is a certain class of inquiries, [powers?] judicial in their nature,
but which are confided to officers not constituting a part of the
judiciary, strictly so called.” (I do not like this substitution of
the word “inquiries” for “powers.” If any thing under heaven should
be called a _power_, the prerogative of sending a human being,
presumptively free, into bondage, is surely one.) He then instances
certain officers in Great Britain, who, though not judges, perform,
as he says, certain judicial functions. A brief remark will suffice
for this. Great Britain, having no written constitution, the current
of its legislative enactments and its judicial decisions makes its
constitution. If, then, it has been the prevailing practice of that
government to confer any given description of powers upon any given
class of officers, then that is what the British constitution allows
and approves.
But we have a written constitution, and therefore are not to tolerate
a law, (as in the case of this Fugitive Slave law,) which is repugnant
to its fundamental provisions. By this constitution, all legislative
powers therein granted are vested in Congress; executive power in
a President, and judicial power in the courts. The constitution of
Massachusetts is equally explicit. It says, “In the government of
this commonwealth the legislative department shall never exercise the
executive and judicial powers, or either of them; the executive shall
never exercise the legislative and judicial powers, or either of them;
the judicial shall never exercise the legislative and executive powers,
or either of them; to the end it may be a government of laws, and not
of men.”
In both these constitutions, the three functions of government, namely,
to legislate, to adjudicate, and to execute, are expressly recognized;
and the _whole_ of their distinctive powers are lodged in separate
departments. No mention is made of any hybrid or mongrel class, half
judicial and half executive, or half ministerial and half judicial,
or compounded of aliquot parts of each. Such an officer, under either
constitution, would be a monster; he would hold the same relation to
their legitimate functionaries that Caliban does to the human race;
and, if created for executing the Fugitive Slave law, that half devil
and half beast would be the fitting prototype.
The commissioner professes to have found a class of cases, both under
our state and national constitutions, where powers, “judicial in
their nature, and special in their purpose, may be confided to the
determination of officers who are not judges.” On this point he has
expended himself. Here lay the pressure and travail of his case. Seeing
that, in deciding the great issue before him, “slave or free,” he was
exercising judicial power, and in ordering an armed force to convoy
the victim to his house of bondage he was exercising ministerial or
executive power, (thus blending the functions which both constitutions
have separated,) the commissioner felt that he must find some analogy
or some precedent to cover up this obvious violation of all principle,
or his argument was in ruins. It is in ruins; for he has found no such
precedent, and cannot find any.
The instances he cites from Massachusetts are,--1. Sheriffs, who may
preside over juries when assessing damages for laying out highways, and
may decide such questions of law as arise on the trial; 2. Auditors,
who may examine vouchers and state accounts between parties, and make
report thereof to the court; 3. Commissioners of insolvency, appointed
to distribute insolvent estates; and, 4. County commissioners, who lay
out highways.
Now, nothing can be clearer than that, in no one of these cases does
the officer named exercise “judicial power.” Indisputably, universally,
and necessarily, by force of the phrase itself, the term “judicial
power” embraces the idea of a _power_ whose decision can be enforced
_in invitum_; that is, against an unwilling, contesting, resisting
party. The sublime power of a court becomes nothingness, and is
ridiculous, if its decrees cannot be executed to the very death of
the party against whom they are made. For this purpose, they are
backed by all the civil power of the state; and should this prove
insufficient, they are backed by all the military power of the state;
and, even beyond this, by the whole military and naval power of the
United States. Without this, judges are but puppets, or no better than
“men in buckram.” “Judicial power” does not consist in a sheriff’s
presiding over a jury, nor in an auditor’s casting up accounts, nor
in a commissioner’s ciphering out the dividends of an insolvent’s
estate, nor in county commissioners’ laying out roads; but it consists
in entering up a judgment which has the armories at Springfield and
Harper’s Ferry, which has the standing army and militia of the United
States, which has fifty line-of-battle ships, which has the treasury
of the nation, to back it, and to visit with death one man, a thousand
men, or a hundred thousand men, if need be, who shall confront it with
resistance.
