury attaches. The
_suit_, and not the _civil condition_ of the litigants who instituted
or who defend it, tests and determines the jury question.
In the case of _Lee_ vs. _Lee_, before cited, the law allowed an appeal
only in case the sum in controversy should amount to one thousand
dollars. The appellant was of African descent, and therefore, within
that jurisdiction, presumptively a slave; not presumptively a freeman,
as every man is in a free state; and, if a slave, then he could own no
property; for, by the cruel law of slavery, every master may rob his
slave legally of all that he earns, or finds, or otherwise receives.
Yet the supreme court sustained the appeal. Why was not so astute an
exception as this then taken?--an exception which, if they have a bar
in Pandemonium, would have done honor to one of its counsellors. Why
was it not said that a slave was no party to the law, and therefore
not entitled to its benefits? No reason can be assigned why a slave
is not as much under the protection of a constitution made for the
“people,” as under the protection of a law made for the “people.”
Yet here, even in the case of a presumptive slave, a right was
acknowledged, which some freemen, in free states, deny to presumptive
freemen.
I have here been combating the argument, that because the Fugitive
Slave law is aimed at slaves, no freeman has any ground of complaint
against it, even though he should be converted into a chattel under
it. He must console himself under the doom of interminable bondage,
with the patriotic and pious reflection that he is only suffering,
as an exception, to prove the general excellence of the law; and he
must leave this consolation also to his enslaved children. For, in his
case, it is said that eternal slavery is only one of those exceptions
in the working of the law which proves the rule of its general
excellence. This argument I hold to be eminently sophistical and
cruelly oppressive. But if any one believes it to be a sound argument,
then I hold him to all fair deductions resulting from it,--of which the
following is clearly one:--
On the same ground on which Congress passes a law for escaped slaves,
let every free state pass a law for resident freemen. The presumption
in every free state being, that all men within its borders are free,
let every such state give the trial by jury, in all cases in which
personal liberty is involved, to every one who shall ask for it, and
who has not once had it in a litigation with the same party, on the
same subject-matter. According to the argument I have been considering,
no slaveholder can complain of such a law; for, by its very terms, it
applies only to freemen. The law of Congress applying only to slaves,
and the supposed state law applying only to freemen, there is no
conflict between them. And if, by accident or mistake, any real slave
should take shelter under such a state law, and should escape a life
of horrible bondage, it will be only one of those mistakes which may
arise under the purest administration of justice. It will answer quite
as well as its counterpart case, to stand as one of those exceptions
in the working of a rule which prove its general excellence. If the
occasional subjection of a freeman instead of a slave, to all the
horrors of bondage, constitutes no valid objection to the United
States law, then, surely, the occasional enfranchisement of a slave
from a bondage that was always unjust and cruel, should constitute no
objection to the law of the free state. If this Fugitive Slave law
continues for a single year, I hope every free state will pass a law
inflicting condign punishment upon every man who directly or indirectly
assists in sending any man into southern bondage, unless he can prove
before a jury that the man so sent was a slave.
So far, I have considered the question, whether a fair interpretation
of the constitution does not secure the jury trial in every free state,
to an alleged fugitive, and empower him to demand it as a matter of
right.
But this is a strange question to discuss in a republican government.
The proper question is, not whether the constitution expressly
_demands_ the jury trial, but whether it will, by any fair implication,
_allow_ it. The only point which a republican judge or citizen can,
with decency, make on this subject is, Does the constitution forbid,
prohibit, deny, such trial?--for, if it does not, then the jury should
be granted of course. In a free country, under a free government,
where the idea has become traditional, where the doctrine has become
a household doctrine, that the trial by jury is the palladium of our
civil and religious liberties, is it not amazing that we should find
men who seem eager to avoid this form of trial, rather than zealous to
grasp it? It is the saddest of spectacles; it argues the most mournful
degeneracy, to see the children at this early day, from grovelling
notions of ambition and of wealth, abandoning those noble principles
of freedom for which their fathers so lately shed their blood.
Wherever the constitution allows the trial by jury, in a matter of
human liberty, in Heaven’s name let us have it. Let Russia and Austria
curtail and deny this privilege of freemen; let the tyrant, and the
tyrant’s minions among ourselves, explore the musty records of darker
times, to find precedents against it; let them strive, by their shallow
sophistries and plausibilities, to gloss over this ravishing of liberty
and life from beings created in the image of God; but let every true
republican, whenever, in the disposal of these momentous interests,
the constitution will, by fair construction, sanction it, cling to the
trial by jury, as to the only plank that will save him,--ay, the only
one that will save the human race,--from being again ingulfed in the
vortex of despotism. The enemy of the trial by jury, wherever human
liberty is concerned, is the enemy of human liberty and of the human
race. The friends of a repeal of this law, then, need not discuss the
question whether the constitution does expressly confer the right of
trial by jury upon the alleged fugitive, for it is enough for them if
the constitution does not take it away.
