commissioner resorts to that ten times exploded position, that there is
an analogy between fugitives from justice and fugitives from service.
Where could he find a bandage of prejudice thick enough to blind him
to the distinction, that the condition of delivering up the former is
that he be _charged_ with crime, while the condition of delivering up
the latter is that he be _held_ to labor, and that he _owes_ service?
How can it be said that a man _owes_ service, until the _fact_ of
the _indebtedness_ be proved? Such reasonable suspicion of guilt as
justifies a grand jury in finding a bill of indictment is sufficient
in the one case, but such positive proof as would require the court
to enter up judgment and award execution is absolutely necessary in
the other. The government demanding a fugitive from justice seeks
possession of him for a trial, _before a court and jury_, of the
question of _criminality_; but the claimant of an alleged fugitive from
service seeks possession of him to avoid a trial, _before a court and
jury_, of the question of _freedom_. The constitution requires that
every person accused of crime shall be tried in the state and district
where the crime shall be charged to have been committed; but it makes
no such provision in regard to the alleged fugitive from service; and
this injunction in the one case, and omission in the other, create the
irresistible inference, that there is a difference between them, and
that the alleged fugitive from service, according to all the analogies
of the common law, is to be tried where he is found.
But there is one distinction which is broad enough and luminous
enough to make a blind man see it. An alleged fugitive from justice
is not adjudged to be a criminal previous to delivery, nor is he made
a criminal, in the eye of the law, by the act of delivery. But the
alleged fugitive from service is adjudged a slave, and made a slave by
the certificate of the commissioner. The state receiving a fugitive
from justice does not proceed forthwith to punish him. But the receiver
of an alleged fugitive from service _owns_ him, and may proceed to
control him, and beat him, and rob him, and starve him, on the very
instant that the commissioner puts the certificate into his hands. If
any one cannot see this distinction, no act of the moral oculist can
give him sight.
The papers inform us that when Sims was landed in Savannah, he was
taken to jail and received the “_usual reprimand_,” which, as every
body knows, is a flayed and blood-streaming back. By whose certificate
was the nine-thonged cat laid on? Had he been a murderer or a pirate,
would excoriation have been the first act of welcome on his arrival?
No! Murderers and pirates would have had a jury. The law is beneficent
to them; it saves its terrors for the slave. A man who will not _see_
such a distinction as this, would excite no pity should he be made to
_feel_ it.
In treating this topic, the commissioner makes one assertion that
seems insane. He says that, to authorize the delivery of a fugitive
from justice, in order to his removal, “_it must be proved that he has
committed a crime_.” Such a declaration was never made before, and I
do not believe it will be ever made again. You could not find a lawyer
south of Mason and Dixon’s who would venture to say this. Every body
knows that the supposed criminal needs only _to be charged_ with crime.
It is the alleged slave who must be proved to _be held_ to service
before he can be constitutionally surrendered. But as though this was
not absurd enough, the commissioner goes on to say, that though the
alleged fugitive from justice must be proved, in the place where he is
taken, “to have committed a crime,” yet, after his removal, he must
be proved again to have committed it. How can a man be proved, in any
legal way, to have committed a crime, without being confronted with the
witnesses against him? Why, after having been so proved, is he put upon
trial again?
As to all the commissioner says in denial of the right of trial by
jury, I shall make but one or two remarks. I have argued that question
elsewhere; and, until I see some answer to that argument, I have no
occasion for repetition or corroboration of it. After using the word
“_person_” some twenty times, to signify the President of the United
States, electors, senators, representatives, United States officers,
Indians, Africans, &c., the constitution declares that “no _person_
shall be deprived of life, liberty, or property, without due process
of law;”--this “due process of law” meaning trial by jury. This is one
fact. Adam Gibson, Henry Long, Thomas Sims, and many others, some of
them now acknowledged on all hands to have been free, have been sent
into slavery without this trial. This is another fact. Now put these
two facts together. No man shall be deprived of liberty or property,
except by the jury trial. These men have been deprived of liberty and
property without the jury trial. These are the two ends. Now fill up
the space between them with what you please, and call it argument, law,
gospel, or what you will, every body must see that it is nothing, and
can be nothing but Mephistophiles’ jugglery. I dismiss this point with
a single proposition: In Massachusetts, we know no legal distinction
founded on color. Through all the gradations, from the person who
has the preternatural whiteness of an Albino to one whom you can see
in the darkest midnight, because he is so solid black,--all, _all_,
under our constitution and laws, are alike freemen, or alike slaves.