Look, fellow-citizens, at this wretched sophistry. The sheriff
must make return of the verdict of the jury to the court of common
pleas,--_which is a_ COURT,--and if either party suggests good grounds
of dissatisfaction, the whole proceeding is a nullity, and the
investigation must be made again; and again and again, and ten times
again, until every act and letter of it become unexceptionable. The
auditor must make his report to the court that appointed him, and if
the court see cause, they set aside both it and him. The acts of the
commissioners of insolvency derive all their validity from the consent
of the parties, or from the judgment of a court, which substitutes the
force of law for consent. And no act of the county commissioners, in
taking a man’s land, is worth the paper it is written on, until the
verdict of the jury is returned to the _court_ of common pleas, and
there formally accepted and recorded. Nay, every intelligent farmer in
the country knows the fact, that though the commissioners have laid out
a new road, or ordered an old one to be shut up, still, if a party,
feeling himself aggrieved, demands a jury, the former cannot be worked,
nor the latter closed, until the _court_ of common pleas shall have
passed upon the proceeding and ratified it.[23]
If, however, in all the above cases, the parties in interest _consent_
to the acts of sheriff, auditor, or commissioner, then those acts
become binding, by virtue of such consent. The party consenting
is afterwards estopped from questioning them. But they derive no
authority from any “judicial power” vested in the officers performing
them. We have a case more exactly in point, and better illustrating
the principle, in the fourth section of the ninety-seventh chapter
of our Revised Statutes, where it is provided, that “in actions upon
promissory notes and other contracts, where the amount due appears to
be undisputed, the debt or damages may be assessed and ascertained by
the clerk, either under a general order of the court, or by a special
reference of the case to him; and the judgment, in either case, shall
be entered in the same form as if it had been awarded by the court, on
an assessment or computation made by themselves.” Yet who will pretend
that this act of the clerk, which is performed only where there is no
dispute between the parties, emanates from any “judicial power” in that
officer?
The instances cited under the United States constitution have, if
possible, still less plausibility. The commissioners appointed by the
courts can initiate certain proceedings, by holding parties to trial,
&c., but this function is no more _judicial_ than that of the grand
jury in finding an indictment. It is a preliminary to a judicial act,
but not such an act. The commissioners are not even required to be
sworn, and, in many instances, it is known they are not sworn.
So of the case of which so much is attempted to be made,--that of the
commissioner of patents. Any party feeling himself aggrieved by any of
his decisions can appeal directly to the courts of the United States
for redress.
Compare all this with analogous instances in the legislative department
of government. The legislatures of most of the states have created
commissions to revise their codes of statute law. Massachusetts has
had several such. Our revised statutes are a monument of the labor
of one of these commissions. But were they legislators? _Was their
proposed code of any validity until enacted by the Senate and House
of Representatives?_ Just as much as the acts of sheriff, auditor, or
commissioners of the different kinds, were acts of judicial power,
and no more. Are the selectmen of our towns legislators, because they
decide, in the first instance, who are elected as members of our House
of Representatives? Are our governor and council legislators, in both
the state and national governments, because, on an examination of
votes transmitted to them by the selectmen, they issue certificates of
election to our state senators and to the members of Congress elect? Do
they exercise any part of that power which makes “each house the judge
of the elections, returns, and qualification of its own members”? Just
as much, I reply, as sheriff, auditor, commissioner, or clerk, does
of “judicial power.” They perform acts preliminary or antecedent to
legislation, but no legislative act; just as the above-named classes of
officers perform acts preliminary or antecedent to judicial decisions,
but never, in any case, the authoritative and compulsory judicial act
itself.
The strength, or rather, the weakness, of the commissioner’s argument,
on this point, consists in the obtrusive, projecting, self-shouting
fallacy of using the exact, technical, constitutional phrase, “judicial
power,” as synonymous with the popular expression, “_a judicious
act_,” or “_the exercise of judgment_.” Officers of all kinds exercise
“judicial power,” in this broad and popular sense of the phrase; that
is, they perform acts requiring good judgment. Umpires, arbitrators,
and referees perform acts precisely like those of judges, but they
cannot put the whole physical strength of the government in motion to
enforce them. So sheriffs decide upon the identity of the party named
in their precepts; postmasters, to whom they shall deliver letters, and
what postage they shall demand; custom-house officers, upon the nature
and value of dutiable goods; assessors, in levying taxes; parents and
teachers, on matters of discipline, &c., &c. In a popular sense, they
may all be said to exercise judicial power; but no particle of that
power which, by the fundamental law of our government, is vested in the
“courts.” Their acts are all examinable by the courts. They cannot set
the arm of the government in motion to execute their judgments. Indeed,
the whole argument of the commissioner on this point is but a play upon
words. It is only a trick of verbal legerdemain. The premises he starts
with are unknown to the constitution, and the conclusion he comes to is
abhorrent to humanity.
Does not every body see that, in order to make the cases parallel, in
order to obtain any legitimate ground of comparison between them, Sims
should have had the same power of appealing from the commissioner’s
decision, to a court, which power of appeal belongs _of right_ to
a party who feels aggrieved by the act of sheriff, auditor, or
commissioner; and that the certificate should bind him only by his
voluntary assent?
But there is another point in the commissioner’s opinion which is
worthy to be companion to this. I proceed to consider it.
