United States. He professes to have acted under the fugitive slave
bill which authorizes him to seize, kidnap, steal, imprison, and carry
off any person whatsoever, on the oath of any slaveholder who has
fortified himself with a piece of paper of a certain form and tenor
from any court of slaveholders in the slave States. Is that bill
Constitutional? The Constitution of the United States is the People's
Power of Attorney by which they authorize certain servants, called
Legislative, Judicial, and Executive officers, to do certain matters
and things in a certain way, but prohibit them from doing in the name
of the People, any thing except those things specified, or those in
any but the way pointed out. Does the fugitive slave bill attempt
those things and only those, in the way provided for in that Power of
Attorney; or other things, or in a different way?
To determine this compound question you will look (1.) at the ultimate
Purpose of the Constitution, the End which the People wanted to
attain; and (2.) at the provisional Means, the method by which they
proposed to reach it. Here of course the Purpose is more important
than the Means. The Preamble to this Power of Attorney clearly sets
forth this Purpose aimed at: here it is, "to form a more perfect
Union, establish Justice, insure domestic Tranquillity, provide for
the Common Defence, promote the General Welfare, and secure the
Blessings of Liberty." Is the fugitive slave bill a Measure tending to
that End?
To answer that question you are to consult your own mind and
conscience. You are not to take the opinion of the Court. For (1.) it
would probably be their purchased _official_ opinion which the
government pays for, and so is of no value whatever; or (2.) if it be
their _personal_ opinion, from what Mr. Sprague and Mr. Curtis have
said and done before, you know that their personal opinion in the
matter would be of no value whatsoever. To me it is very plain that
kidnapping a man in Boston and making him a slave, is not the way to
form a more perfect Union, establish Justice, insure domestic
Tranquillity, provide for the Common Defence, promote the General
Welfare, or secure the Blessings of Liberty. But you are to judge for
yourselves. If you think the fugitive slave bill not a Means towards
that End, which this national Power of Attorney proposes, then you
will think it is unconstitutional, that Mr. Freeman was not in the
peace of the United States, but acting against it; and then it was the
Right of every citizen to obstruct his illegal wickedness and might be
the Duty of some.
But not only does the fugitive slave bill contravene and oppose the
Purpose of the Constitution, it also transcends the Means which that
Power of Attorney declares the People's agents shall make use of, and
whereto it absolutely restricts them. The Constitution prescribes that
"the Judicial power shall be vested in one Supreme Court, and in such
inferior courts the Congress may ordain and establish." "The Judges
... shall hold their offices during good behavior, and shall ...
receive a compensation which shall not be diminished during their
continuance in office." Now the Commissioner who kidnaps a man and
declares him a slave, exercises _judicial power_. Commissioner Loring
himself confesses it, in his Remonstrance against being removed from
the office of Judge of Probate. You are to consider whether a
Commissioner appointed by the Judge of the Court as a ministerial
officer to take "bail and affidavits," and paid twice as much for
stealing a victim as for setting free a man, is either such a
"supreme" or such an "inferior court" as the Constitution vests the
"judicial powers" in. If not, then the fugitive slave bill is
unconstitutional because it does not use the Means which the People's
Power of Attorney points out. Of course the inquiry stops at this
point, and you return "not guilty."
4. It is claimed that the fugitive slave bill is sustained by this
clause in the Constitution, "No person held to service or labor in one
State, under the laws thereof, escaping into another, shall, in
consequence of any law or regulation therein, be discharged from such
service or labor, but shall be delivered up on claim of the party to
whom such service or labor may be due."[225] But if you try the
fugitive slave bill by this rule, you must settle two questions. (1.)
Who is meant by persons "held to service or labor?" and (2.) by whom
shall they "be delivered up on claim?" Let us begin with the first.
[Footnote 225: Art. iv. Sec. 2, P. 2.]
(1.) Who are the persons "held to service or labor?" The preamble to
this People's Power of Attorney, sets forth the matters and things
which the People's agents are empowered to achieve. "They are to form
a more perfect Union, establish Justice, insure domestic Tranquillity,
provide for the common Defence, promote the General Welfare and secure
the Blessings of Liberty." Now the fugitive-from-labor clause must be
interpreted in part by the light of the Purpose of the Constitution.
