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| FREEDOM NATIONAL; SLAVERY SECTIONAL.
SPEECH EI /HON. CHARLES SUMNER.
OF MASSACHUSETTS,
ON HIS MOTION
bee 5 my A) Simm, gf og a dope > Git ff ie
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| 10 REPEAL TH FOIE SA aL,
IN THE SENATE OF THE UNITED STATES, AUGUST 26, 1852.
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If any man Sink Ss Met thei ii Atarest of, these? whe ie and ta interest of Christianity are two separate and distinet things, wish Iny soul may never enter into his secret.» > » » o) OLIVER CROMWELL.
WASHINGTON: BUELL & BLANCHARD.
wee 1853.
se ib TENTH EDITION, REVISED,
es thn
2 eas
FREEDOM NATIONAL;'
i SLAVERY SECTIONAL.
SPEECH OF CHARLES SUMNER, OF MASSACHUSETTS.
In the Senate, Wednesday, May 26th, 1852, on the | presentation of a memorial against the Fugitive Slave Bill, the following passage occurred:
Mr. SUMNER. I hold in my hand, and desire to present, a memorial from the representatives of the Society of Friends in New England, formally adopted at a public meeting, and authenticated by their clerk, in which they ask for the repeal of the Fugitive Slave Bill. After setting forth their sentiments on the general subject of slavery. the memorialists pro. ceed as follows:
“We, therefore, respectfully, but earnestly and sin- corely, entreat you to repeal the law of the last Con- ‘gress respecting fugitive slaves; first and principally, because of its injustice towards a long sorely-oppress éd and deeply-injured people; and, secondly, in order that we, together with other conscientious sufferers, may be exempted from the penalties which it imposes on all, who in faithfulness to their Divine Master, and in discharge of their obligations to their distress- ed fellow-men, feel bound to regulate their conduct, even under the heaviest penalties which man can in- flict for so doing, by the Divine injunction, ‘ All things whatsoever ye would that men should do to you, do you even so to them;’ and by the other com- mandment, ‘Thou shalt love the Lord thy God with all thy heart, and thy neighbor as thyself’ ”
Mr. President, this memorial is commended by the character of the religious association from which it ‘proceeds—men who mingle rarely in public affairs, but with austere virtue seek to carry the Christian rule into life.
_ The PRESIDENT. The Chair will have to inter- pose. The Senator is not privileged to enter into a discussion of the subject now. ‘The contents of the memorial, simply, are to be stated, and then it be- comes a question whether it is to be received. if any objection is made to its reception. Silence gives con- sent. After it is received he can make a motion with regard to its reference, and then make any remarks he thinks proper.
Mr. SUMNER. I have but a very few words to add, and then I propose to move the reference of the memorial to the Committee on the Judiciary.
The PRESIDENT. The memorial has first to be received before any motion as to its reference can be entertained. The Senator presenting a memorial states distinetly its objects and contents; then it is sent to the Chair, if a reference of it is desired. But iti is not in order to enter into a discussion of the
merits of the memorial until it has been received.
Mr. SUMNER. Ido not propose to enter into any “uch discussion. I have already read one part of the memorial, and it was my design mercly to refer to tlie character of the memorialists—a usage which J have observed on this floor constantly—to state the ¢ourse I should pursue, and then conclude with a motion for a reference.
The PRESIDENT. The Chair will hear the Sena- tor, if such is the pleasure of the Senate, if he does not go into an‘elaborate discussion.
Mr. SUMNER. TI have no such purpose.
Mr. DAWSON. Let him be heard.
Several Senators. Certainly.
Mr.SUMNER. I observed that this memorial was commended by the character of the religious associa- tion from which it proceeds. It is commended, also, by its earnest and persuasive tone, and by the prayer which it presents. Offering it now, sir, I desire sim- ply to say, that I shall deem it my duty, on some proper occasion hereafter, to express myself at length on the matter to which it relates. Thus far, during this session, I have forborne. With the exception of an able speech from my colleague, [Mr. Davis,] the discussion of this all-absorbing question has been mainly left with Senators from another quarter of the country, by whose mutual differences it has been complicated, and between whom I have not cared to interfere. But, there isa time for all things. Jus- tice, also, requires that both sides should be heard; and I trust not to expect too much, when, at some fii moment, I bespeak the clear and candid at- tention of the Senate, while I undertake to set forth, frankly and fully, and with entire respect for this body, convictions, deeply cherished in my own State, though disregarded here—ito which I am. bound by every sentiment of the heart, by every fibre of my being, by all my devotion to country, by my love of God and man. But, upon these I do not now enter. Suffice it, for the presentSto say, that when I shal] un- dertake that service, I believe I shall utter nothing which, in any just sense, can be ealled sectzonal, un- less the Constitution is sectronal, and unless the senti- ments of the fathers were sectzonal. It is my happi- ness to believe, and my hope to be able to show that, according to the true spirit of the Constitution, and according to the sentiments of the fathers, FREEDOM, and not slavery, is NATIONAL; while SLAVERY, and not freedom, iS SECTIONAL. In duty to-the petition ers, and with the hope of promoting their prayer, I move the reference of their petition to the Commit tee on the Judiciary.
A brief debate ensued, in which Messrs. Mangum, Badger, Hale, Clemens, Dawson, Adams, Butler, and Chase, took part; and, on motion of Mr. ings a the
memorial was laid on the table.
On Thursday, 27th July, the subject was again pre- sented to the Senate:
Mr. SUMNHR. Mr. President, I have a resolu- tion which I desire to offer; and I wish, also, to give notice that I shall expect to call it up to-morrow, at an early time in the morning hour, when I shall throw myself upon the indulgence of the Senate to be heard upon it.
The resolution was then read, as follows:
Resolved, That the Commiitee on the Judiciary be requested to consider the expediency of reporting a bill for the immediate repeal of the act of Congress, approved September 18, 1850, usually known ag the Fugitive Slave Act.
In pursuance of this notice, on the next day, during
S
the morning hour, an attempt was made to call it
up.
Mr. SUMNER, Mr. President, I now ask permis- sion of the Senate to take up the resolution which I offered yesterday. For that purpose, I move that the prior orders be postponed, and upon this motion IT desire to saya word. In asking the Senate to take up this resolution for consideration, I say nothing of its merits nor of the arguments by which it may be maintained; nor do I at this stage anticipate any ob- jections to it on these grounds. All this will properly pelong to the discussion of the resolution itself—the main question—when it is actually before the Senate. The single question now is, not the resolution, but whether I shall be heard upon it. As a Senator, un- der the responsibilities of my position, I have deemed it my duty to offer this resolution. I may seem to ‘have postponed this duty to an inconvenient period of the session; but had I attempted it at an earlier day, [might have exposed myselfto a charge of a different character. it might then have been said that, a new-comer and inexperienced in this scene, without deliberation, hastily, rashly, recklessly, I pushed this question before the country. This is not the case now. I have taken time, and in the exer- cise of my most careful discretion now ask for it the 4 attention of the Senate. I shrink from any appeal ‘founded on a trivial personal consideration; but should I be blamed for any delay latterly, I may’ add, that though in my seat daily, my bodily health for some time past, down to this very week, has not been equal to the service I have undertaken, I am not sure that it is now; but I desire to try. And now again I say the question is simply whether Ll shall be heard. In, allowing me this privilege—this right, 1 might say—you do not commit yourselves in any way to the principle of the resolution; but you merely follow the ordinary usage of the Senate, and yield to a brother Senator the opportunity which he craves, in the practical discharge of his duty, to ex- press convictions dear to his heart, and dear to large numbers of his constituents. For the sake of these constituents, for my own sake, I now desire to be heard. Make such disposit#on of my resolution after- ward as to you shall seem best; visit upon me any any degree of criticism, censure, or displeasure, but do not deprive me of a hearing., ‘Strike, but hear.”