He repeats, and keeps repeating, that his decision, dooming Sims to
all the horrors of bondage, and putting him under the control of a
man who claims title to his body and his soul, to be carried into a
jurisdiction where such titles are acknowledged, is not “FINAL.” It
is not _final_, he says, because if Sims be free, he may extort that
freedom from the laws of Georgia which has been denied to him by the
laws of Massachusetts; that is, if the judgment which the commissioner
is giving against a free man, in a free state, is a false judgment,
he may go to a slave state to obtain redress,--which is ten thousand
times worse than if a jury, in a capital case, should say, We may find
this prisoner guilty; for if he be wrongfully hanged, God will make him
amends.
Besides the inhumanity of this position, it contains a fallacy which is
twin-brother to the one just considered. The judicial word, “_final_,”
has a legal, technical, and certain meaning. In the courts, and in the
law books, it means the last judgment in a judicial proceeding. It
means that judgment from which a party cannot appeal, though he may
ever so much desire it; or it means that judgment, after which, however
dissatisfied the party may be, he cannot have his cause retried or
reheard by a court, _but is compelled to submit_.
“Final judgments,” says Blackstone, “are such as at once put an
end to the action.” This is a precise description of the judgment
rendered by the commissioner against Sims. That victim resisted by
prayers and tears, by the subduing eloquence of his counsel, and by
their irresistible logic, which the commissioner has never yet begun
to answer. But the self-constituted judge was inexorable. Though he
knew that, according to the terms of the Fugitive Law, there was no
escape from his decision; though he knew that his certificate was to
protect the man-hunter from all “molestation by any process issued by
any court, judge, magistrate, or other person whomsoever,” yet, like
Pilate, he washes his hands and says, “I am innocent of this man’s
blood, see ye to it;” for my decision is not “final.” And why? Because,
in another jurisdiction, in another suit, where the plaintiff is to
be defendant, and the defendant plaintiff, or perhaps against another
party; in a place, too, where all the common-law presumptions in favor
of freedom are reversed; where the law is different, and the rules of
evidence are different; and where the respondent himself is reduced to
the condition of a chattel and a brute, a decision, at some indefinite
future period, may be had that the man, whom the commissioner now
declares to be a slave, is free, and has always been so. Because of
this future and contingent event, because of this almost impossible
possibility, the commissioner’s decision is not _final_. I deny this.
The decision is _final_, because, as Blackstone says, it “at once puts
an end to the action.” But let us test the question, not only by its
legal definition, but by its actual effects. It decides that Sims is
a slave. It decides that he owes service to James Potter. It decides
that Potter and his heirs and assigns forever are the lawful owners
of Sims and the heirs of his bondage forever; and when Sims and his
posterity shall be scourged, torn, flayed, mutilated, starved, the
only consolation which the commissioner has for him and them is, Shall
the clay say to the _Potter_ that fashioneth it, What makest thou? It
not only decides that Sims is a slave, and that he shall be sent to
Georgia, but it sends _familiars_, like those which once disgraced even
the purlieus of the Inquisition, to see that the devilish deed is done.
The whole argument of the commissioner, that this act of his is
not _final_, is founded on a quibble,--on the use of the legal
word “final,” as though it were synonymous with the popular word
_eternal_ or _perpetual_. The slavery of Sims may not be _eternal_ or
_perpetual_; because, by some miracle of God, or otherwise, he may
escape. But in a technical and juridical sense the decision of the
commissioner is _final_; and he might as well doom a man to be hurled
from the Tarpeian rock, and say that the act is not final, because he
only commits the victim to the laws of gravitation, as he has committed
Sims to the laws of Georgia.
If by any possibility this doctrine, that the decision is not _final_,
could be for a moment sustained, then I will submit a case with which
to compare it.
The constitution says, “No state shall pass any law impairing the
obligation of contracts.” Here we have a constitutional basis,--the
same as for the reclamation of fugitive slaves. Some states have
passed laws impairing the obligation of contracts, as the stop-laws
of Kentucky, and so forth. Suppose a Massachusetts creditor to claim
to have a Kentucky debtor, whose contract has been so impaired. Could
Congress, in order to give efficacy to this constitutional provision,
authorize this pretended creditor to go to Kentucky, seize enough of
the alleged debtor’s property to satisfy the alleged debt, and carry
it home, or have it ordered home by a magistrate, under some “summary”
process, which, on its face, excludes the trial by jury; and thereby
debar the supposed defendant of all right under that provision of the
constitution which gives a jury trial when the value in controversy
exceeds twenty dollars? And could the Kentucky magistrate, in the
supposed case, deny the jury trial on the ground that the proceeding
before him was not “final,” because the defendant might follow the
plaintiff to Massachusetts, and there institute an action of replevin,
trespass, or trover, to try, before a jury of the country, the right of
the former plaintiff to the property he had seized?