So it would appear that this Power of Attorney, requires the delivery
of only such as are _justly_ "held to service or labor;" and only to
those men to whom this "service" is _justly_ "due." Surely, it would
be a monstrous act to deliver up to his master a person _unjustly_
"held to service or labor," or one justly held to those to whom his
service was not _justly_ due: it would be as bad to deliver up the
_wrong fugitive_, as to deliver the right fugitive to the _wrong
claimant_: it would be also monstrous to suppose that the People of
the United States, with the Declaration of Independence in their
memory, should empower their attorneys to deliver up a man _unjustly_
held to service or labor, and that too by the very instrument which
directs them to "establish Justice" and "secure the Blessings of
Liberty." Whatsoever interpretation was at the time put on the
Constitution, whatsoever the People thereby intended, two things are
plain--namely, (1.) that the language implies only such as are
_justly_ held to service, or labor, and (2.) that the People had no
moral right to deliver up any except such as were _justly_ held, and
had _unjustly_ escaped.
If the opposite interpretation be accepted, and that clause be taken
without restrictions, then see what will follow. South Carolina has
already made a law by which she imprisons all _colored_ citizens of
the free States who are found on her soil. Let us suppose she makes a
new law for reducing to perpetual slavery all the white citizens of
Massachusetts whom she finds on her soil; that a Boston vessel with
500 Boston men and women--sailing for California,--is wrecked on her
inhospitable coast, and those persons are all seized and reduced to
slavery; but some ten or twenty of the most resolute escape from the
"service or labor" to which they are held, and return to their
business in Boston. But their "owners" come in pursuit; the kidnapping
Commissioners, Curtis and Loring, with the help of the rest of the
family of men-stealers, arrest them under the fugitive slave bill. On
the mock trial, it is shown by the kidnapper that they were legally
"held to service or labor," and according to the constitution "shall
be delivered up;" that this enslavement is perfectly "legal" in South
Carolina; and the constitution says that no "law or regulation" of
Massachusetts shall set them free. They must go with Sims and Burns.
Gentlemen, you see where you are going, if you allow the Constitution
of parchment to override the Constitution of Justice.
(2.) By whom shall they "be delivered up?" Either by the Federal
Government, or else by the Government of the State into which they
have escaped. Now the Federal Government has no constitutional power,
except what the Constitution gives it. Gentlemen, there is not a line
in that Power of Attorney by which the People authorize the Federal
Government to make a man a slave in Massachusetts or anywhere else. I
know the Government has done it, as the British Government levied
ship-money, and put men to the rack, but it is against the
Constitution of the land.
Gentlemen, you will settle these constitutional questions according to
your conscience, not mine. But if the fugitive slave bill demands the
rendition of men from whom service is not _justly_ due--due by the Law
of God, or if the Government unconstitutionally aims to do what the
Constitution gave it no right to do--then the Marshal was not "in the
peace of the United States." Your inquiry stops at this point.
5. But, if satisfied on all which relates to this question of his
being in the peace of the United States, you are next to inquire if
Mr. Freeman, at the time of the obstruction was "Marshal of the United
States," and "in the due and lawful discharge of his duties as such
officer." There is no doubt that he was Marshal; but there may be a
doubt that he was in the "lawful discharge of his duties as such
officer." Omitting what I first said, (I. 1.) see what you must
determine in order to make this clear.
(1.) Was Commissioner Loring, who issued the warrant to kidnap Mr.
Burns, legally qualified to do that act. Gentlemen, there is no record
of his appointment and qualification by the form of an oath. No
evidence has been adduced to this point. Mr. Loring says he was duly
appointed and qualified. There is no written line, no other word of
mouth to prove it.
(2.) Admitting that Mr. Loring had the legal authority to command Mr.
Freeman to steal Mr. Burns, it appears that stealing was done
feloniously. The Marshal's guard seized him on the charge of
Burglary--a false charge. You are to consider whether Mr. Freeman had
legally taken possession of his victim.
(3.) If satisfied thus far, you are to inquire if he held him legally.