A debate ensued, in which Messrs. Mason, Brooke, Charlton, Shields, Gwin, Douglas, Butler, and Bor- land, took part. Objections to taking up the resolu- tion were pressed on the ground of ‘‘ want of time,” “the lateness of the session,” and “danger to the Union.”
Theyquestion being then taken upon the motion by Mr. Sumner, to take up his resolution, it was re- jected—yeas 10, nays 32—as follow:
Yreas—Megsrs. Clarke, Davis, Dodge of Wisconsin, Foot, Hamlin, Seward, Shields, Sumner, Upham, and Wade—10.
Nays—Messrs. Borland, Brodhead, Brooke, Cass, Charlton, Clemens, Desaussure, Dodge of Lowa, Douglas, Downs, Felch, Fish, Geyer, Gwin, Hunter, Hing, Mallory, Mangum, Mason, Meriwether, Miller,
orton, Norris, Pearce, Pratt, Rusk, Sebastian, Smith, Soulé, Spruance, Toucey, and Weller—32.
Tuurspay, Aveust 26, 1852. The Civil and Diplomatic Appropriation Bill be- ing under consideration, the following amendment was moved by the Committee on Finance:
“That where the ministerial officers of the United States have or shall incur extraordinary expenses in executing the laws thereof, the payment of which is not specifically provided, for, the President of the
United States is authorized to allow the payment, thereof, under the special taxation of the district or circuit court of the district in which the said services have been or shall be rendered, to be paid from the appropriation for defraying the expenses of the judi- ciary.” ;
Mr. SUMNER moved the following amendment to the amendment:
“ Provided, That no such allowance shall be au-
thorized for any expenses incurred in executing the
act of September 18, 1850, for the surrender of fugi- — tives from service or labor; which said act is hereby —
repealed.” On this he took the floor, and spoke as follows:
Mr. PresipentT: Here is a. provision for ex-— traordinary expenses incurred in executing the - Extraordinary ex- |
laws of the United States. penses! Sir, beneath these specious words lurks the very subject on which, by a solemn vote of this body, I was refused a hearing. | Here it is; no longer open to the charge of being an “abstraction,” but actually presented for practical legislation ; not introduced by me, but by one of the important committees of the Senate; not. brought forward weeks ago, when there was ample time for discussion, but only” at this moment, without any reference to the late period of the session. The amendment, which I now offer, proposes to remove one chief occasion of these extraordinary expenses. And now, at last, among these final crowded days of our duties here, but at this earliest op- portunity, | am to be heard; not as a favor, but as a right. The graceful usages of this body may be abandoned, but the established privileges of debate cannot be abridged. Par liamentary courtesy may be forgotten, but Par- liamentary law must prevail. The subject is broadly before the Senate. By the blessing of God, it shall be discussed. Sir, a severe lawgiver of early Greece vainly sought to secure permanence for his imperfect) institutions, by providing that the citizen who, at any time, attempted an alteration or repeal of any part thereof, should appear in thé pub lic assembly with a halter about his neck ready to be drawn if his proposition failed to be adopted. A tyrannical spirit among us, in} unconscious imitation of this antique and dis= carded barbarism, seeks to surround an offen; sive institution with a similar safeguard. In the existing distemper of the public mind and at this present juncture, no man can enter upon the service which I now undertake, without @ personal responsibility, such as can be sus4 tained only by that sense of duty which, unde God, is always our best support. That pers sonal responsibility I accept. Before the Sens ate and the country let me be held accountable for this act, and for every word which I t ter. _@ With me, sir, there is no alternative. Pain: fully convinced of the unutterable wrongs an woes of slavery; profoundly believing that, ae cording to the true spirit of the Constitution and the sentiments of the fathers, it can find
{
AS
no place under our National Government—that it is in every respect sectional, and in no respect national—that itis always and everywhere the -ereature and dependent of the States, and never ‘anywhere the creature or dependent of the
Nation, and that the Nation can never, by legis- | y
lative or other act, impart to it any support, under the Constitution of the United States ; with these convictions, I could not allow this session to reach its close, without making or seizing an opportunity to declare myself openly against the usurpation, injustice, and cruelty, of the late enactment by Congress for the re- covery of fugitive slaves. Full well I know, sir, the difficulties of this discussion, arising from prejudices of opinion and from adverse conclusions, strong and sincere aS my Own. Full well I know that I am in a small minori- ty, with few here to whom I may look for sym- pathy or support. Full well | know that I must utter things unwelcome to many in this body, which I cannot do without pain. Full well I know that the institution of slavery in our country, which I now proceed to consider, is as sensitive as it is powerful—possessing a power to shake the whole land with a sensitive- ness that shrinks and trembles at the touch. But, while these things may properly prompt me to cautiop and reserve, they cannot change my duty, or my determination to perform it. For this I willingly forget myself, and all per- sonal consequences. The fayor and good-will of my fellow-citizens, of my brethren of the Senate, sir—grateful to me as it justly is—I am ready, if required, to sacrifice. All that I am or may be, I freely offer to this cause.
And here allow me, for one moment, to refer to myself and my position. Sir, I have never been a politician. The slave of principles, | call no. party master. By sentiment, edu- eation, and conviction, a friend of Human Rights, in their utmost. expansion, I have ever most sincerely.embraced the Democrat- ic Idea; not, indeed, as represented or pro- fessed by any party, but according to its real significance, as transfigured in the Declaration of Independence, and in the injunctions of Christianity. In this Idea I saw no narrow ad- yantages merely for individuals or classes, but the sovereignty of the people and the greatest happiness of all secured by equal laws. Amidst the vicissitudes of public affairs, [ trust always to hold fast to this Idea, and to any political party which truly embraces it.
Party does not constrain me; nor is my in-
_ dependence lessened by any relations to the office which gives me a title to be heard on this floor. And here, sir, 1 may speak proudly. By no effort, by no desire of my own, | find myself a Senator of the United States. Never before have I held public office of any kind. With the ample opportunities of private life I was content. No tombstone for me could bear a fairer inscription than this: “Here lies one who,
_ without the honors or emoluments of public | lence.
5
station, did something for his fellow man.” From such simple aspirations I was taken away by the free choice of my native Commonwealth, and placed in this responsible post of duty, without personal obligation of any kind, be- ond what was implied in my life and publish- ed words. The earnest friends, by whose confi- dence I was first designated, asked nothing from me, and, throughout the long conflict which ended in my election, rejoiced in the po- sition which I most carefully guarded. To all my language was uniform, that I did not desire to be brought forward; that I would do nothing to promote the result; that I had no pledges or promises to offer; that the office should seek me, and not I the office; and that it should find me in all respects an independent man, bound to no. party and to no human being, but only, according to my best judgment, to act for the good of all. Again, sir, 1 speak with pride, both for myself and others, when I add that these avowals found a sympathizing response. In this spirit I have come here, and in this spirit I shall speak to-day.