It is worthy of remark, that in both of the bankrupt laws passed by the
United States, it was expressly provided, that when the commissioners
should declare any person to be a bankrupt, he should have the right to
a trial by jury to annul their decision. Thus, when the law proposed,
not to appropriate a man’s property, but merely to enable his creditors
to receive it in payment of their debts, the jury trial was secured
to him; but here, where the direct purpose is to strip a man of his
liberty, and of his property in himself, the jury trial is denied.
This seems an appropriate place to consider the further irrelevant
suggestion, sometimes obtruded, namely, that an alleged fugitive is not
deprived of a trial by jury, because he may have it in the state to
which he is carried.
Here the pro-slavery advocate admits, at least for argument’s sake,
that the alleged fugitive has a right, at some time, and some where, to
the jury trial. If so, then there are numerous and powerful reasons why
this trial should be had in the state in which he is found, rather than
in that to which he may be transported. I will advert to a few of these
reasons.
1. Slaves are held to be personal property. Trover lies for their value
where they have been unlawfully converted. Trespass is the remedy
for an injury done to them. According to the laws of all the slave
states, they are the subject of larceny. Suits to recover them, or to
recover damages for an injury done to them, are personal actions; and
in personal actions it is required, by all the precedents and all the
analogies of the common law, that the action should be tried in the
jurisdiction where the writ is served. By the common law, personal
actions are transitory. They are to be brought where the defendant
resides; or, at least, where the property which is claimed lies. In the
case of an alleged slave, both the defendant and the property are where
_he_ is found. According to the usages and principles of the common
law, therefore, the trial should be there.
2. Before trial and judgment, the parties are like any other parties
before the court, or they should be so. The claimant stands upon the
merits of his claim; the respondent upon those of his defence. It
may be inconvenient for a Texan claimant to prove his right to an
alleged fugitive in Massachusetts; but it will be indefinitely more
inconvenient for a citizen of Massachusetts to prove his freedom in
Texas. If the trial is in Massachusetts, and the plaintiff prevails, he
takes immediate possession of his slave, and is invested at once with
all the rights which the rigors of the slave law so abundantly give.
But if the trial is in Texas, whither the defendant has been forcibly
exiled, and there _he_ prevails, who is to reimburse or recompense him
for his intermediate bondage; for being dragged from his home; torn
from wife, children, and friends; for being plunged, perhaps for years,
into the hell of slavery itself, with all the untold agonies of an
apprehended slavery for life?
What Judge Story says respecting the right of all persons who are
accused of crime to be tried by a “jury of the state and district
wherein the crime shall have been committed,” applies with full force
to a trial for liberty. “The object of this clause,” says he, “is to
secure the party accused from _being dragged to trial in some distant
state_, away from his friends, and witnesses, and neighborhood.”
“Besides this,” he continues, “a trial in a distant state or territory
might subject the party to the most oppressive expenses, or perhaps
even to the inability of procuring the proper witnesses to establish
his innocence.” (3 _Com_. 654.) For “innocence” read _liberty_, and the
argument in behalf of the alleged criminal becomes applicable to the
alleged fugitive. And why should the alleged fugitive be treated less
mercifully than the alleged felon? The law is unspeakably rigorous in
the case of an alleged fugitive, but softens into mercy over an alleged
pirate or murderer.
If the trial, then, is where all the practice and principles of the
common law indicate that it should be, no great or irreparable injury
is done; no inconvenience even is suffered beyond that which is always
suffered in enforcing a claim in a foreign and distant jurisdiction.
But if a freemen is carried away, a grievous and intolerable wrong is
done; a wound is inflicted which mortal medicaments cannot heal, nor
the longest continued punishment of the malefactor ever expiate.
3. By transferring the trial to the place of the claimant’s domicile,
an effective, and, as it seems to me, a most iniquitous advantage is
given him, in regard to evidence, while the respondent is subjected
to cruel disabilities. By the laws of all but one or two of the slave
states, persons of African descent, whether slave or free, are declared
incompetent witnesses against white men. The freeman, then, by being
removed as a fugitive into a slave state, may lose his evidence, which,
under such circumstances, is the loss of his liberty. This violation,
therefore, of the principles of the common law, in regard to the
place of trial, is, to him, of the most momentous consequence. It is
not true, then, in any just sense, that the trial by jury is still
“preserved” to the alleged fugitive, notwithstanding his removal to a
slave state. The common law trial, as inclusive of the right to adduce
common law evidence, is not “preserved.”
