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.