Rejoicing in my independence and claim- ing nothing from party ties, | throw myseif upon the candor and magnanimity of the Sen- ate. I now ask your attention; but | trust not to abuse it. I may speak strongly; for I shall speak openly and from the strength of, my convictions. I may speak warmly; for I shall speak from the heart. But in no event can I forget the amenities which be- long to debate, and which especially become this body. Slavery I must condemn with my whole soul; but here I need only borrow the language of slayeholders themselves; nor would it accord with my habits or my sense of justice to exhibit them as the impersonation of the in- stitution—Jefferson calls it the “enormity”— which they cherish. Of them I do not speak; but without fear and without favor, as without impeachment of any person, J assail this wrong. Again, sir, I may err; but it will be with the Fathers. I plant myself on the ancient ways of the Republic, with its grandest names, its surest landmarks, and all its original altar- fires about me.
*
And now, on the very threshold, I encounter the objection that there is a final settlement, in principle and substance, of the question of Sla- very, and that all discussion of it is closed. Both the old political parties of the country, by formal resolutions, have united in this declara- tion. Ona subject which for years has agita-
ted the public mind; which yet palpitates in
every heart and burns on every tongue; which, in its immeasurable importance, dwarfs all other subjects; which, by its constant and gi- gantie presence, throws a shadow across these Halls; which at. this very time calls for ap- propriations to meet extraordinary expenses it has caused, they have imposed the rule of si- According to them, sir, we may speak
6
of everything except that alone, which is most (expressly provides against abridging freedom
present in all our minds.
To this combined effort I might fitly reply, that, with flagrant inconsistency, it challenges the very discussion which it pretends to forbid. Such a declaration, on the eve of an election, is, of course, submitted to the consideration and ratification of the people. Debate, in- quiry, discussion, are the necessary conse- quence. Silence becomes impossible. Slavery, which you profess to banish from the public attention, openly by your invitation enters every political meeting and every political con- vention. Nay, at this moment it stalks into this Senate, crying, like the daughters of the horse- leech, “Give! give!”
But no unanimity of politicians can uphold
the baseless assumption, that a law, or any |
conglomerate of laws, under the name of Com- promise, or howsoever called, is final. Nothing can be plainer than this; that, by no Parlia- mentary device or knot, can any Legisiature tie the hands of a succeeding Legislature, so as to prevent the full exercise of its constitu- tional powers. Each Legislature, under a just sense of its responsibility, must judge for it- self; and, if it think proper, it may revise or amend, or absolutely undo the work of its pre- decessors. The laws of the Medes and Persians are proverbially said to have been unalterable ; but they stand forth in history as a single ex- ample of such irrational defiance of the true principles of all law.
To make a law final, so as not to be reached by Congress, is, by mere legislation, to fasten a new provision on the Constitution. Nay, more ; it gives to the law a character which the very Constitution does not possess. The wise fathers did not treat the country as a Chinese foot, riever to grow after infancy; but, anticipating Progress, they declared expressly that their Great Actis not final. According to the Con- stitution itself, there is not one of its existing provisions—not even that with regard to fugi- tives from labor—which may not at all times be reached by amendment, and thus be drawn into debate. This is rational and just. Sir, nothing from man’s hands, nor law, nor con- stitution, can be final. Truth alone isfinal.
Inconsistent and absurd, this effort is tyran- nical. also. The responsibility for the recent Slave Act and for Slavery everywhere within the jurisdiction of Congress necessarily involves the right to discuss them. To separate these is impossible. Like the twenty-fifth rule of the House of Representatives against petitions on Slavery—now repealed and dishonored— the Compromise, as explained and urged, is a curtailment of the actual powers of legisla- tion, and a perpetual denial of the indisputa- ble principle that the right to deliberate is co- extensive with the responsibility for an act. To sustain Slavery, it is now proposed to tram- ple on free speech. In any country this would
of speech, it is a special outrage. In vain do we condemn the despotisms of Europe, while we borrow the rigors with which they repress Liberty, and guard their own uncertain power. For myself, in no factious spirit, but solemnly and in loyalty to the Constitution, as a Senator of Massachusetts, I protest against this wrong. On Slavery, as on every other subject, I claim the right to be heard. That right I canhot, I will not abandon. “Give me the liberty to know, to utter and to argue freely, above all liberties.” These are the glowing words which flashed from the soul of John Milton, in his struggles with English tyranny. With equal fervor they should be echoed now by every American, not already a slave.
But, sir, this effort is impotent as tyrannical. The convictions of the heart cannot be re- pressed. The utterances of conscience must - be heard. They break forth with irrepressible might. As well attempt to check the tides of Ocean, the currents of the Mississsppi, or the rushing waters of Niagara. The discussion of Slavery will proceed, wherever two or three are gathered together—by the fireside, on the highway, at the public meeting, in the church. The movement against Slavery is from the Everlasting Arm. Even now it, is gathering its forces, soon to be confessed everywhere. It may not yet be felt in the high places of office and power; but all who can put their ears humbly to the ground, will hear and compre- hend its incessant and advancing tread.
The relations of the Government of the United States—I speak of the National Gov- ernment—to Slavery, though plain and obvi- ous, are constantly misunderstood. A popular belief at this moment makes Slavery a national institution, and, of course, renders its support a national duty. The extravagance of this error can hardly be surpassed. An institu-
tion, which our fathers most carefully omitted
to name in the Constitution, which, according to the debates in the Convention, they refused to cover with any “sanction,” and which, at the original organization of the Government, was merely sectzonal, existing nowhere on the national territory, is now above all other things blazoned as national. Its supporters plume themselves as national. The old political par- ties, while upholding it, claim to be national. ° A National Whig is simply a Slavery Whig, and a National Democrat is simply a Slavery Democrat, in contradistinction to all who re- gard Slavery as a sectional institution, within the exclusive control of the States, and with which the nation has nothing to do.
As Slavery assumes to be national, so, by an equally strange perversion, Freedom is degra- ded to be sectional, and all who uphold it, under the national Constitution, share this same epithet. The honest efforts to secure its,
be grievous; but here, where the Constitution | blessings, everywhere within the jurisdiction
of Congress, are scouted as sectional; and this cause, which the founders of our National Government had so much at heart, is called sectionalism. These terms, now belonging to the commonplaces of political speech, are adopted and misapplied by most persons with- out refiectien. But herein is the power of Sla- very. According to a curious tradition of the
rench language, Louis XIV, the grand mon- arch, by an accidental error of speech, among supple courtiers, changed the gender of a noun ; but Slavery has done more than this. It has changed word for word. Ii has taught many to say national, instead of sectional, and_sec- tional instead of national.
Slavery national! Sir, this is all a mistake and absurdity, fit to take a place in some new collection of Vulgar Errors, by some other Sir Thomas Browne, with the ancient but explo- ded stories, that the toad has a stone in its head, and that ostriches digest iron. Accord- ing to the true spirit of the Constitution, and the sentiments of the Fathers, Slavery and not Freedom is sectional, while Freedom and not Slavery is natzonal. On this unanswerable proposition I take my stand, And here com- mences my argument.
The subject presents itself under two princi- pal heads; First, the true relations of the Na- tional Government to Slavery, wherein it will appear that there is no national fountain out of which Slavery can be derived, and no na- tional power, under the Constitution, by which it can be supported. Enlightened by this gen- eral survey, we shall be prepared to consider, Seconpiy, thetrue nature of the provision for the vendition of fugitives from labor, and herein especially the unconstitutional and offensive legislation of Congress in pursuance thereof.