Notwithstanding the commissioner’s decision makes us all slaves, yet I
maintain that, in the eye of the law, we are all free. How then can any
one of us freemen be robbed of liberty and property, and turned into a
slave, but by freeman’s proof,--that is, trial by jury? I acknowledge
that after we have been proved to be slaves by freeman’s proof, then
all the unutterable consequences of slavery follow, of course; just as
when a man has been proved to be a murderer, the consequences of murder
follow. But UNTIL, mark this, =UNTIL= a man has been proved to be a
slave by freeman’s proof, he remains legally free. And a magistrate
who takes jurisdiction of a proceeding by which a man may be deprived
of liberty or property, without freeman’s proof, prejudges his victim,
when he allows the first witness to be called, or the first paper to
be read; and he might just as well do it, in a case of “life,” as in a
case of “liberty and property.”
The next position of the commissioner which I shall notice relates to
the right of Congress to make use of state courts to execute United
States laws.
Now we have the express authority of the supreme court of the United
States for saying that “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 Wheaton,
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.
But the commissioner refers to a passage in Prigg’s case, in which it
is said that “while a difference of opinion exists ... whether state
magistrates are bound to act under it, [a law of Congress,] none is
entertained by the court, that state magistrates may, if they choose,
exercise the authority, unless prohibited by state legislation.”
Waiving all exceptions to this doctrine, the utmost that can be made
of it is this: that state magistrates may execute a law of Congress,
unless forbidden by a law of their state; but when so forbidden, they
cannot; and Congress can neither compel them to do so, nor annul a
prohibitory law of the state, by giving validity to the act of the
magistrate, performed in violation of the state law. Now mark the _non
sequitur_ of the commissioner’s logic. See how his premises belong to
one subject, and his conclusion to another. Because a _Massachusetts_
magistrate may execute a law of Congress, unless the Massachusetts
legislature forbid him, but if so forbidden he can no longer do it,
therefore, when the Massachusetts legislature has so forbidden him,
Congress may send the magistrates of Georgia, or of any other state,
into Massachusetts, to do what our own state had forbidden our own
magistrates to do. I say “_send the magistrates of Georgia here_;”
because Congress may just as well, and even better for us, authorize
the magistrates of any state in the Union to come here, set up courts,
and pass sentences which shall convey our citizens into bondage, as to
stay at home and make records, which, when brought here, shall have the
same effect. This, then, is the law-logic of the commissioner: Because
a Massachusetts magistrate may aid in reclaiming an alleged fugitive
on Massachusetts ground, unless forbidden by his state, yet, if so
forbidden, then the legislatures of fifteen slave states may send their
magistrates, or the acts of their magistrates here, to do the same
thing. The state might prevent its own magistrates from aiding in this
nefarious work, but this would be of no avail, for any one, or all, of
fifteen sets of slave state magistrates may come and do the forbidden
act.
Pierpont Edwards once said of a clergyman, that if his text had a
contagious disease, the sermon would not catch it; and a blind man,
being asked to describe his conception of color, compared it to a clap
of thunder. But all their ideas were coherent and homogeneous compared
with those premises and conclusions of the commissioner, by which the
State Rights’ doctrine is expounded to mean, the right of one _state_
to send its magistrates into another state, to do what the latter has
_lawfully_ prohibited its own magistrates from doing. South Carolina
never claimed so much as this.
Under the first head, where it had been urged by counsel, that a
freeman might have no opportunity to prove his freedom in the state
from which he was alleged to have fled, because the claimant was under
no obligation to carry him to that state, but might send him to the
Cuban or Brazilian market, the commissioner shuts his eyes to these
very probable consequences, and refuses to consider them; but under
the fifth head, where an argument in favor of the slaveholder could be
derived from consequences, he not only argues elaborately from them,
but bases his judgment upon them.