It seems he was imprisoned in a public building of Massachusetts,
which was by him used as a jail for the purpose of keeping a man
claimed as a fugitive slave, contrary to the express words of a
regular and constitutional statute of Massachusetts.
If you find that Mr. Freeman was not in the lawful discharge of his
duties as Marshal, then the inquiry stops here, and you return a
verdict of "not guilty."
But if you are convinced that an obstruction was made against a
Marshal in the peace of the United States, and in the legal discharge
of a legal, constitutional duty, then you settle the question of Fact
against me, and proceed to the next point.
II. _The Question of Law._
1. Is there a law of the United States punishing this deed of mine?
The answer will depend partly on the kind of opposition or obstruction
which I made. If you find (1.) that I obstructed him, while in the
legal discharge of his legal duties, with physical force, violence,
then there is a law, clear and unmistakable, forbidding and punishing
that offence. But if you find (2.) that I obstructed him with only
metaphysical force,--"words," "thoughts," "feelings," "wishes,"
"consent," "assent," "evincing an express liking," "or approbation,"
then it may be doubtful to you whether the law of 1790, or any other
law of the United States forbids that.
2. But if you find there is such a law, punishing such metaphysical
resistance--and the court by the charge to the Grand-Jury seems
plainly of that opinion, which is fortified by the authority of Chief
Justice Kelyng and Judge Chase, two impeached judges--then you will
consider whether that law is constitutional. And here you will look at
two things, (1.) The Purpose of the Constitution already set forth;
and (2.) at the Means provided for by that Power of Attorney. For if
the agents of the People--legislative, judiciary, or executive--have
exceeded their delegated authority, then their act is invalid and
binding on no man. If I, in writing, authorize my special agent to
sell my Ink-stand for a dollar, I am bound by his act in obedience
thereto. But if on that warrant he sells my Writing-Desk for that sum,
I am not bound by his unauthorized act. Now I think there will be
grave doubts, whether any law, which with fine and imprisonment
punishes such words, thoughts, feelings, consent, assent, "express
liking," approbation, is warranted by the People's Power of Attorney
to their agents. The opinion of the Court on such a matter, Gentlemen,
I think is worth as much as Bacon's opinion in favor of the rack; or
Jones's opinion that Charles I. had the right to imprison members of
Parliament for words spoken in the Commons' Debate; or the opinion of
the ten judges that Ship-money was lawful; or of the two chief
justices that the Seven Bishops' Petition to James II. was high
treason; or Thurlow's opinion that a jury is the natural enemy of the
King. Gentlemen, I think it is worth nothing at all. But if you think
otherwise, you have still to ask:--
3. Is this law just? That is does it coincide with the Law of God, the
Constitution of the Universe? There your own conscience must decide.
Mr. Curtis has told you there is no Morality but Legality, no standard
of Right and Wrong but the Statute, your only light comes from this
printed page, "Statutes of the United States," and through these
sheepskin covers. Gentlemen, if your conscience is also bound in
sheepskin you will think as these Honorable Judges, and recognize only
Judge Curtis's "Standard of Morality,"--no Higher Law. But even if you
thus dispose of the Question of Law, there will yet remain the last
part of your function.
III. _The Question of the Application of the Law to the Fact._ To
determine this Question you are to ask:--
1. Does the law itself, the act of 1790, apply to such acts, that is,
to such words, thoughts, wishes, feelings, consent, assent,
approbation, express liking, and punish them with fine and
imprisonment? If not, the consideration ends: but if it does, you will
next ask:--
2. Is it according to the Constitution of the United States--its
Purpose, its Means--thus to punish such acts? If not satisfied
thereof, you stop there; but if you accept Judge Curtis's opinion then
you will next inquire:--
3. Is it expedient in this particular case to apply this law, under
the circumstances, to this man, and punish him with fine and
imprisonment? If you say "yes" you will then proceed to the last part
of the whole investigation, and will ask:--
4. Is it just and right; that is according to the Natural Law of God,
the Constitution of the Universe? Here you will consider several
things.
