By the principles of the English law, the privilege of the _habeas

corpus_ attaches to all, whether bond or free. The words _liber homo_,

says Lord Coke, extend to every one of the king’s subjects, “be he

ecclesiastical or temporal, free or _bond_, man or woman, old or young,

or be he outlawed, excommunicated, or any other, without exception.”--2

_Inst._ 55.

I now proceed to lay open for the abhorrence of mankind other

deformities of this most odious law. In opposing a law, a distinction

is to be made between the courts and the people; between the bench and

the ballot-box. The courts can hear but one objection to a law. It

may be impolitic, unrighteous, atrocious; but if it be constitutional

they must sustain it. But before the tribunal of the people, a law may

be impeached for any attribute of cruelty, oppression, or meanness.

I denounce the Fugitive Slave law for all these qualities. In its

scornful rejection of all those common-law principles of evidence

which have been ratified by the wisdom of ages; in the “summary” and

piratical haste of its proceedings, and in the indelible blood with

which its judgments are recorded, I believe it has not a parallel in

the modern code of any civilized people.

Should the courts, hampered by previous decisions, and habituated to

the spectacle and the support of a cruel institution, pronounce this

law to be constitutional, such a judgment would give new force to every

reason why the people should demand its modification or repeal. It is

not enough that it should be declared void by the courts as against the

fundamental law of the land; it deserves to be branded by the people

as abhorrent to humanity, to civilization, and to the gospel of Jesus

Christ.

Look at its provisions in regard to evidence. The proof of three facts

dooms the victim: first, that the person named in the warrant owes the

claimant service; second, that he has escaped; and, third, identity.

Now, according to the law, all these facts may be proved in the absence

of the party to be ruined by them. The whole case may be established

by evidence taken behind the victim’s back, without notice to him,

without knowledge, or possibility of knowledge, on his part. A freeman

may be suddenly arrested, and dragged into court, and on certain papers

being read against him, which he never saw nor heard of before, he may

be ordered into the custody of officers, and hurried to a returnless

distance from wife, children, and friends, reduced to the direst

form of bondage the world ever knew, and at the expense of the very

government which he has been taxed to support, and which in turn was

bound to protect him. I will prove by a reference to the act itself

that these atrocities are among its conspicuous features.

By the sixth section it is made the duty of the “court, judge, or

commissioner,” “upon satisfactory proof being made by deposition _or

affidavit_, in writing,” “or by other satisfactory testimony,” “and

with proof, _also by affidavit_, of the identity of the person whose

service or labor is claimed,” “to make out and deliver to such claimant

a certificate,” &c.

And the tenth section of the act declares that the transcript of

a record “taken in any state or territory, or in the District of

Columbia,” and “produced in any other state, territory, or district,”

and being there “exhibited to any judge, commissioner, or other

officer authorized to cause persons escaping from service or labor to

be delivered up, shall be held and taken to be full and _conclusive_

evidence of the fact of escape, and that the service or labor of the

person escaping is due to the party in said record mentioned.” “And

upon the production of other and further evidence, _if necessary_,

either oral or _by affidavit_, of the identity of the person escaping,

he or she shall be delivered up to the claimant.”

Here, then, is a provision unknown to the common law of England, or

to any colony, or people, or tribe that ever claimed the common law

of England as their inheritance; unknown even to the star chamber,

or high commission court; unknown in the bloodiest reigns of the

bloodiest tyrants that ever sat upon the English throne; unknown

to those judicial villains whom Lord Campbell calls “_ruffians in

ermine_”--incorporated into the code of a republican government.

Evidence, which may consign to slavery a man who is ostensibly and

presumptively free,--free by the laws of the state where he is, and

free every where by the law of God and humanity,--may be prepared in

his absence, without any notice to him, and by any means of perjury or

subornation of perjury to which guilt may resort, and this evidence is

made legally sufficient to doom a fellow-being to relentless bondage.