There are two remarks thrown out in the course of the commissioner’s
opinion so shocking to every feeling of humanity, that any one, in
commenting upon them, may well be excused for passing from the language
of argument to that of emotion.
If there be any one right known to the common law more important
and sacred than all others, it is the right of confronting and
cross-examining the witnesses who are brought to testify against us.
Without this right, there is no fraud that cannot be practised upon the
most honest man, and no guilt that cannot be proved against the most
innocent one. Doubtless this right of cross-examination is sometimes
abused; but there are few spectacles more exciting or more gratifying
than to see the demons of falsehood driven out, one after another, from
a perjured villain, until the truth, at last, is wrenched from his
heart, notwithstanding the double boltings and barrings with which he
had locked it there. The fear of this cross-examination “casting its
shadows before,” has prevented thousands and tens of thousands from
swearing falsely. Next to honesty, this fear is the greatest protection
to property, liberty, and life.
Now the testimony which doomed Sims to slavery, and which may doom any
of us with our wives and children to slavery, when men grow, not more
wicked, but only a little more bold in their wickedness than they are
now, was wholly _ex parte_ testimony; taken, not merely behind the
victim’s back, but a thousand miles behind his back; of which he had
no knowledge, and, unless he were omniscient, like God, could have no
knowledge. And when the counsel of Sims urged upon the commissioner the
enormity of this outrage against all principle, what was his reply?
It was this, and it makes a man’s blood run cold to read it: Sims’s
absence from Georgia, “so that he could not be served with notice, if
he was entitled to it, was in his own wrong, and he cannot now complain
that he had no opportunity to cross-examine the witnesses.”
I appeal to all history to prove, that no judge who ever sat upon a
bench where the common law was recognized and administered, however
corrupt he may have been, ever advanced a more atrocious doctrine. Why,
gentlemen, if a debtor absconds for the very purpose of defrauding his
creditors, he must have notice before he can be proceeded against for
the recovery of a debt. If he flees from the state, lurks and hides
himself, he must have the best notice the court can contrive to give
him. If the plaintiff recovers and takes out execution, he must file
a bond conditioned to make restoration; and years afterwards, if the
defendant shall come back and show cause; he shall be entitled to a
review to annul the whole proceedings against him. Ay, when a criminal,
a robber, a murderer, an incendiary, is brought to trial, even he must
be “confronted with the witnesses against him, have compulsory process
for obtaining witnesses in his favor, and the assistance of counsel in
his defence.” And yet the commissioner _makes proof out of nothing_,
that Sims escaped from slavery, and then, because of this nothing-made
proof, he inculpates him with being absent “in his own wrong.”
The other point referred to arose from certain testimony, (if it can be
called testimony,) that the mother of Sims begged the witness, “whether
her son was in a free state or in a slave state, for God’s sake, to
bring him back again.” “This,” says the commissioner, “certainly
disarms the case of any unpleasant features”! Why, even the kine of
the barn-yard, when the butcher cuts the throat of her young, will
weep and low, and bellow, for days and days, and say, as well as in
her inarticulate moanings she can say, “For God’s sake, let it be
brought back again;” though the only consequence of its return would
be to have its throat cut by the butcher again. And are we to expect
that the brutalized, chattelized “cattle” of the south will have less
of that natural yearning and longing of the soul, at the loss of their
offspring, than the animals of the farmer’s yard? Can we suppose
that God has not planted the instinct of a mother’s love too deep to
be destroyed but by the destruction of the being herself in whom it
was planted? No! debase the mother as you will, by ignorance, vice,
superstition, lust, concubinage, incest, and this wealth of affection
will still glow at the bottom of her heart, “rich as the oozy bottom
of the deep in sunken wrack and sumless treasures.” And because this
mother’s love had not been all extinguished, the commissioner says
that his sending a human being into the abyss of bondage, on evidence
that an intelligent barbarian would reject, “certainly disarms the
case of any unpleasant features.” But I shall not expostulate with the
commissioner. A man must have a heart before he can feel, as he must
have eyes before he can see.
