But truth compels me to acknowledge that, during the last three

quarters of a century, our course, in this country, has been downward.

While among the other nations of Christendom the altar-fires of

liberty have been kindling and burning with a brighter flame, ours

have been waning. At the foundation of our government an institution

existed amongst us utterly irreconcilable with the fundamental

principles of the government itself. But it was then limited in its

extent, and its spirit nowhere existed in great intensity. Even those

who cherished it most were ashamed of it; and in those provisions of

the constitution which were designed for its temporary protection, a

common regard for decency forbade the mention of its name. Fatally to

our own peace and honor, that which was then regarded as temporary

and local, now threatens to be abiding and universal. From speaking

of slavery with hushed breath, its bold abettors now shout forth its

praises. From providing for the extermination of the African slave

trade, they have converted the slave states into another Africa, this

side the tropics; and by the successful robbery of a neighboring

republic, they seek to create a new America, so that the slave trade,

once abolished and declared piracy, may be revived and legalized.

The Middle Passage is to be transferred from the ocean to the land.

Maryland, Virginia, Kentucky, &c., are to be the Gold Coast, Benin, and

the Galinas; the place of supply, the place of demand, and the highways

of commerce between them are to be within our own borders and protected

by the American flag; and that horrid traffic which all the leading

nations of Christendom united in declaring to be a felony punishable

with death, is now to be maintained and defended amongst ourselves,

under penalty of death and a dissolution of the Union.

Nor does it suffice that the tide of slavery should rise and overflow

the vast and uninhabited regions of the west. It surges up against

the free states themselves, and all the dikes and barriers of that

constitutional law which we have been enacting for seventy-five

years, cannot stay its flood. We thought that Massachusetts was the

impregnable citadel of freedom; but unconstitutional and inhuman laws,

dictated by slaveholders, are now enforced amongst us, and at our very

doors; and our services are commanded for their execution.

Thank God, there is a part of our people who, while they suffer,

resist. Only a portion amongst us have reached that lowest depth of

degradation, where they surrender, not their limbs only, but their

wills, to the hateful service of their masters. Slavery has done its

perfect work only when the soul is enslaved. I rejoice to believe that

we have not only seven thousand in this our Massachusetts Israel, who

have not bowed the knee to Baal, but seven hundred thousand; and recent

events foretell not only an increasing number, but a more determined

opposition.

Why is it, fellow-citizens, that Massachusetts stands first, or among

the first, in 1851, in her hostility to the Fugitive Slave law? I

answer, for the very reason that she stood first in her hostility

to the encroachments of the British crown in 1776. And in less than

seventy-five years from this time, those who oppose and those who

defend this inhuman law, will stand, historically, as wide asunder, and

will share as high an honor or suffer as deep an ignominy, as is now

awarded to the lovers of freedom and the minions of power who lived at

the era of the revolution. Let all young men beware not to be seduced

by any temptations of immediate profit or mistaken honor, to lift a

hand in defence of this law. If they do, then, before they have lived

out half their lives, they will be as ready as old Cranmer to thrust

the offending member into the flames, and to say with him, “This hand,

this wicked hand, has offended.”