Notwithstanding those remarkable clauses in the constitution which

provide that “in all criminal prosecutions the accused shall enjoy the

right to a _speedy_ and _public_ trial,” “be informed of the nature

and cause of the accusation,” “be confronted with the witnesses against

him,” “have compulsory process for obtaining witnesses in his favor,”

“and have the assistance of counsel for his defence;” yet Judge Story

comments upon them in a spirit of dissatisfaction and sorrow; “for,”

says he, “unless the whole system [of the common law] is incorporated,

_and especially the law of evidence_, a corrupt legislature, or a

debased and servile people, may render the whole little more than

a solemn pageantry.” (3 _Com._ 662.) In speaking of a “corrupt

legislature,” he seems to describe what this Congress has done in

enacting the Fugitive Slave law at its last session; and, in speaking

of a “debased and servile people,” he speaks of just such a people as

the advocates and champions of this law are now striving to make the

people of the United States become!

The right of cross examining witnesses is a common-law right,

appertaining to all kinds of trials. It is a right without which all

trials are but mockery. It is oftentimes a hardship to be confronted

with witnesses of whom one knows nothing; but to be debarred from all

opportunity of getting, by cross questioning, at the knowledge that

is in them; to be debarred from the right of showing that they are

incompetent even to folly, or corrupt even to wilful perjury, this is

a barbarity unknown to any code in the civilized world, save to the

code of the United States of America. It is what even barbarians might

be ashamed of. It is offering bounties and premiums on villany, and

turning the courts into brokers’ offices for perjury. Under such a law,

is there a single colored person at the north who can rise to his labor

in the morning, or lie down to his repose at night, with any feeling

of security that avarice and false swearing may not then be at work

for his destruction? Who can wonder, if he is tormented in his nightly

dreams by images of the man-stealer, in far off regions, plotting for

his ruin? Who can wonder if, in his city residence, he starts as he

turns the corner of every street; or, in his rural home, if he shudders

at the rustle of every leaf, lest some kidnapper should spring from his

ambush to seize him? That sense of personal security which every honest

man is entitled to feel, this law abolishes. The virtuous man cannot

rely upon his government, nor the pious man upon his God, for earthly

protection. For him the Prince of Darkness has obtained the ascendency

in the affairs of men, and offers impunity to guilt, while protection

is withdrawn from innocence. The life of such a man is a perpetual

agony of alarm for himself and for his family. A cloud charged with

lightning is forever suspended over his head, and no genius can devise

the means to turn aside its bolts.

Sir, before God, I believe that, in the judgment of an impartial

posterity, this method of taking evidence, by the cruellest of means

and for the wickedest of purposes, will be held as atrocious and as

execrable as that horrid method of extracting evidence by torture,

which once prevailed, but which now even half-civilized nations

have abolished. A brave heart could withhold a false confession,

even upon the rack. With the images of wife and children before the

eyes, martyrdom for their protection has been sweet. But there is no

man whom God ever made who will not tremble, and stand aghast with

consternation, with the conscious knowledge in his mind that he, his

wife and children, and all that he holds dear upon earth, are at the

mercy of every pirate-hearted villain between the Atlantic and the Rio

Grande; nay, that the government offers inducement to foreign assassins

to come here, where, with less risk, they can make more money by false

swearing and judicial kidnapping than they could at home by murder and

robbery. Better, a thousand times better, had the constitution allowed

the citizen “to be compelled to be a witness against himself,” and

laid its prohibitions upon the fabrication of testimony against him in

his absence.