4. But not only is the evidence different, but, in some of the slave
states, _the law itself is different_; so that one man may carry
another by force into a jurisdiction where the law will account him
a slave, when, had he been tried where he was found, the law would
declare him free,--the facts in both cases being the same.
Take the law of Kentucky, for instance,--and I refer to this state
because its slave code is of a milder type than that of most of the
Southern States, its dreadful rigors being mitigated by an infusion of
more humanity.
By the laws of Kentucky, a master may carry a slave _in transitu_,
through a free state, or he may allow his slave to go temporarily
into a free state, without a forfeiture of the legal right to hold
him. _Graham_ vs. _Strader & Gorman_, 5 Ben. Munroe, 173, (1844;)
_Davis_ vs. _Tingle et al._, 8 Ben. Munroe, 545, (1848;) _Collins_ vs.
_America_, 9 Ben. Munroe, 565, (1849;) _Bushe’s Reps._ vs. _White_, 3
Munroe, 104; _Rankin_ vs. _Lydia_, 2 A. K. Marshall, 468, (1820.)
In Massachusetts certainly, and I suppose in most of the Northern
States, all such cases would be decided in favor of the respondent.[20]
Now, what greater outrage can be inflicted upon a man than to seize,
and bind, and carry him into a foreign jurisdiction, where not only is
the evidence different, by which his rights may be proved, but where
the law also is different, by which his rights are to be adjudicated.
In Holland, the killing of a stork once was, if it be not now,
punishable with death; because this bird devours the animals that
would otherwise bore through and undermine its ocean-barring dikes.
In a neighboring country, the killing of a stork may not be merely
blameless, but praiseworthy. What an atrocity it would be to seize a
man in the latter country, and carry him to Holland to be tried and
executed for doing an act which, according to the law of the place
where he had a right to be tried, may have been not only innocent, but
laudable! I leave you, sir, to make the application.
5. But what must shock every man who possesses any just appreciation
of the value of human liberty, or has any just perception of the
principles on which it is founded, is, that under the Fugitive Slave
law, the plaintiff gets possession and control not only of the chattel
or article of property claimed, but of the defendant himself. He gets
command, not only of the thing in litigation, but of the body and soul
of the litigant. A Boston or New York merchant would consider it a
grievous hardship, if a southern adventurer could go there and seize
upon all his property, transport it to Mobile, or New Orleans, and
compel the owner to follow it and try title to it, in the place of
the captor’s domicile. Still more grievous would the hardship become,
if, under the new jurisdiction, the defendant might be deprived of
the evidence which, at home, would be decisive of his rights, or find
himself controlled by adverse laws which he never had helped to frame.
But what an extreme of barbarous tyranny would it be, if, beyond all
these enormities, the southern plaintiff could seize him too,--the
defendant himself,--the alleged debtor,--and grasp him in his own
iron hand, obtaining supreme control over his body by force, and over
his mind by fear; could command his powers of locomotion, so that he
could go only where the will of his master would permit; could control
his speech and his vision, so that he could consult with no counsel,
and could see no friend but such as were in his master’s pay; and, to
enforce his authority, could imprison him, and starve him, and scourge
him, and mutilate him, if he but so much as uttered a whisper that
he had a right to have a trial by his country, or opened his lips in
prayer to God to break the fetters of his iniquitous bondage!
To tamper with the witnesses of the adverse party, or endeavor to
suborn his counsel to violate their duty to their client, is not only
an act of the grossest baseness, but would subject the offender to
penal retribution. Yet what need would there ever be of corrupting
witnesses or suborning counsel, if a party could get bodily possession
and absolute control of his antagonist himself?
Does not every one see that, in ninety-nine cases in a hundred, a
control over the defendant’s person and will would be a control over
his case? His rights would be lost in his enforced disability to defend
them. You might as well put out a man’s eyes, and then talk of his
right in the common sunlight. In Baltimore, or Louisville, a kidnapped
freeman might find an opportunity of self-redemption; but such a
captive will never be carried to Baltimore or Louisville. He will be
sent to some interior region, perhaps fifty miles from any court, or
the residence of any counsel, where he may never have an opportunity to
speak to a white man unless it be to a taskmaster, who is paid to guard
and to silence him.
The authors of the Federalist deemed the principle of excluding an
interested party from all power of deciding his own cause to be so
important, that they laid down the following doctrine: “No man ought
certainly to be a judge in his own cause, or in any cause, in respect
to which he has the least interest or bias.” (No. 80.) Yet the only
chance which the Fugitive Slave law allows to a freeman, when carried
into bondage, is that which he may exercise while under the absolute
control of his robber master.