\
I. And now for the TRUE RELATIONS OF THE
Nationat GoveRNMENT TO Siavery. These will be readily apparent, if we do not neglect well-established principles. _ IfSlavery be national, if there be any power in the National Government to uphold this in- stitution—as in the recent Slave Act—it must be by virtue of the Constitution. Nor can it be by mere inference, implication, or conjecture. According to the uniform admission of courts and jurists in Europe, again and again promul- gated in our country, Slavery can be derived only from clear and special recognition. “The state of Slavery,” said Lord Mansfield, pro- nouncing judgment in the great case of Somer- sett, “is of such a nature, that it is incapable of being introduced on any reasons moral or political, but only by positive law. It is so odious, that nothing can be suffered to support rt but posirive Law.”—(Howell’s State Trials, yol. 20, p. 82.) And a slaveholding tribunal, the Supreme Court of Mississippi, adopting the same principle, has said :
“Slavery is condemned by reason and the laws of
cipal regulations.’? — (Harry vs. Decker, Walker R.., 42.) And another slaveholding tribunal, the Su- preme Court of Kentucky, has said:
“We view this as a right existing by positive law of a municipal character, without foundation in the
law of nature or the unwritten and common law.’’— (Rankin vs. Lydia, 2 Marshall, 470.)
Of course every power to uphold Slavery must have an origin as distinct as that of Sla- very itself. Every. presumption must be as strong against such a power as against Slavery. A power so peculiar and offensive, so hostile to reason, so repugnant to the law of nature and the inborn Rights of Man; which despoils its victims of the fruits of their labor; which . substitutes concubinage for marriage; which abrogates the relation of parent and child; which, by a denial of education, abases the in- tellect, prevents a true knowledge of God, and murders the very soul; which, amidst a plau- sible physical comfort, degrades man, created in the divine image, to the level of a beast ;—such a power, SO eminent, so transcendent, so tyran- ‘ nical, so unjust, can find no place in any sys- tem of Government, unless by virtue of posztive sanction. It can. spring from no~ doubiful phrases. It must be declared by unambiguous words, incapable of a double sense.
Slavery, I now repeat, is not mentioned in the Constitution. The name Slave does not pollute this Charter of our Liberties, No “ posi- tive” language gives to Congress any power to make a Slave or to hunt. a Slave. To find even any seeming sanction for either, we must travel, with doubtful footsteps, beyond its express let-
ter, into the region of interpretation. But here are rules which cannot be disobeyed. With electric might for Freedom, they send a perva- sive influence though every provision, clause, and word of the Constitution. Each and ali make Slavery impossible as a national institu- tion. They efface from the Constitution every fountain out of which it can be derived.
First and foremost, is the Preamble. This discloses the prevailing objects and principles of the Constitution. Thisis the vestibule through which all must pass, who would enter the sz- ered temple. Here are the inscriptions by which they are earliest impressed. Here they first catch the genius of the place. Here the proclamation of Liberty is soonest heard. “ We the People of the United States,” says the Pre- amble, ‘‘in order to form amore perfect Union, establish justice, insure domestic tranquillity, pro-' vide for the common defence, promote the gen- eral welfare, and secure the blessings of Liberty to ourselves and our Posterity, do ordain and
| establish this Constitution for the United States
of America.” Thus, according to undeniable words, the Constitution was ordained, not to establish, secure, or sanction, Slavery—not to promote the special interests of slaveholders—
nature. Jt exists and can exist ondy through muni- |
not to make Slavery national, in any way, form, or manner; but to “establish justice,” “ pro-
mote the general welfare,” and “secure the blessings of Liberty.” Here surely Liberty is national.
Secondly. Next in importance to the Pream- ble are the explicit contemporaneous declara- tions in the Convention which framed the Con- stitution, and elsewhere, expressed in different forms of language, but all tending to the same conclusion. By the Preamble, the Constitution speaks for Freedom. By these declarations, the Fathers speak as the Constitution speaks. Early in the Convention, Gouverneur Morris, of Pennsylvania, broke forth in the language of an Abolitionist: “He never would concur in upholding domestic slavery. It was a nefarious institution. It was the curse of Heaven on the State where it prevailed’ Oliver Eilsworth, of Connecticut, said : “The morality or wisdom of Slavery are considerations belonging to the States themselves.” According to him, Slavery was sectional.
At a later day, a discussion ensued on the clause touching the African slave trade, which
‘reveals the definitive purposes of the Conven- tion. From the report of Mr. Madison we learn what was said. Elbridge Gerry, of Mas- sachusetis, “thought we had nothing to do with the conduct of the States as to Slavery, but we ought to be careful not to give any sanc- tion to it.’ According to these words, he re- garded Slavery as sectional, and would not make it national. Roger Sherman, of Con- necticut, “was opposed to any tax on slaves imported, as making the matter worse, because it anplied they were property.” He would not have Slavery national. After debate, the sub- ject was committed to a committee of eleven, who subsequently reported a substitute, au- thorizing “a tax on such migration or import- ation, at a rate not exceeding the average of du- ties latd on imports.” ‘This language, classify- ing persons with merchandise, seemed to imply a recognition that they were property. Mr. Sherman at once declared himself “against this part, as acknowledging men to be property, by taxing them as such under the character of slaves.” Mr. Gorham “thought Mr. Sherman should consider the duty not as implying that slaves are property, but as a discouragement to the importation of them.” Mr. Madison, in mild juridical phrase, “thought zt wrong to ad- mit in the Constitutzon the idea that there could be property in man.” After discussion, it was finally agreed to make the clause read:
“But a tax or duty may be imposed on such im- |
portation, not exceeding ten dollars for each person.” The difficulty seemed then to be removed, and the whole clause was adopted. ord demonstrates that the word “ persons” was employed in order to show that slaves, every- where under the Constitution, were always to be regarded as persons, and not as property, and thus to exclude from the Constitution all idea that there can be property in man. Remember well, that Mr. Sherman was opposed to the
This rec- |
8
clause in its original form, “as acknowledging
men to be property,” that Mr. Madison was also opposed to it, because he “thought it wrong to admit in the Constitution the idea that there could be property in man;” and that, after these objections, the clause was so amended as to exclude the idea. But Slavery cannot be national, unless this idea is distinct- ly and unequivocally admitted into the Consti- tution. ;
Nor is this all. In the Massachusetts Con- vention, to which the Constitution, when com- pleted, was submitted for ratification, a veteran of the Revolution, General Heath, openly de- clared that, according to his view, Slavery was sectional, and not national. His language was pointed. “I apprehend,” he says, “that it is not in our power to do anything for or against those who are in Slavery in the Southern States. No gentleman within these walls detests every idea of Slavery more than I do; it is generally detested by the people of this Commonwealth ; and I ardently hope the time will soon come, when our brethren in the Southern States will view it as we do, and put a stop to it; but to this we have no right to compel them. Two questions naturally arise: If we ratify the Constitution, shall we do anything by our act to hold the blacks in Slavery—or shall we become partakers of other men’s sins? I think neither of them.”
Afterwards, in the first Congress under the Constitution, on a motion, which was much de- bated, to introduce into the Impost Bill a duty . on the importation of slaves, the same Roger Sherman, who in the National Convention had opposed the idea of property in man, au- thoritatively exposed the true relations of the Constitution to Slavery. His language was, that “the Constitution does not consider these persons as property; it speaks of them as per- sons.”