(1.) What was the Marshal legally, constitutionally, and justly doing
at the time he was obstructed? He was stealing, kidnapping, and
detaining an innocent man, Anthony Burns, with the intention of
depriving him of what the Declaration of Independence calls his
natural and unalienable Right to liberty and the pursuit of happiness.
Mr. Burns had done no wrong or injury to any one--but simply came to
Massachusetts, to possess and enjoy these natural rights. Marshal
Freeman had seized him on the false charge of burglary, had chained
him in a dungeon contrary to Massachusetts law,--there were irons on
his hands.
It is said he was a slave: now a slave is a person whom some one has
stolen from himself, and by force keeps from his natural rights. Mr.
Burns sought to rescue himself from the thieves who held him; Marshal
Freeman took the thieves' part.
(2.) Was there any effectual mode of securing to Mr. Burns his natural
and unalienable Right except the mode of forcible rescue? Gentlemen of
the Jury, it is very clear there was none at all. The laws of
Massachusetts were of no avail. Your own Supreme Court, which in 1832,
at the instigation of Mr. Charles P. Curtis, sent a little boy not
fourteen years old into Cuban Slavery to gratify a slave-hunting West
Indian, in 1851, had voluntarily put its neck under the Southern
chain. Your Chief Justice, who acquired such honorable distinction in
1836 by setting free the little girl Med from the hands of the
Curtises, in 1851 spit in the face of Massachusetts, and spurned her
laws with his judicial foot. It was plain that Commissioner Loring did
not design to allow his victim a fair trial--for he had already
prejudged the case; he advised Mr. Phillips "to make no defence, put
no 'obstruction' in the way of the man's going back, as he probably
will," and, before hearing the defence sought to settle the matter by
a sale of Mr. Burns.
Gentlemen, the result showed there was no chance of what the United
States law reckons justice being done in the case--for Commissioner
Loring not only decided the fate of Mr. Burns against law, and against
evidence, but communicated his decision to the slave-hunters nearly
twenty-four hours before he announced it in open court! No, Gentlemen,
when a man claimed as a fugitive is brought before either of these two
members of this family of kidnappers--who run now in couples, hunting
men and seeking whom they may devour--there is no hope for him: it is
only a mock-trial, worse than the Star-chamber inquisition of the
Stuart kings. Place no "obstructions in the way of the man's going
back," said the mildest of the two, "as he probably will." Over that
door, historic and actual, as over that other, but fabulous, gate of
Hell should be written:--
"Through me they go to the city of sorrow;
Through me they go to endless agony;
Through me they go among the nations lost:
Leave every hope, all ye that enter here!"
The only hope of freedom for Mr. Burns lay in the limbs of the People!
Anarchy afforded him the only chance of Justice.
(3.) Did they who it is alleged made the attack on the Marshal, or
they who it is said instigated them to the attack, do it from any
wicked, unjust, or selfish motive? Nobody pretends it--Gentlemen, we
had much to lose--ease, honor--for with many persons in Boston it is a
disgrace to favor the unalienable Rights of man, as at Rome to read
the Bible, or at Damascus to be a Christian--ease, honor, money,
liberty--if this Court have its way,--nay, life itself; for one of the
family which preserves the Union by kidnapping men, counts it a
capital crime to rescue a victim from their hands, and Mr. Hallett,
when only a democratic expectant of office, declared "if it only
resists law and obstructs its officers ... it is treason ... and he
who risks it must risk hanging for it." No, Gentlemen, I had much to
lose by my words. I had nothing to gain. Nothing I mean but the
satisfaction of doing my duty to Myself, my Brother, and my God. And
tried by Judge Sprague's precept, "Obey both," that is nothing; or by
Judge Curtis's "Standard of Morality" it is a crime; and according to
his brother it is "Treason;" and according to, I know not how many
ministers of commerce, it is "infidelity"--"treasonable, damnable
doctrine."
No, Gentlemen, no selfish motive could move me to such conduct. The
voice of Duty was terribly clear: "Inasmuch as ye have done it unto
the least of these my brethren, ye have done it unto me."
Put all these things together, Gentlemen. Remember there is a duty of
the strong to help the weak: that all men have a common interest in
the common duty to keep the Eternal Law of Justice; remember we are
all of us to appear one day before the Court which is of purer eyes
than to love iniquity. Ask what says Conscience--what says God. Then
decide as you must decide.
