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.