Thus distinctly and constantly, from the very lips of the framers of the Constitution, we learn the falsehood of the recent assumptions in favor of Slavery and in derogation of Freedom.
Thirdly. According to a familiar rule of in- terpretation, all laws concerning the same mat- ter, 7 part materia, are to be construed to- gether. By the same reason, the grand politt- cal acts of the Nation are to be construed together, giving and receiving light from each other. Earlier than the Constitution was the Declara- tion of Independence, embodying, in immortal words, those primal truths to which our country pledged itself with its baptismal vows as a Na- tion. “We hold these truths to be self-evi- dent,” says the Nation, “that all men are cre- ated equal, that they are endowed by their Creator with certain unalienable rights; that among them are life, berty, and the pursuit of happiness; that to secure these rights govern- ments are instituted among men, deriving their just powers from the consent of the governed.” But this does not stand alone.
J
There is another national act of similar import. On the successful close of the Revolution, the Continental Congress, in an address to the people, repeated the same lofty truth. “Let it Li remembered,” said the Nation again, “that it has ever been the pride and the boast of America, that the rights for which she has con- tended were the rights of human nature. By the blessing of the Author of these rights, they haye prevailed over all opposition, and rorm THE BASIS of thirteen independent States.” Such were the acts of the Nation in its united
capacity. Whatever may be the privileges of |
States in their individual capacities, within their several local jurisdictions, no power can be attributed to the Nation, in the absence of positive, unequivocal grant, inconsistent with these two national declarations. the national heart, the national soul, the na- tional will, the national voice, which must in- spire our interpretation of the Constitution. and enter into and diffuse itself through all the na- tional legislation. Thus again is Freedom national.
. Fourthly. Beyond these is a principle of the common law, clear and indisputable, a supreme rule of interpretation from which in this case there can be noappeal. In any ques- tion under the Constitution every word is to be construed in favor of liberty. This rule, which commends itself to the natural reason, is sus- tained by time-honored maxims of our early jurisprudence. Blackstone aptly expresses it, when he says, that “the law is always ready to catch at anything in favor of liberty.”—(2. Black. Com.,94.) The rule is repeated in va- rious forms. Favores ampliand: sunt; odia restringenda. Favors are to be amplified; hateful things to be restrained. Lex Anglia est lex misericordie. The law of England is a law of mercy. Angle jura in omni casu hbertats dant favorem. The laws of England in every case shew favor to liberty. And this sentiment breaks forth in natural, though in- tense, force, in the maxim: Impius et crudelis Pa est qui libertatz non favet. He is to be adjudged impious and cruel who does not favor liberty. Reading the Constitution in the admonition of these rules, again I say Freedom isnational.
Hifthly. From a learned judge of the Su- preme Court of the United States, in an opinion of the Court, we derive the same lesson. In considering the question, whether a State can
prohibit the importation of slaves as merchan- | dize, and whether Congress, in the exercise of |
its power to regulate commerce among the States, can interfere with the slave-trade be- tween the States, a principle has been enun- ciated, which, while protecting the trade from any intervention of Congress, declares openly that the Constitution acts upon no man as property. Mr. Justice McLean says: “If slaves are considered in some of the States as mer- chandise, that cannot divest them of the lead-
Here, sir, 1s |
ing and controlling quality of persons by which they are designated in the Constitution. Fhe character of property is given them by the lo- cal law. This law is respected, and all rights under it are protected by the Federal authori- ties; but the Constitution acts upon slaves as PERSONS, and not as property.” * * * “The power over Slavery belongs to the States re- spectively. It is local in its character, and in its effects.”—(Groves vs. Slaughter, 15 Peters R., 507). Here again Slavery is sectional, while Freedom is national,
Sir, such briefly are the rules of interpreta- tion which, as applied to the Constitution, fill it with the breath of Freedom,
Driving far off each thing of sin and guilt.
To the history and prevailing setiments of the times we may turn for further assurance. In the spirit of Freedom the Constitution was formed. In this spiritour Fathers always spoke and acted. In this spirit the National Goy- ernment was first organized under Washing- ton. And here I[ recall a scene, in itself a touchstone of the period, and an example for us, upon which we may look with pure na- tional pride, while we learn anew the relations of the National Government to Slavery.
The Revolution had been accomplished. The feeble Government of the Confederation had. passed away. The Constitution, slowly ma- tured in a National Convention, discussed he- fore the people, defended by masterly pens, had been already adopted. The thirteen States stood forth a nation, wherein was unity with- out consolidation, and diversity without dis-
‘cord. ‘The hopes of all were anxiously hang-
ing upon the new order of things and the mighty procession of events. With signal unanimity Washington was chosen President. Leaving his home at Mount Vernon, he re- paired to New York, where the first Congress had already commenced its session, to assume his place as elected Chief of the Republic. On the thirtieth of April, 1789, the organiza- tion of the Government was completed by his inauguration. Entering the Senate Chamber, where the two Houses were assembled, he was informed that they awaited his readiness to re- ceive the oath of office. Without delay, at- tended by the Senators and Representatives, with friends and men of mark gathered about him, he moved to the balcony in front of the edifice. A countless multitude, thronging the open street, and eagerly watching this great es- pousal, With reverence look on his majestic face, Proud to be less, but of his godlike race.
The oath was administered by the Chancellor of New York. At this time, and in this pres- ence, beneath the uncovered heavens, Wash- ington first took this vow upon his lips: “I do solemnly swear that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, pro-
A |
10
tect, and defend the Constitution of the United
States.’ ni | Over the President, on this high occasion,
floated the National Flag, with its stripes of red | ‘flaming with freedom, broke forth in the early
and its stars on a field of blue. As his patriot eyes rested upon the glowing ensign, what cur- rents must have rushed swiftly through his soul! In the early days of the Revolution, in those darkest hours about Boston, after the bat-
tle of Bunker Hill, and before the Declaration |
of Independence, the thirteen stripes had been first unfurled by him, as the emblem of Union
among the Colonies for the sake of Freedom. |
By him, at that time, they had been named the Union Flag. Trial, struggle, and war, were now ended, and the Union, which they first heralded, was unalterably established. ‘To every beholder these memories must have been fall of pride and consolation. But looking back upon the scene, there is one circumstance which, more than all its other associations, fills the soul—more even than the suggestions of Union which I prize so much. AT THIS MOMENT, WHEN WASHINGTON TOOK HIS FIRST OATH TO SUPPORT THE CONSTITUTION OF THE Unrrep States, THE NaTionaL ENsIGN, No- WHERE WITHIN THE NATIONAL TERRITORY, COVERED A SINGLE SLAVE. ‘Then, indeed, was Slavery sectional and Freedom national.
On the sea, an execrable piracy, the trade in slaves, was still, to the national scandal, tole- rated under the national flag. In the States, as a sectional institution, beneath the shelter of local laws, Slavery unhappily found a home. But in the only territories at this time belong- ing to the Nation, the broad region of the North- west, it had already, by the Ordinance of Free- dom, been made impossible, even before the adoption of the Constitution. The District of Columbia, with its fatal incumbrance, had not yet been acquired.