The commissioner says much in different places, with the apparent hope
of showing that the proceeding before him was only for what he calls a
“limited and special purpose,” namely, “_removal_.”
I confess myself unable to understand why the certificate of the
commissioner is any more restricted to a limited and special purpose
than any judicial act, sentence, or execution, of any court whatever.
The commissioner declares a _prima facie_ freeman to be a slave. He
declares that James Potter owns Thomas Sims, and the posterity in his
loins forever; or that Thomas Sims and his posterity forever, owe
service to James Potter and his heirs and assigns forever. Does this
“_forever_” limit the meaning of the certificate, as to time? If so,
then a _general_ or _unlimited_ award or execution, against Sims, as
contradistinguished from this _limited_ and _special_ one, must extend
and run into the next world. When our courts decide that one man owes
another man money, they award execution against his property, with
certain humane exemptions as to clothes, furniture, provisions, school
books, Bible, &c. But when this commissioner decided that Sims owed
Potter service, he awarded a certificate against the adjudged debtor,
which made no exemption whatever; but included property, clothes,
books, skin, flesh, heart, brain, soul, and all that was in him, or of
him, with all appurtenances and appendages, present emblements, and
future increase. Yet, according to the commissioner, the first judgment
is a common or general one; the last “special and limited.” Under
our old laws, (and under the laws of some states yet,) courts could
sentence offenders to the barbarous punishment of flogging. But they
were and are bound to specify the number of lashes. This is general.
The commissioner delivers over a slave to be flogged by his master,
_ad libitum_, and _in perpetuum_, to be flogged in his own person, and
to be flogged in the persons of his children, and their posterity, _in
secula seculorum_. The defined flogging of thirty-nine, or such other
number of lashes as can be computed, the commissioner calls general or
indefinite. But the incomputable number of lashes; the vast, unknown,
algebraic quantity; the infinite series; that which Newton with all his
mathematics could not compass, nor Rosse with his telescope see the end
of,--that is “special and limited.” The taking of a limited amount
of a man’s property, carefully set down in dollars and cents, both in
the text and in the margin of the execution, the commissioner calls
a general purpose. But the robbing of a man, not only of all he has
earned, but of all his capabilities of earning as long as he breathes,
with full authority to do the same thing to his posterity to the latest
generation, this is “special and limited.” To sentence a man to be
hanged by the neck till he be dead, though with privilege of priest,
prayer book, and Bible,--this, too, is general and proper; though in
Massachusetts it can be done only by a majority of the judges of the
supreme court. But to send a man to be worked to death in five years on
a sugar plantation, where his being taught to read the gospel of Jesus
Christ is a felony,--this is “special and limited,” and so may be done
by any hireling commissioner who will do what Judas did for one third
part of his silver pieces.
Fellow-citizens, I submit to any man, clerical, legal, or lay, who
is capable of appreciating moral distinctions, whether this whole
doctrine, about delivering a man up as a slave, and putting him
bodily into the hands of the claimant, and thrusting him into slave
jurisdiction, under the pretext that it is done only for _the special
and limited purpose of removal_, be not atrocious. It is more like a
forgery than an argument. Assumed learning and logic never practised
a greater imposition upon themselves, nor attempted a greater one
upon others, than when they fabricated this notion, that adjudging
a man to be a slave, stripping him of his _liberam legem_, that
is, of all his rights and immunities as a citizen, and delivering
him into actual bondage, is “for a special and limited purpose of
removal,”--only to give him a voyage, or a pleasure excursion of a few
hundred miles,--_out,--but not back_. When the successor of St. Peter,
claiming to hold the keys of heaven, and to have death and hell for
his ministers, excommunicated whole sects and peoples, and delivered
them over to the great soul-hunter, and sent his _familiars_ with them
to see that the “claimant” suffered no “molestation” while conveying
them to the bottomless pit, _he_ might as well have said that he did
it only for a “special and limited purpose.” It was not damnation, it
was only “removal.” And do you suppose the devil, could he have got
possession of those outcast souls, would have cared any more under what
pretence the great pontiff commissioner made the delivery, than does
the southern slaveholder, when he gets possession of a man of whom he
can make a slave?
This fallacy about the “special and limited purpose of removal” did
not originate with Mr. Commissioner Curtis. I exculpate him from that
guilt. He only adopted it and gave it a “bad eminence” by making it, in
part, the basis of his decision. But henceforth let the people brand
it. Let them classify it and denounce it, and detest it, as belonging
to that impious and blasphemous kind of arguments by which our first
parents were beguiled, when Satan told them that, though they sinned
against God, they should not die; or by which Mr. Webster cajoled
and cozened so many honest men, when he assured them, that though
they should violate the moral law, by opening all the territories to
slavery, yet some physical law of geography or the weather would avert
the penalties.