The tenth section of the act declares that this evidence, thus

obtained under a foreign jurisdiction and in the absence of the

party, shall be “_conclusive_.” Now, the legal force and meaning of

this provision is, that no amount or weight of evidence, no array of

the most unimpeachable witnesses, not even the personal knowledge

of the commissioner himself, who tries the case, though given under

the sanction of an oath, which the law does not require him, as a

commissioner, to take, shall be admissible to rebut this “conclusive”

testimony. It is not made _prima facie_ evidence merely against the

respondent; it does not merely shift the burden of proof, so that the

presumptive freeman becomes presumptively a slave, and must himself

establish the freedom he would possess; but the law magnifies it into

a species of proof that is “conclusive,”--that is, unquestionable,

irrefragable, omnipotent,--like a miracle of God, not to be disputed.

And this greatest of legal force is given to the worst kind of

evidence. I say that a law so worthy of abhorrence, so truculent,

so fiendish, is not to be found upon the statute book of any other

civilized nation on the globe.

Such, too, has been the practical construction given to the law. I

see by the papers that, in a late case which occurred at Detroit, the

respondent declared himself a free man, and prayed for a continuance,

to allow him to send to Cincinnati for his free papers. But the

commissioner refused the delay, saying that, under this law, even free

papers from the very man that claimed him would be of no avail; for

where the law made the evidence _conclusive_, nothing could rebut it.

Any counter evidence must always be admitted, on the hypothesis that

the evidence already received may be controlled by it. But what an

infinite absurdity to suppose that one mass or body of proof can be

_conclusive_, over another which is _conclusive_. The law might just as

well have made _color_ conclusive, not only that the respondent was a

slave, but that he ran away from the man who claims him. The law, as it

stands, is as much a slave-making as it is a slave-catching law.

It declares that the proceedings shall be “summary;” and it provides

a different rate of compensation, according as the decision is for

freedom or against it. On what principle is this difference of

compensation founded? Every body can see at a glance that when a

claimant can prepare his evidence beforehand and in secret, he would be

a fool not to make out a _prima facie_ case. If the respondent adduces

no proof, the case goes by default, and judgment, without delay, is

entered against him. But if the claim is contested, then witnesses are

to be examined, arguments are to be heard, evidence is to be weighed,

legal questions to be investigated, and such a decision made as the

commissioner is willing to pronounce before the world. It is only in

the last class of cases, the contested class, that the respondent

will be discharged. The cases, therefore, that result in freedom will

ordinarily occupy sixfold or tenfold more time, besides requiring

the exercise of more legal knowledge and ability, than those which

terminate fatally to the respondent. Yet for decreeing the freedom of

a man, the fee is but half as much as when a sentence of bondage is

awarded against him. This surpasses the bribery of Judas by the high

priests. They had not diabolical wit enough to present a contrast

between right and wrong, as a special stimulus for committing iniquity.

The “summary manner” of trial provided for by this law, when considered

in reference to rights so momentous, shocks every Anglo-Saxon mind.

One’s blood must all be corrupted in his veins, before he can hear of

it without indignation. It is the noblest attribute of our race, that

we hold civil and religious liberty to be more sacred and more precious

than life itself. Yet by what safeguards of constitution, of law, and

of forms of practice, is life protected amongst us? There must be a

presentment, by at least twelve sworn men, before a man can be held to

answer to a charge by which it can be forfeited. Then come the traverse

jury, the right of peremptory challenge, the assignment of counsel,

the right to see the indictment beforehand, and to know the names of

witnesses who are to be called against the accused, and compulsory

process to insure the attendance of witnesses in his favor! What noble

barriers are these against the oppression of a powerful government,

and the malignant passions of powerful men! The probable culprit,--the

man laboring under the most violent suspicion,--though caught with the

blood-red dagger in his hand over the prostrate body of the victim,

is guarded by all that human ingenuity has been able to devise; by

all the knowledge that we can command this side of the omniscience,

and by all the power this side of the omnipotence of God. Yet in the

very community where these rights are reverenced and upheld, a man may

be seized without notice, hurried to a tribunal without an hour for

preparation, and then be borne away a thousand miles, where all that

life has of hope and of enjoyment is taken away, and all that it knows

of misery and of terror is realized.