The Government thus organized was Anti- Slavery in character. Washington was a slaye- holder ; but it would be unjust to his memory not to say that he was an Abolitionist also. His opinions do not admit of question. Only a short time before the formation of the National Constitution, he had declared, by letter, “ that it was among his first wishes to see some plan adopted by which Slavery may be abolished by law;” and again, in another letter, “that, in support of any legislative measure for the abolition of slavery, his suffrage should not be wanting ;” and still further, in conversation with a distinguished European Abolitionist, a travelling propagandist of Freedom, Brissot de Warville, recently welcomed to Mount Vernon, he had openly announced, that to promote this object in Virginia, “he desired the formation of a Society, and that he would second it.” By this authentic testimony, he takes his place with the early patrons of Abolition societies. —
By the side of Washington, as standing be-.
neath the national flag he swore to support the Costnitution, were illustrious men, whose
} \
|mortal in his descendants. who, as a member of the Abolition Society of
‘the laws of God, are held in Slavery by the laws
of the United States. ian “iniquity,” “a sin of crimson dye,” against
‘her prayers to Heaven will be impious,”
|-with them.
4 lives and recorded words now rise in we ment. There was John Adams, the Vice Pres- i
ident—great vindicator and final negotiator” of our national independence—whose soul,
declaration that “consenting to Slavery is a sacrilegious breach of trust,” and whose immiti- gable hostility to this wrong has been made im-_ There also was a companion in arms and attached friend, of in- comparable genius, the yet youthful Hamilton,
q
New York, had only recently united in a solemn petition for those who, “though free by
of the State.” There, too, was a noble spirit, the ornament of his country, the exemplar of courage, truth, and virtue, who, like the sun, ever held an unerring course, John Jay. Fill- ing the important post of Minister of Foreign | Affairs under the Confederation, he found time to organize the Abolition Society of New York, and to act as its President until, by the nomi- nation of Washington, he became Chief Justice
:
In his sight Slavery was: |
which ministers of the gospel should testify, and. which the Government should seek in every way to abolish. “Were I in the Legislature,” he wrote, “I would present a bill for this purpose with great care, and I would never cease moving it till it became a law or I ceased to be a mem-’ ber. Till America comes into this measure,
But they were not alone. The convictions and earnest aspirations of the country were At the North these were broad and general. At the South they found fervid utterance from slaveholders. By early and precocious efforts for “total emancipation,” the Author of the Declaration of Independence placed himself foremost among the Abolition. ists of the land. In language now familiar t all, and which can never die, he perpetuall; denounced Slavery. He exposed its perniciou, influences upon master as well as slave; de clared that the love of justice and the love 0 country pleaded equally for the slave, and tha the “abolition of domestic slavery was th greatest object of desire.” He believed tha’ the “sacred side was gaining daily recruits, and confidently looked to the young for th) accomplishment of this good work. In fitfy, sympathy with Jefferson was another honore | son of Virginia, the Orator of Liberty, Patric Henry, who, while confessing that he was | master of slaves, said: “I will not, I cann¢ justify it. However culpable my conduct, | will so far pay my devoir to virtue, as to ow, the excellence and rectitude of her precept, and lament my want of conformity to them.) At this very period, in the Legislature of Mar) land, on a bill for the relief of oppressed slave) a young man, afterwards by his consumma), learning and forensic powers the acknowlege
aul
iead of the American bar, William Pinkney, n a speech of earnest, truthful eloquence—bet- ex far for his memory than his transcendent srofessional fame—branded Slavery as iniqui- ous and most dishonorable;” “founded in a lisgraceful traffic;” “as shameful in its con- inuance as in its origin;”’ and he openly de- slared, that, “by the éternal principles of nat- iral justice, no master in the State has a right (0 hold his slave in bondage a single hour.”
Thus at this time spoke the Nation. The |
CHURCH also joined its voice. And here, amidst he diversities of religious faith, it is instructive ‘0 observe the generalaccord. The Quakers first pore their testimony. At the adoption of the Sonstitution their whole body, under the early aching of George Fox, and by the crowning sxxertions of Benezet and Woolman, had become un organized band of Abolitionists, penetrated by the conviction that it was unlawful to hold 1 fellow-man in bondage. The Methodists,
aumerous, earnest, and faithful, never ceased by |
their preachers to proclaim the same truth. Their rules in 1788 denounced in formal lan- ruage “the buying or selling of bodies and souls of men, women, and children, with an in- ‘ention to enslave them.” vreat apostle, John Wesley, were constantly repeated. On the eve of the National Conven- ion, the burning tract was circulated in which he exposes American slayery as the “vilest”’ of the world—“such Slavery as is not found among the Turks at Algiers”—and, after de- slaving “liberty the birthright of every human
sreature, of which no human law can deprive |
nim,” he pleads: “If, therefore, you have any regard to justice, (to say nothing of mercy or the revealed law of God,) render unto all their jue. Give liberty to whom liberty is due, that is, to every child of man, to every partaker of huinan nature.” At the same time, the Pres- byterians, a powerful religious body, inspired py the principles of John Calvin, in more mod- arate language, but by a public act, recorded
their judgment, recommending “to all the peo- |
ple under their care to use the most prudent measures consistent with the interest and the state of civil society, to procure eventually the final abolition of Slavery in America.” The Congregationalists of New England, also of the faith of John Calvin, and with the hatred of Slavery belonging to the great non-conformist, Richard Baxter, were sternly united against this wrong. As early as 1776, Samuel Hop- kins, their eminent leader and divine, published his tract showing it to be the Duty and Inter- terest of the American States to Kmancipate all their African slaves, and declaring that “Slavery is in every instance wrong, unright- sous, and oppressive—a very great and crying sin—there being nothing of the kind equal to it on the face of the earth”’ And, in 1791, shortly after the adoption of the Constitution, the second Jonathan Edwards, a twice-honored name, in an elaborate discourse often published,
\
The words of their |
|
ealled upon his country, “in the present blaze of light” on the injustice of Slavery, to prepare the way for “its total abolition.” This he gladly thought at hand. “If we judge of the fu- ture by the past,” said the celebrated preacher, “within fifty years from this time, it will be as shameful for a man to hold a negro slave as to be guilty of common robbery or theft.”’
Thus, at this time, the Church, in harmony with the Nation, by its leading denominations, Quakers, Methodists, Presbyterians, and Con- gregationalists, thundered against Slavery. The CoLLeces were in unison with the Church. Harvard Uniyersity spoke by the voice of Mas- sachusetts, which had already abolished Slave- ry. Dartmouth College, by one of its learned professors, claimed for the slayes “equal privi- leges with the whites”” Yale College, by its President, the eminent divine, Ezra Stiles, be- came the head of the Abolition Society of Con- necticut. And the University of William and Mary, in Virginia, testified its sympathy with this cause at this very time, by conterring upon Granville Sharp, the acknowledged chief of British Abolitionists, the honorary degree of Doctor of Laws.
The LireratTure of the land, such as then existed, agreed with the Nation, the Church and the College. Franklin, in the last literary labor of his life; Jefferson, in his Notes on Vir- ginia; Barlow, in his measured verse; Rush, in a work which inspired the praise of Clark- son; the ingenious author of the Algerine Captive—the earliest American novel, and though now but little known, one of the earli- est American books republished in London— were all moved by the contemplation of Slave- ry. “If our fellow-citizens of the Southern States are deaf to the pleadings of nature,” the latter exclaims in his work, “! will conjure them, for the sake of consistency, to cease to deprive their fellow-creatures of freedom, which their writers, their orators, representatives, and senators, and even their constitution of Goy- ernment, have declared to be the inalienable birthright of man.” A female writer and poet, earliest in our country among the graceful throng, Sarah Wentworth Morton, at the very period of the National Convention, admired by the polite society in which she lived, poured forth her sympathies also. The generous la- bors of John Jay in behalf of the crushed Afri- can inspired her muse; and in another poem, commemorating a slave who fell while vindi- cating his Freedom, she rendered a truthful homage to his inalienable rights, in words which I now quote as part of the testimony of the times:
‘Does not the voice of reason cry ? ‘Claim the first right that nature gave;
From the red scourge of bondage fly ; Nor deign to live a burdened slave.