But more than this: the law imposes no obligation upon the claimant to
carry his victim to the state he is charged to have escaped from. A man
charged to have escaped from Texas may be carried to Florida. Nay, he
may not be carried to any state in this Union; but may be sent to Cuba
or Brazil; beyond hope, and into the outer darkness of despair.
All the arguments which I have ever heard, or seen, on this point,
gratuitously _assume_, that the persons reclaimed and transported
will have an honest master, be surrounded by kind friends, and have a
lawyer at hand whom they can consult with every day, and money in their
pockets to fee him. Would such be the case of a kidnapped freeman?
Would a wretch, vile enough to rob a man of his liberty, carry him
five hundred or a thousand miles, and then go to a shire town during a
session of the court, and give his pretended slave a purse of money
with which to fee a lawyer for investigating his right to freedom?
No! the man who knows, or suspects, that he has seized a freeman, or
that his victim even believes himself to be a freeman, and will put
the claimant to the trouble and expense of a trial, will plunge that
freeman into the abyss of bondage, where no ray of hope may ever reach
him, and where his voice will be hushed as in the silence of death.
Another objection to the Fugitive Slave law is, that it confers
judicial power upon persons who are not judges. Here we are not left
to inference or construction, but can stand on the plain words of the
constitution. The third article declares,--
“The judicial power of the United States shall be vested in one
supreme court, and in such inferior courts as the Congress may from
time to time ordain and establish. The judges both of the supreme and
inferior courts shall hold their offices during good behavior, and
shall at stated times receive for their services a compensation which
shall not be diminished during their continuance in office.”--_Art._
III. § 1.
Here I hold it to be clear beyond dispute, that the “judges” mentioned
in the second sentence of the above section are the members of the
“supreme court” and “inferior courts” mentioned in the first section,
and no other. If so, then there can be no doubt about the tenure of
their office, and the mode of their appointment, compensation, and
removal.
By sec. 2, of Art. II., the President “shall nominate, and by and
with the advice and consent of the Senate shall appoint,” “judges of
the supreme court, and all other officers of the United States, whose
appointments are not herein otherwise provided for, and which shall be
established by law.”
The appointment of _no_ judge of _any_ court is “otherwise provided
for in the constitution;” and therefore the appointment of _all_ the
judges in whom “the judicial power of the United States is vested,”
belongs by the constitution to the President and Senate; and this
“judicial power” cannot be delegated to, nor exercised by, any persons
not so appointed.
The courts may appoint “inferior officers,” such as clerks, criers, or
masters in chancery; but these are not “judges;” nor would any one of
them singly, nor any number of them associated together, constitute a
“court,” within the meaning of the first section of the third article.
Were such the case, then _they_ might have power to appoint “inferior
officers,” and so on, by sub-delegation, indefinitely.
The constitution also defines what it means by “judicial power.” It
says, “The judicial power shall extend to all cases in law and equity
arising under this constitution, the laws of the United States,” &c.
Now, my objection is, that the Fugitive Slave law requires the creation
of a large body of officers who are not “judges,” but whom it purports
to invest with “judicial powers.”
They are not “judges,” because they are not nominated by the President
and confirmed by the Senate, as all “judges” must be.
They are not “judges” again, because, if they were, they must hold
their offices “during good behavior.” But the commissioners may be
unmade on the day they are made. “Judges” can be removed only by
conviction, on impeachment. Commissioners may be removed by the court
that appointed them. Not the President, nor the Senate, nor both
together, can remove a judge, unless by the initiatory and concurrent
action of the House of Representatives. An “inferior court” can eject a
commissioner without notice.
Even if Congress had declared, by express words, that the commissioners
appointed by the circuit and district courts should be taken and
held to be “judges,” it would not make them so; for Congress cannot
delegate any power to judges to appoint judges, nor to courts to make
courts. If Congress could not do this by express enactment, how can it
do so by implication?
Commissioners are not “judges,” also, because no person can be a
“judge” who is not entitled, “at stated times, to receive for his
services a compensation which shall not be diminished during his
continuance in office.”
This provision necessitates the conclusion that all “judges” must be
entitled to salaries payable periodically. These salaries are in no
case to depend upon the _amount_ or the _quality_ of their labors,--far
less, if possible, upon their deciding the cases that are brought
before them for the plaintiff or for the defendant. One “judge” may
have an enviable reputation for talent and integrity, and thus attract
suitors to his court. Another may be as corrupt as Lord Jeffries,
and repel all honest litigants from him. But, in either case, he has
a right to a compensation which shall not be diminished during his
continuance in office. Each year gives him a definite, unchanged sum of
money.