Gentlemen, we in Massachusetts are a Union-loving, and law-abiding

people. Mr. Webster and his “retainers” may spare their breath in

exhorting us to abide by the Union. Such a work, in this commonwealth,

is a work of supererogation. He knows, and they know, that the number

of disunionists in this state can be counted on a man’s fingers

and toes. Whatever influence they exert must flow from their zeal,

their talents, and their private character; for they derive none

from numerical force. Were they all to settle in one of our small

towns, they would be out-voted by its inhabitants. I regard these

ever-repeated appeals made to Massachusetts men and to New England men

to stand by the Union, as not merely obtrusive, but as affrontive and

insulting. Besides, when a man undertakes the mission of going round

the country, preaching honesty, or temperance, or chastity, he provokes

the inquiry whether he is more honest, temperate, or continent than

those whom he exhorts. If the union of these states now is, or has

ever been verging towards a point of danger, it is solely and only

because ambitious men and mercenary men at the north have given it that

direction by recognizing southern threats and bravadoes as realities,

and thus encouraging them. Let the greatest coward see that his threats

are acknowledged as verities, and he will adopt the cheap mode of

threatening instead of the hazardous one of acting. Could the Chinese

have frightened away the British fleet by their battery of wooden

cannon, having the middle of the ends painted black for a muzzle, they

would have been fools to incur the expense of brass or iron. But John

Bull did not care whether the cannon were of wood or of metal, and at

his first fire the Celestials scampered. But here, when a few men in a

few states pointed their wooden guns at us, Mr. Webster, General Cass,

and others, for their own ambitious purposes, cried out that the Union

was in danger. I say, then, if the union of these states ever has been

in any proximity to danger, it was not from menaces uttered by the

south, but from northern indorsement of them. If northern leaders had

dishonored instead of indorsing this spurious paper, it never would

have got into circulation.

We are not only Union-loving men, but, as I said before, we are

law-abiding men. Had this not been so, not all the fleets and armies in

the world could have carried Thomas Sims into bondage. So intimately

blended is the reverence for law with the very soul of our people,

that if you could convince them that a statute has legal force and is

binding upon the conscience, I verily believe our juries would give a

verdict in favor of Shylock, though the pound of flesh which he claimed

were to be carved from their own bosoms. This side of a just cause

for revolution, they will yield submission to all laws enacted by the

government, with one single exception. The exception I mean, embraces

those laws of men which are clearly contrary to the law of God. And I

trust the time is not now, and never will be, when the children of the

Puritans will obey any commandment of human origin if it conflicts with

a divine command, though they have to lie down in lions’ dens or walk

through furnace fires, as the penalty of disobedience.

But with this sentiment of reverence for law is another sentiment,

which is its proper attendant and brother,--I mean a desire and a

determination to know what that is which is called _law_; what it is

that claims this prerogative of controlling the will and challenging

the conscience. It is in this spirit that they have discussed and mean

to discuss the Fugitive Slave law, and to bring it, Protestant fashion,

to the test of individual judgment and conscience.

I have no need to repeat to you the general provisions of this inhuman

enactment. No lover of liberty can read them without having their

atrocious character burned into his mind ineffaceably. You know that

it assumes to dispose of the highest interests of human liberty,--the

liberty of soul as well as the liberty of person;--and you know

that it also assumes to dispose of the most precious interests of

property,--the property that a man has in himself and in all his

capacities of physical enjoyment and suffering as well as his property

in his money or his goods;--without a single one of those safeguards

and protections which the constitution of the country builds up like a

rampart of defence around us all. This enactment, too, is no theoretic

affair; it is no dead letter on the statute book. It is a living

monster, uncaged and turned loose amongst us, to rob and devour at its

will.

Now, I have two objections to this law, which absolve me from all

obligations to execute it, or, in any way or manner, to assist in

executing it. First, I believe it to be contrary to the law of God,

which, God helping me, shall be the rule of my conduct, though I

should scatter political treasons as the autumn wind scatters leaves.

In his dread description of the judgment day, Jesus Christ makes the

distinction between saints and sinners to turn upon the fact, whether

they have fed the hungry, clothed the naked, and visited those who were

sick and in prison. And who so hungry as those who do not own, and

cannot own a morsel of bread? Who so naked as those who do not own, and

cannot own a shred of a garment to protect them from cold, or from the

lascivious eye? And what confinement was ever so hopeless as southern

slavery, what prison was ever so deep as that prison-house which holds

three millions of our fellow-beings within its melancholy walls,--them

and their posterity forever? He that refuses the common acts of

hospitality to these victims, when fleeing from their bondage, denies

his Lord and Master. He that refuses them, disobeys every precept of

the Savior, and has no more right to call himself a Christian, than

has the Fejee islander, when he rises from his cannibal banquet. He is

the Levite who passes by on the other side.

And next, I hold this law to be contrary to the constitution of the

United States, and therefore of no binding force upon my conscience or

my conduct. I do not mean to say by this that I shall make forcible

opposition to it. I take the Quaker ground upon this subject; I will

not assist to execute it, though I shall suffer it to execute itself on

me.