Such, sir, at the adoption of the Constitution and at the first organization of the National Government, was the out-spoken, unequivocal
79)
12
heart of the country. Slavery was abhorred. Like the slave trade, it was regarded as tem- porary; and, by many, it was supposed that
they would both disappear together. As the |
oracles ceased or grew mute at the coming of Christ, and a voice was heard crying to mari- ners at sea. ‘Great Pan is dead,” so. at this time, Slavery became dumb, and its death seemed to be near. Voices of Freedom filled the air. The patriot, the Christian, the scholar, the writer, the poet, vied in loyalty to this cause. All were Abolitionists.
Glance now at the earliest Congress under the Constitution. From various,quarters me- morials were presented to this" body against Slavery. Among these was one from the Abo- lition Society of Virginia, wherein Slavery is pronounced “not only an odious degradation, but an outrageous violation of one of the most
essential rights of human nature, and utterly |
repugnant to the precepts of the Gospel.” Still another, of a more important character, came from the Abolition Society of Pennsylva- nia, and was signed by Benjamin Franklin, as President. This venerable man, whose active life had been devoted to the welfare of man- kind at home and abroad—who, both as phi- losopher and statesman, had arrested the ad- mization of the world—who had ravished the lightning from the skies and the sceptre from a tyrant—who, as a member of the Continental Congress, had set his name to the Declaration of Independence, and, as a member of the Na- tional Convention, had again set his name to the Constitution—in whom more, perhaps, than in any other person, was embodied the true spirit of American institutions, at once practi- cal and humane—than whom no one could be more familiar with the purposes and aspira- tions of the founders—this veteran. eighty-four years of age, within a few months of his death, now appeared by petition at the bar of that Congress, whose powers he had helped to de- fine and establish. This was the last political act of his long life. Listen now to the prayer of Franklin:
“Your memorialists, particularly engaged in at- tending to the distresses arising from Slavery, be- lieve it to be their indispensable duty to present this subject to your notice. They have observed with real satisfaction that many important and salutary powers are vested in you for promoting the welfare and securing the blessings of liberty to the people of the United States; and as they conceive that these blessings ought rightfully to be administered, ezthout distinction of color, to all descriptions of people, so they indulge themselves in the pleasing expectation, that nothing which can be done for the relief of the unhappy objects of their care, will be either ometted or delayed.” ‘‘Under these impressions, they earnestly entreat your serious attention to the subject of Sla-
very; that you will be pleased to countenance the res-’
toration of liberty to those unhappy men, who alone, in this land of Freedom, are degraded into perpetual bondage, and who, amidst the general joy of surround- ing freemen, are groaning in servile subjection ;, that you will promote mercy and justice towards this dis- tressed race and that you will step to the very verge
of the power vested in you for DISCOURAGING Urry spectes of traffic in the persons of our fellow men.’ Important words! In themselves a key-note of the times. From his grave Franklin seems still to call upon Congress to step to the very verge of the powers vested in tt to DISCOURAGE Stavery; and, in making this prayer, he pro: claims the true national policy of the Fathers. Not encouragement, but discouragement of Slavery was their rule. : Sir, enough has been said to show the senti. ment which, like a vital air, surrounded the National Government as it stepped into being, {n the face of this history, and in the absencg of any positive sanction, it is absurd to suppose that Slavery, which under the Confederation was merely sectional, was now constituted 4 national institution. Our fathers did not say, with the apostate angel, “Evil, be thou my good!” Ina different spirit they cried out to Slavery, “Get thee behind me, Satan!” But there is yet another link in the argument, In the discussions which took place in thé local conventions on the adoption of the Con: stitution, a sensitive desire was manifested t surround all persons under the Constitution with additional safeguards. Fears were ex ressed from the supposed indefiniteness of some of the powers conceded to the Nationa Government, and also from the absence of ¢ Bill of Rights. Massachusetts, on ratifying the Constitution, proposed a series of amend: ments, at the head of which was this, charaeé terized by Samuel Adams, in the Convention, as “a summary of a Bill of Rights:” “That it be explicitly declared, that all powers nol expressly delegated by the aforesaid Constitution ar reserved to the several States, to be by them exer. cised.”’ 6) Virginia, South Carolina, and North Caro lina, with minorities in Pennsylvania and Ma: ryland, united in this proposition. In pursu ance of these recommendations, the first Con: gress presented for adoption the following arti cle, which, being ratified by a proper numbei of States, became a part of the Constitution, q the 10th amendment: ; ‘ “The powers not delegated to the United States 3 the Constitution, nor prohibited by it to the States oe reserved to the States respectively. or to the he ple. ay | Stronger words could not be employed t limit the power under the Constitution, and t protect to people from all assumptions of thx National Government, particularly in deroga tion of Freedom. Its guardian character com mended it to the sagacious mind of Jefferson who said: “J consider the foundation corner stone of the Constitution of the United State to be laid upon the tenth article of the oe ments.” And Samuel Adams, ever watchfu for Freedom, said: “It removes a doubt whic) many have entertained respecting the matte) and gives assurance that, if any law made b the Federal Government shall be extended be
;
md the power granted by the Constitution, id inconsistent with the Constitution of this tate, it will be an error, and adjudged by the yurts of law to be void.”
| Beyond all question the National Govern- hent, ordained by the Constitution, is not gen- ral or universal; but special and particular. 5is a Government of limited powers. It has 0 power which is not delegated. Especially s this clear with regard to an institution like lavery. The Constitution contains no power 0 make a King or to support kingly rule. ‘Vith similar reason it may be said, that it }ontains no power to make a slave or to sup- vort a system of Slavery. The absence of all uch power is hardly more clear in one case \han in the other. But if there be no such vower, all national legislation upholding Sia- very must be unconstitutional and void. The stream cannot be higher than the fountain- head. Nay, more: nothing can come out of nothing ; the stream cannot exist, if there be ino springs from which it is fed.
| |
Iclearness, review now this argument, and gather it together. Considering that Slavery lis of such an offensive character that it can find sanction only in “positive law,’ and that it has no such “positive” sanction in the Con- istitution; that the Constitution, according to ‘its Preamble, was ordained “to establish jus- ‘tice? and “secure the blessings of liberty;” |that, in the Convention which framed it, and | also elsewhere at the time, it was declared not ito sanction Slavery; that, according to the | Declaration of Independence and the Address | of the Continental Congress, the Nation was | dedicated to “liberty” and the “rights of hu man nature ;” that, according to the principle |
interpreted openly, actively, and perpetually, for Freedom; that, according to the decision
tion nowhere upholds property in man.