The eyes of the nation are upon you. The Judges of this Honorable
Court hold their office in Petty Serjeantry on condition of wresting
the Laws and Constitution to the support of the fugitive slave bill,
and of preventing, as far as possible, all noble thought which opposes
the establishment of Despotism, now so rapidly encroaching upon our
once Free Soil: they hold by this Petty Serjeantry--a menial service
not mentioned in any book even of "Jocular Tenures."
If you could find me guilty--it is not possible, only conceivable with
a contradiction,--you would delight the Slave Power--Atchison,
Cushing, Stringfellow, and their Northern and Southern crew--for to
them I seem identified with New England Freedom of Speech. "Aha," they
will neigh and snicker out, "Judge Curtis has got the North under his
feet! Mr. Webster knew what he was about when putting him in place!"
English is the only tongue in which Freedom can speak her political or
religious word. Shall that tongue be silenced; tied in Faneuil Hall;
torn out by a Slave-hunter? The Stamp Act only taxed commercial and
legal documents; the fugitive slave bill makes our words misdemeanors.
The Revenue Act did but lay a tax on tea, three-pence only on a pound:
the Slave-hunters' act taxes our thoughts as a crime. The Boston Port
Bill but closed our harbor, we could get in at Salem; but the Judge's
Charge shuts up the mouth of all New England, not a word against
man-hunting but is a "crime,"--the New Testament is full of
"misdemeanors." Andros only took away the Charter of Massachusetts;
Judge Curtis's "law" is a _quo warranto_ against Humanity itself.
"Perfidious General Gage" took away the arms of Boston; Judge Curtis
_charges_ upon our Soul; he would wring all religion out of you,--no
"Standard of Morality" above the fugitive slave bill; you must not,
even to God in your prayers, evince "an express liking" for the
deliverance of an innocent man whom his family seek to transform to a
beast of burthen and then sacrifice to the American Moloch.
Decide according to your own Conscience, Gentlemen, not after mine.
* * * * *
Gentlemen of the Jury, I must bring this defence to a close. Already
it is too long for your patience, though far too short for the mighty
interest at stake, for it is the Freedom of a Nation which you are to
decide upon. I have shown you the aim and purposes of the Slave
Power--to make this vast Continent one huge Despotism, a House of
Bondage for African Americans, a House of Bondage also for Saxon
Americans. I have pointed out the course of Despotism in Monarchic
England; you have seen how there the Tyrants directly made wicked
laws, or when that resource failed, how they reached indirectly after
their End, and appointed officers to pervert the law, to ruin the
people. You remember how the King appointed base men as Attorneys and
Judges, and how wickedly they used their position and their power,
scorning alike the law of God and the welfare of Man. "The Judges in
their itinerant Circuits," says an old historian,[226] "the more to
enslave the people to obedience, being to speak of the king, would
give him sacred titles as if their advancement to high places must
necessarily be laid upon the foundation of the People's debasement."
You have not forgotten Saunders, Kelyng, and Jeffreys and Scroggs;
Sibthorpe and Mainwaring you will remember for ever,--denouncing
"eternal damnation" on such as refused the illegal tax of Charles I.
or evinced an express disapprobation of his tyranny.
[Footnote 226: In 2 Kennett, 753.]
Gentlemen, you recollect how the rights of the jury were broken
down,--how jurors were threatened with trial for perjury, insulted,
fined, and imprisoned, because they would be faithful to the Law and
their Conscience. You remember how the tyrannical king clutched at the
People's purse and their person too, and smote at all freedom of
speech, while the purchased Judges were always ready, the tools of
Despotism. But you know what it all came to--Justice could not enter
upon the law through the doors of Westminster Hall; so she tried it at
Naseby and Worcester and with her "Invincible Ironsides" took
possession by means of pike and gun. Charles I. laid his guilty head
on the block; James II. only escaped the same fate by timely flight.
If Courts will not decree Justice, then Civil War will, for it must be
done, and a battle becomes a "Crowning Mercy."