The constitutionality of this law has been extensively discussed.

But there is this broad difference between the arguments of those

who affirm and those who deny that it is constitutional. Those who

deny it, argue the question upon its merits, upon principle, upon

those legal relations and analogies that so nobly characterize the

English law on the subject of human liberty. But those who affirm the

constitutionality of the law, base their argument upon technicalities

and upon precedents, and they cannot sustain themselves for a moment

on any other ground. They found themselves, in the first place, upon

the statutory precedent of 1793, which was an act passed with very

little deliberation, as its history shows, and passed, too, when it

was expected on all hands that slavery would soon die out. In the next

place, they rely upon the judicial precedent of Prigg’s case, which was

made by a bench of slaveholding judges, and some of the points which

the court professed to decide did not arise in the case.

Now the statutory precedent covers only a part of the case; for some

of the most hateful features of the law of 1850 are not to be found

in the law of 1793; and the supreme court has never passed upon the

law of 1850 at all. So two points are clear in the outset, that the

champions of the law cannot get along without the precedents, and

the precedents, in several most important particulars, fail them

altogether.[21]

This question has lately been discussed in our own vicinity. The

liberty of a resident of Massachusetts,--a man every way entitled to a

jury trial by our constitution and laws, as much as you or I,--has been

sacrificed by a United States commissioner in the city of Boston.[22]

He has decided in favor of the law. You would naturally suppose that,

in order to shelter himself from the odium of such a decision, he would

put all personal and all collateral resources into requisition to make

the case as plausible as ingenuity can make it. It is said, too, that

Mr. Webster and Mr. Webster’s friends, and the commissioner’s friends

have contributed of their strength to help the debility of the case.

While the cause was pending before him, one of the points involved

in it was brought before the supreme court of Massachusetts, and

also before the circuit court of the United States. The commissioner

adjourned the case over after all the arguments of counsel were

in. He thereby gave himself an opportunity for preparation and for

consultation. I am taking no exception to all this. I am glad it was

done. I suppose we now have the breadth and length and strength of what

can be alleged in favor of the law. I never feel so confident of my

conclusions as when strong men have taken the opposite side, and have

failed to sustain it.

Now, to this decision of the commissioner, made under such incitements,

and with such opportunities, I propose to invite your attention.

The discussion may be dry, but it will not be uninteresting; for it

involves matters as important as the liberty of the body and the

liberty of the will, and the liberty and life of the human soul.

It may be said that these are legal and constitutional questions,

and, therefore, that unprofessional men cannot understand them. But

most, if not all the points which I shall bring to your attention,

are matters of intuition; questions wholly within the jurisdiction

of plain common sense, and such, therefore, as can be decided by you

as well as by lawyers or judges. And if I can convince you of the

inconclusiveness of some parts of this decision, of the legal Jesuitism

of other parts, and of the self-contradiction that pervades the whole,

you will not hesitate to set it aside, not as null and void merely, but

as discreditable to the profession of the law, and dishonorable to the

State of Massachusetts.

The first point which the commissioner discusses is, whether in

seizing, by his warrant, a man actually free, in deciding, by his

judgment, the exact question, whether that man were a slave, and in

sending him, by his certificate, where the lash and the law of slavery

apply to his body and his spirit, he were exercising “_judicial

power_,” as conferred by the constitution of the United States upon

such courts as _Congress_ should establish. He at first decides that

he does _not_ exercise such power. This was well; for he knows that

he was never appointed, nor commissioned, nor sworn, nor is paid,

nor removable from office for mal-conduct, as is prescribed by the

constitution in the case of judges. Badly heroic as he was, _in fact_,

in exercising jurisdiction over a human being, and delivering him

over into hopeless and irremediable bondage, he was not mad enough to

arrogate, _in terms_, the prerogative of “_judicial power_.”

But what says his superior, the attorney-general of the United States?