Let me ask any man who ever had a case in court that was worth

defending, whether he was prepared to meet it the first hour he had

notice of its existence? A respondent’s witnesses may be resident in

different states, and distances of hundreds of miles may intervene

between him and them. His proof may consist of deeds, or wills, or

records, which cannot be found or authenticated without delay. His

defence may consist of matters of law, which the ablest counsel may

require time and the examination of books to investigate. All these

obstacles to instantaneous readiness may exist together, and yet the

inexorable mandate of the law scorns his appeal for that delay on

which his highest interests are suspended, and dooms him to bondage

because he cannot achieve impossibilities. Under such a law, not one

man in ten who will be arrested, even though he should be free, will be

prepared to establish his freedom. A great portion of these outcasts

from human justice, I doubt not, are better prepared for the summons of

instantaneous death than for this summons of instantaneous trial.

Then the cruel haste in executing judgment! The murderer is allowed a

season of respite between the hour of sentence and the hour of death;

the debtor may turn out goods to satisfy a creditor’s demands; but the

alleged fugitive has no reprieve. He has no opportunity to solicit

money to redeem himself, or to negotiate for the ransom of body and

soul. Swift and sure as an arrow to its mark, he is speeded on his way

to the abodes of toil and despair. The witnesses who swore away his

liberty may have been perjured, but he cannot stop to convict them.

The court may have been corrupt, but he cannot remain to impeach it.

However honestly rendered, the judgment may be reversible for error in

law, but he cannot stay to set it aside.

Now, every one must see that where there is so little caution before

trial, there should be a liberal opportunity for revision after it. But

here is infinite exposure to error with no chance for rectification.

Overstepping the acts of the common tyrant, there is an infliction

of the most heinous wrong, with a premeditated purpose that it shall

not be repaired. The great and free republic of North America has

transferred the unwritten law of Judge Lynch to its statute book.

However clear the constitutional obligation of Congress to enact a law

for the reclamation of fugitive slaves may be supposed by any one to

be, there certainly are limitations to this obligation, which all the

principles of our government forbid the law-maker to transcend.

In the first place, this constitutional obligation must be strictly

construed. The main and primary object of the constitution was to

protect natural rights; but the object of the Fugitive Slave clause was

to protect a legal right in conflict with natural right. All judges

of an honorable name, all courts in all civilized communities, have

recognized a broad distinction in the principles of interpreting law.

They have held that provisions against life and liberty should be

strictly construed, while those in favor of life and liberty should be

liberally construed,--the one so construed as to inflict as little of

pain and privation as possible; the other, to give as much of freedom

and immunity as possible. These have become maxims, or axioms, of legal

interpretation; and in their long and unbroken recognition, it is not

too strong an expression to say, they impetrate and command a strict

construction of that clause in the constitution under which fugitives

may be claimed. And the same legal maxims, in regard to all subjects

touching life and liberty, bind Congress in legislating under the

constitution, as bind the judicial tribunals in administering the law.

Yet the Fugitive Slave law contains provisions which there can be no

pretence nor shadow of a pretence that the constitution requires. By

the constitution, “No person held to service or labor in one state,

escaping into _another_, shall be discharged.” Into _another_ what?

Indisputably, into another _state_. It must mean _state_, and can mean

nothing else; for the laws of language admit no other construction.

The expression, “No person held in one _state_, escaping into

_another_ TERRITORY,” would be not merely ungrammatical and un-English,

but nonsensical. No man of common intelligence ever so construed a

sentence. Yet the sixth section of the act provides not only for the

case of slaves escaping from one state into another state, but for

their escape from a state into a _territory_, and for an escape from a

_territory_ into a state, and for an escape from one _territory_ into

another _territory_. Four classes of cases are provided for by the law,

while but one of them finds any warrant in the constitution.

Now let any one take a map of the United States, and see over

what a vast area the law extends, over which the provision in the

constitution does not extend. The region is continental over which the

law unconstitutionally extends, and this corresponds with the vast

inhumanity of the principle which so extends it.