“O, who can paint a sunbeam to the blind,
Or make him feel a shadow with his mind?”
Fellow-citizens, I might occupy your attention much longer upon this
unprecedented opinion of the commissioner; but there are two or three
other topics to which I wish to call your attention, and I therefore
forbear. In saying what I have said, I disclaim all personal ill will
or discourtesy towards that magistrate. Even should I appear not to
have succeeded in suppressing my own feelings, I certainly cannot wound
his more than he has wounded mine, and those I believe of nine tenths
of all who have ever read his opinion;--not by a thousand fold as much
as he has wounded the law, whose servant he is, or the fair fame of
Massachusetts, of which he is a citizen; not so much as his decision
will wound the hearts of an intelligent posterity, who shall look back
upon it as a partisan and an ignoble act, not to be remembered without
a sigh.
* * * * *
If the legal relations of slavery did not sustain the moral ones,
as the root sustains the branches and nourishes the fruit, those
moral relations would seem to demand all our attention. I know but
comparatively little, and no man living at the north can know but
comparatively little, of the various and ever-repeated wickednesses
of this institution. It has been my lot, however, to live for about
half the time, during the last four years, in the midst of a milder
form of slavery. And besides this, I was once engaged for about six
weeks in the trial of causes growing directly out of slavery; and
that experience gave me some insight into its dreadful mysteries. For
a moment, the wind blew the smoke and flame aside, and I looked into
its hell. I saw, then, as I had never seen before, what a vital and
inextinguishable interest every human being has in this subject;--not
the slaves alone, but the free men; not voters only, but all who can be
affected by votes; not men only, but especially women.
For this reason, I am glad to see so many ladies in this audience. It
becomes them to be here. If any mortal should cultivate an abhorrence
of slavery, the female sex should do it. Whatever any one may hold
to be the social relation between free women and slave women, yet
before God and Christ, and all the holy angels, they belong to the
same sisterhood of the human race. They are your sisters. And what is
the condition of these your sisters, in regard to everything that a
virtuous and noble woman holds most sacred and dear?
Ladies, there are now in this land of pretended freedom and pretended
gospel a million and a half of women who have no practical knowledge of
what a woman’s higher life should be, or what a woman’s most precious
rights are. Since the Declaration of Independence, the number of slaves
in this country has increased from less than five hundred thousand to
more than three millions; and before the close of this century, their
descendants will increase to more than thrice three millions. And yet,
neither as to the living nor as to the dead, has there ever been a
lawful marriage among them all. There has never been a man slave who
could say, “This is my wife, heart of my heart, and life of my life,
and no mortal power shall pluck her from my side.” There has never been
a woman slave who could say, “This is my lawful, wedded husband, whom I
promise to love and cherish, and to whom I vow inviolable constancy.”
“For this cause,” says Christ, “shall a man leave father and mother,
and shall cleave to his wife, and they twain shall be one flesh.” But
the “twain” of slaves are never one. And even when any sham ceremony
is observed, to distinguish this holy relation of husband and wife
from the cohabitations of beasts, and he who officiates comes to those
other words of Christ, “What, therefore, God has joined together, let
not man put asunder,” he stops; for he knows, and they all know,
that a few dollars, at any time, will bring bereavement upon both,--a
double bereavement, he a widower and she a widow, both still surviving.
Their life, at best, is but a life of concubinage;--not even that
concubinage, which, though not founded upon a lawful contract, has
still something like conjugal fidelity in it, and therefore a semblance
of virtue; but a various and vagrant concubinage, traversing the circle
of overseer, master, master’s guests, and master’s sons. The fate of
the children born to the slave mother you all know. Those objects upon
which all maternal affections meet and glow as in a focus, are torn
from her bosom, like lambs from the flock when the shambles are empty.