In an elaborate opinion, given by order of the President of the United

States,--an opinion which, as I suppose, passed under the supervision

of the whole cabinet, and therefore may be presumed to have the

authority of Mr. Webster and the other constitutional advisers of

the President, and which certainly had the sanction of the President

himself, for he acted upon it,--in this opinion the attorney-general

says,--

“These officers, [the commissioners,] and each of them, have _judicial

power_, and jurisdiction to hear, examine, and decide the case.”

“The certificate to be granted to the owner is to be regarded as

the act and _judgment_ of a _judicial tribunal_, having competent

_jurisdiction_.”

“Congress has constituted _a tribunal_, with _exclusive jurisdiction_

to determine summarily, and without appeal, who are fugitives from

service.”

“The _judgment_ of the _tribunal_, created by this act, is conclusive

upon all _tribunals_.”

Now, which is right, the attorney-general, with the President and

his cabinet as indorsers, or Mr. Commissioner Curtis? I submit to

you that the former were clearly right, so far as this,--that when

the constitution declares that “no person shall be deprived of life,

liberty, or property, without due process of law,” (which imports a

trial by jury,) then neither Adam Gibson, nor Thomas Sims, nor any

other alleged fugitive can be so deprived, without trial by jury,

_and the judgment or sentence of the “judicial power” thereupon_. The

following position has never been answered, and I think never can be,

namely, that if a resident of Massachusetts can be deprived of his

“liberty and property,” without a trial by jury and a judgment of a

_court_, then he may be deprived of his life also; for “life, liberty,

and property” are secured in the same section, in the same sentence,

and by the same safeguard.

The attorney-general held that, as the power exercised by the

commissioner was a “judicial power,” it deprived the party of all

benefit from the _habeas corpus_. And there was some plausibility in

this, though, I think, no soundness. But our defenders of the law

hold that this sending of a man into bondage is not a part of the

“judicial power,” and yet that it deprives him of all benefit of the

_habeas corpus_. That is, they hold that a man may be deprived of his

liberty and property, (and of course of his life,) _by a ministerial

proceeding_, not having its origin in any court, and not to be

prosecuted to final judgment in any court, and yet that all the courts

in the land, competent to furnish relief in any other case, can afford

none in this. If this be true, if a proceeding, held and acknowledged

by the officer who initiates and conducts it to be a ministerial

proceeding, not originated by a court, and never to be carried before

a court, does thus take away the trial by jury, and the security of

having one’s liberty and property adjudicated upon by a “court,” and

renders the writ of _habeas corpus_ an empty form, then, indeed, we may

bid “farewell, a long farewell” to all our liberties. An unprincipled

majority of Congress has only to pass a law that any man may be

imprisoned or hanged on an executive warrant, and that the hireling

marshal or commissioner shall suffer no “molestation by any process

issued by any court, judge, magistrate, or other person whomsoever,”

and despotic power will be enthroned here as effectually as it ever was

in England in the bloody days of the Stuarts. Jeffries was at least a

judge, though he acted like a commissioner.

Who could have imagined, eight months ago, that a _ministerial_

proceeding could put a citizen beyond remedy or reach of our _courts_?

I now come to a position in the commissioner’s argument which is not

only transparently fallacious, but is contradicted by himself, in the

same opinion, again and again. I shall offer a series of objections to

it.

The point was pressed upon him by counsel that he was exercising

“judicial power.” To maintain this, a passage was quoted from

Prigg’s case, in which the court say, “A claim made by the owner out

of possession for the delivery of a slave ... constitutes, in the

strictest sense, a controversy between the parties, and a case arising

under the constitution of the United States, within the express

delegation of judicial power, given by that instrument.” Can any thing

be more explicit and conclusive, to prove that the commissioner was

then presuming to exercise a part of the “judicial power” conferred by

Congress exclusively upon courts? And how does he answer it? In this

way, and in this way only. He says the court decide two points:--

First,--That a claim for a fugitive slave is a case arising under the

constitution of the United States, and so within the grant of “judicial

power” as given by the constitution; and

Second,--“That being such a case, belonging to the judicial power of

the Union, it was for Congress to regulate and prescribe the remedy,

the form of proceedings, and the mode and extent in which the judicial

power of the Union should be called into activity.”