Mark another particular in which the provisions of the law go

beyond the requirements of the constitution. The constitution says

the fugitive shall be “delivered up.” The law makes provision for

transporting him to the claimant’s home. Is there any similar provision

respecting any other species of property? If a northern merchant

recovers a debt from his southern customer, does the government assume

the responsibility of seeing that it is paid to the creditor at his own

home? If a northern man is robbed, and the stolen goods are found in

another state, does the government transport them back and pay freight?

Then, why should government interpose in this case to bear costs and

risks, unless slavery is so meritorious an institution as to deserve

the benefactions as well as the benedictions of freemen?

Then observe how artfully the law is worded, to make the assistance

rendered to the claimant go beyond any supposed necessity in the case.

“If,” it says, “upon affidavit made by the claimant, ... his agent or

attorney, ... that he has reason to apprehend that such fugitive will

be rescued by force, ... before he can take him _beyond the limits of

the state in which the arrest is made_, it shall be the duty of the

officer ... to remove him _to the state whence he fled_.” Thus, if

danger is apprehended, _within the first ten miles_, the government

shall see the slave safely home, at its own expense, _though it be a

thousand miles_.

But besides the unheard-of principle of saddling the government

with the expense of prosecuting the private claims of its citizens

within its own jurisdiction, I should like to know what provision

the constitution contains, which, though interpreted by the most

latitudinarian constructionist, confers any right upon Congress thus to

take the money of one citizen to pay the private expenses of another.

There is no clause, or phrase, or word in that instrument which favors

the idea that the Northern States should bear the expense, as well as

the disgrace, of thus remanding our fellow-men into bondage.

Besides, if the limits of the constitution were to be transcended in

order to deliver an alleged fugitive to his master, would not the

slightest element of equity, or decency, even, require that when a

freeman is condemned to bondage under the law, his expenses, incurred

in returning to the place where he was plundered of himself, should

be reimbursed to him by the government which had failed in its duty

to protect him? If the claimant of James Hamlet could be supplied

with a force, at the government’s expense, to carry him into slavery,

why should not the expense of coming back into a land of freedom be

reimbursed by the government to Adam Gibson, after one of its venal and

villanous instruments had wrested that freedom from him?

The law also provides for another thing which the supreme court has

expressly declared to be unconstitutional, or beyond the power of

Congress to enact. It provides that any _state_ court of record, or

judge thereof, in vacation, may take and certify evidence which shall

be “conclusive” in regard to two of the three points which are made

sufficient by the law to prove a man a slave. Thus, the two facts of

slavery and of escape may be “conclusively” proved by the certificate

of a judge of a _state_ court, so that the judge before whom the

alleged fugitive is brought shall, in regard to these facts, exercise

only a mere ministerial function. Now, he who has power to take and

authenticate evidence, which it is predetermined shall be “conclusive”

in the case, has power to decide the case. This, in its nature and

essence, is a judicial power; yet this power is given by the act to

any _state_ court of record, and to any judge thereof in vacation.

Contrary to this, however, the supreme court has said, “Congress

cannot vest any portion of the judicial power of the United States

except in courts ordained and established by itself.”--_Martin_ vs.

_Hunter’s Lessee_, 1 Wheat. 330. “The whole judicial power of the

United States should be, at all times, vested in some courts created

under its authority.”--_Ib._ 331. “The jurisdiction over such cases,

[cases arising under the constitution, laws, and treaties of the

United States,] could not exist in the state courts previous to the

adoption of the constitution, and it could not afterwards be directly

conferred on them; for the constitution expressly requires the judicial

power to be vested in courts ordained and established by the United

States.”--_Ib._ 335.

Yet, though it is expressly declared that Congress cannot vest any part

of the judicial power of the United States in a state court, the state

courts are empowered by this law to take and certify evidence, which is

made “conclusive” in the case.

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