And as to those females who are young, sprightly, and handsome:--
Charge me not with indelicacy in touching upon this theme. _Honi soit
qui mal y pense._ I speak not to fastidious ears, but to the pure in
heart, to whom all things are pure. I speak of eternal verities, before
whose massive force the heart trembles and bows itself, as reeds before
the tempest. It is the grossest and most shameless of all indelicacies
to patronize and multiply vice, through pusillanimity in exposing it,--
As to those females, I say, who are young, sprightly, and handsome,
whom God has damned with beauty of form and beauty of face, because
they only attract the gloating eye of passion, who can describe the
loathsomeness of their life? They are ripened for the New Orleans, or
for some other market, whence southern harems are supplied; as, under
the Mahometan religion, white Caucasian beauties are sent to the slave
marts of the darker-skinned Turk.
In that company of seventy-six persons who attempted, in 1848, to
escape from the District of Columbia in the schooner Pearl, and whose
officers I assisted in defending, there were several young and healthy
girls who had those peculiar attractions of form, of feature, and
of complexion, which southern connoisseurs in sensualism so highly
prize. Elizabeth Russell was one of them. She fell immediately into
the slave-traders’ fangs, and was doomed for the New Orleans market.
The hearts of those who saw her and foresaw her fate were touched with
pity. They offered eighteen hundred dollars to redeem her, and some
there were who offered to give, who would not have had much left after
the gift. But the fiend of a slave trader was inexorable. He knew how
he could transmute her charms into gold through the fires of sin. He
demanded twenty-one hundred dollars, (though for menial services she
would not have been worth more than four or five,) and would take
nothing less. She was despatched to New Orleans, but when about half
way there, God had mercy upon her and smote her with death. Perhaps,
foreseeing her fate, she practised what, under such circumstances, we
might call the virtue of suicide. There were two girls named Edmundson
in the same company. When about to be sent to the same market, an older
sister went to the shambles to plead with the wretch who owned them,
for the love of God, to spare his victims. He bantered her, telling her
what fine dresses and fine furniture they would have. “Yes,” said she,
“that may do well in this life, but what will become of them in the
next?” They, too, were sent to New Orleans, but they were afterwards
redeemed at an enormous ransom, and brought back. There was one girl,
who, after her recapture in the Pearl, was sold six times in seven
weeks, in Maryland and Virginia, for her beauty’s sake. But she proved
heroically and sublimely intractable. Like Rebecca, the Jewess, she
would have flung herself from the loftiest battlement, rather than
yield her person to a villain. Notwithstanding her masters’ pretence
that they had bought her with their money, and owned her soul, yet
she had wealth, which, though all the earth were “one entire and
perfect chrysolite,” it could not buy. It was not difficult, therefore,
to purchase her, and she was redeemed and came to New York; and I
have been informed in the most authentic manner from the lady of the
very respectable family of which she became an inmate, that, on an
examination of her person, after the healing-time of the journey had
passed, her body was found scarred and waled with whip marks, which the
villains inflicted upon her because she would not come to their bed.
Now, suppose a sister or daughter of yours, of this heroic soul
and spotless purity, should find herself on the way to New
Orleans;--suppose, by almost superhuman power and adroitness, she
should escape, and should thread her solitary and darksome path, for
hundreds of miles, towards the north star; should lie down in caverns,
with poisonous reptiles by day, and pursue her lonely journey by night,
finding the beasts of the forests to be less terrible than man; should
swim rivers, and keep off famine by roots and insects, until at last,
thanks be to God, she sets her mangled and bleeding feet upon the soil
of freedom. Perhaps some echo of the fame of the Pilgrim mothers has
reached her ears. She has heard of Boston and its noble women of old,
and she hies hither as to a city of refuge,--as to a sanctuary where
virtue has an altar, and where she can lay down her hunted and weary
body, and be at rest. Fallacious hope! The lecher pursues his prey, and
he is here. He goes to some Glossin lawyer who sues out a warrant; and
to some Jack Ketch who serves it. The victim is seized at midnight,
under some lying charge, and she is carried before a commissioner,
whose conduct, were he a _quasi_ judge, as he pretends to be, would be
enough to make every hair of the judicial ermine forever detestable.
Here a process is gone through which she does not understand, and
some papers are read of which she never heard, and then a judgment is
pronounced that her “labor” is “due” to her pursuer, (and such labor!)
that she “owes service” to him, (and such service!) and then the
commissioner delivers her into his arms, and pockets a fee which common
pimps would be ashamed to work for.