He then declares his full admission of _both_ these propositions. And

how does he answer the _first_ one, which, at a blow, unseats him from

his usurped bench? He says, “The counsel for the prisoner have insisted

most strenuously on the first of these positions, but have said nothing

with regard to the second.” And what need had the counsel to say any

thing about the second, _the first being admitted_? The supreme court

had said, and he acknowledged it, that every case like the one then

before him was a “case arising under the constitution of the United

States, within the express delegation of judicial power given by that

instrument.” This was equivalent to saying that it was a case which

could not be adjudicated upon by a commissioner, because a commissioner

is not a judge,--is no court nor part of a court. The plain statement

of the commissioner’s language is this: The supreme court declare that

I have no jurisdiction in this case; but because the counsel said

nothing about another point to be found in the opinion of the court,

therefore I will take jurisdiction.

But again; this reply of the commissioner, that the counsel said

nothing about the second point, (when he had acknowledged the validity

of the first, which was fatal,) is not merely an evasion; it is founded

upon a false meaning attributed by him to the second point. He says

the court held that it was “for Congress to regulate and prescribe

the remedy, the form of proceedings, and the mode and extent in which

the judicial power of the Union should be called into activity.”

Suppose it was for Congress to do this. Might they not transcend their

power when doing it? and does not his admission of the first point

prove that they have transcended their power?--the very point then in

question. The two things cannot stand together. If the trial of the

issue, “fugitive slave or not,” be, “in the strictest sense,” “within

the express delegation of judicial power given” by the constitution,

then this ministerial commissioner cannot exercise it, and Congress

cannot empower him to exercise it. Besides, the decision of the court

was made in 1842. The law, whose constitutionality they had then

under discussion, was passed in 1850. Did the court in ’42 declare,

or could they declare, that any law _thereafter_ passed by Congress

on this subject should be held constitutional? Did their decision act

prospectively, and adjudge a law to be constitutional, which was to be

passed eight years afterwards? So far from this, the points then under

discussion,--namely, the power of a commissioner to adjudge a case more

important than life or death, and the obligation of a commissioner to

hear _ex parte_ evidence, and to be concluded by it when heard,--these

questions did not come before the supreme court in ’42, and have never

been before the supreme court at all. But because that court had said,

years before, that it belongs to Congress to prescribe the mode of

recovering fugitive slaves, _therefore_, says the commissioner, if

Congress should vest this power in commissioners, (and in slave traders

or pirates just as well,) it would be valid. And because the counsel

did not answer this point, the commissioner decides an admitted point,

conclusive in their favor, against them.

But this is not all. After declaring, in the first part of the opinion,

his full conviction that the delivery of an alleged fugitive comes

within “the express delegation of judicial power,” he uses, farther on,

the following language: “It would seem,” says he, “that it only remains

to inquire whether the act of 1850 authorizes or requires any thing

more than a summary ministerial proceeding in aid of the right secured

by the constitution, namely, the right of removal.” And he holds that

it does not. The act which, in the first part of the opinion, was

acknowledged to belong, “in the strictest sense,” to the “judicial

power,” has now ceased to be “_any thing more_ than a summary

ministerial proceeding.”

And again he says, “I have endeavored, in the foregoing discussion,

to show that this is a summary ministerial proceeding,” &c. “If

this be so, _and I can entertain no doubt that it is_,” &c. This

sudden transmigration from a judge to an executioner, from one who

acknowledged that the delivery of an alleged fugitive is an act of

“judicial power,” to one who holds that it is NOT “_any thing more_

than a summary ministerial proceeding,” may suit a disciple of

Pythagoras, or the priests of the Hindoo religion, but it ill becomes

an expounder of American jurisprudence.

I proceed to another point in the commissioner’s decision, namely, the

nature and authority of “judicial power;” and when I have discussed it,

I shall submit to your good sense whether I do him any injustice in

saying that it is most perspicuously fallacious and lucidly absurd.

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