all within its influence. proposed by the first Congress, as follows:
At the risk of repetition, but for the sake of
s of the common law, the Constitution must be
of the Supreme Court, it acts upon slaves, not as property, but as peRsons; that, at the first organization of the National Government under Washington, Slavery had no national favor, and existed nowhere on the national territo- | stantly cease. ry, beneath the national flag, but was openly condemned by the Nation, the Church, the Colleges, and Literature of the time; and, final- ly, that, according to an Amendment of the Constitution, the National Government can only exercise powers delegated to it, among which there is none to support Slavery; considering these things, sir, it is impossible to avoid the single conclusion that Slavery is in no respect a national institution, and that the Constitu-
But there is one other special provision of the
|. Constitution, which I have reserved to thisstage, not so much from its superior importance, but because it may fitly stand by itself. This alone, if practically applied, would carry Freedom to It is an amendment
18
“No person shall be deprived of life, Ziderty, or property, wethout due process of law.” Under this egis the liberty of every person within the national jurisdiction is’ unequivo- cally placed. I say of every person. Of this there can be no question. The word “ person” in the’ Constitution embraces every human being within its sphere, whether Caucasian, Indian, or African, from the President to the slave. Show mea person, no matter what his condition, or race, or color, within the national jurisdiction, and I confidently claim for him this protection. The natural meaning of the clause is clear, but a single fact of its history places it in the broad light of noon. As origi- nally recommended by North Carolina and Virginia, it was restrained to the freeman. Its language was, “No freeman ought to be de- prived of his life, liberty, or property, but by the law of the land.” In rejecting this limita- tion, the authors of the amendment revealed their purpose, that no person, under the Na- tional Government, of whatever character, shall be deprived of liberty without due process of law; that is, without due presentment, in- dictment, or other judicial proceedings. Here by this Amendment is an express guaranty of Personal Liberty, and an express prohibition against its invasion anywhere, at least within the national jurisdiction. |
Sir, apply these principles, and Slavery will again be as when Washington took his first oath as President. The Union Flag of the Re- public will become once more the fiag of Free- dom, and at all points within the national ju- risdiction will refuse to cover a slave. Beneath its beneficent folds, wherever it is carried, on land or sea, Slavery will disappear, like darkness under the arrows of the ascending sun—like the Spirit of Evil before the Angel of the Lord.
{n all national territories Slavery will be impossible. .
On the high seas, under the national flag, Slavery will be impossible.
In the District of Columbia Slavery will in-
|
Inspired by these principles, Congress can give no sanction to Slavery by the admission of new Slave States.
Nowhere under the Constitution, can the Nation, by legislation or otherwise, support Slavery, hunt slaves, or hold property in man.
Such, sir, are my sincere convictions. Ac- cording to the Constitution, as I understand it, in the light of the Past and of its true prin- ciples, there is no other conclusion which is rational or tenable; which does not defy the authoritative rules of interpretation; which does not falsify indisputable facts of history ; which does not affront the public opinion in which it had its birth; and which does not dis- honor the memory of the Fathers. And yet these convictions are now placed under formal ban by politicians of the hour. The generous
|
14 i
sentiments which filled the early patriots, and which impressed upon the Government they founded, as upon the coin they circulated, the image and superseription of Liperty, have lost their power. The slave-masters, few in number, amounting to about 300,000, accord- ing to the recent census, have succeeded in dictating the policy of the National Govern- ment, and have written Suavery on its front. And now an arrogant and unrelenting ostra-
cism is applied, not only te all who express his. ; | claimed him as a bondman. The claim was
themselves against Slavery, but to every man who is unwilling to be the menial of Slavery. A novel test for office ‘is introduced, which would have excluded all the Fathers of the
Republic—even Washington, Jefferson, and |
Franklin!. Yes, sir. Startling it may be; but
indisputable. Could these revered demigods |
of history once again descend upon earth, and mingle in our affairs, not one of them could receive @ nomination from the National Convention of either of the two old political parties! Out of the convictions of their hearts and the utterances of their lips against Sla- very they would be condemned.
This single fact reveals the extent to which the National Government has departed from its true. course and its great examples. For myself, I know no better aim under the Con- stitution, than to bring the Government back to the precise position on this question which it occupied on the auspicious morning of its first organization under Washington ;
Cursus iterare Relictos; that the sentiments of the Fathers may again prevail with our rulers, and that the National Flag may nowhere shelter slavery.
To such as count this aspiration unreasona- ble let me commend a renowned and life-giving precedent of English history. As early as the days of Queen Elizabeth, a courtier had boast- ed that the air of England was too pure for a slave to breathe, and the common law was said .to forbid Slavery. And yet in the face of this vaunt, kindred tothat of our Fathers, and so truly honorable, slaves were introduced from the West Indies. The custom of slavery grad- ually prevailed. Its positive legality was af- firmed, in professional opinions, by two eminent lawyers, Talbot and Yorke, each afterwards Lord Chancellor. It was also affirmed on the bench by the latter as Lord Hardwicke. Eng- land was already a Slave State. The follow- ing advertisement, copied from a London news- paper, the Public Advertiser, of Nov. 22d, 1769, shews that the journals there were dis- figured as some of ours, even in the District of Columbia:
‘To be sold, a black girl, the property of J. B., eleven years of age, who is extremely handy, works at her needle tolerably, and speaks English perfectly well; is of an excellent temper and willing disposi- tion. Enquire of her Owner at the Angel Inn, behind St. Clement’s Church, in the Strand.”
t }
| |
At last, only three years after this adver tisement, in 1772, the single question of the le- gality of Slavery was presented to Lord Mans: field, on a writ of Habeas Corpus. A poor ne= geo, named Somersett, brought to England as
+
,a slave, became ill, and with an inhumanity disgraceful even to slavery, was turned adrift
upon the world. Through the charity of an” estimable man, the eminent A bolitionist, Gran- ville Sharpe, he was restored to health, when his unfeeling and avaricious master again’
repelled. After an elaborate and protracted) discussion in Westminster Hall; marked by
| rare learning and ability, Lord Mansfield, with
discreditable reluctance, sullying his great ju- dicial name, but in trembling obedience to the genius of the British Constitution, pronounced a decree which made the early boast a practi- cal verity, and rendered Slavery forever impos- sible in England. More than fifteen thousand persons, at that time held as slaves in English air—four times as many a3 are now found in this District—stepped forth in the happiness and dignity of freemen.
With this guiding example let us not des- pair. The time will yet come when the boast of our Fathers will be made a practical verity also, and Court or Congress, in the spirit of this British judgment, will proudly declare that nowhere under the Constitution can man hold property in man. For the Republic such a decree will be the way of peace and safety. As Slavery is banished from the national ju- risdiction, it will cease to vex our national politics. It may linger in the States as a lo- cal institution ; but it will no longer engender national animosities, when it no longer de- mands national support.
II. From this general review of the relations of the National Government to Slavery, I pass to the consideration of the TRUE NATURE OF THE PROVISION FOR THE SURRENDER OF FU- GITIVES FROM LABOR, embracing an examina- tion of this provision in the Constitution, and especially of the recent act of Congress in pur- suance thereof. And here, as I begin this dis- cussion, let me bespeak anew your candor. Not in prejudice, but in the light of history and of reason, let us consider this subject. The way will then be easy and the conclusion certain.
Much error arises from the exaggerated im- portance now attached to this provision, and from the assumptions with regard to its origin | and primitive character. It is often asserted | that it was suggested by some special difficulty, which had become practically and PU felt, anterior to the Constitution. But this is | one of the myths or fables with which the sup- porters of Slavery have surrounded their false god. Inthe Articles of Confederation, while provision is made for the surrender of fugitive criminals, nothing is said of fugitive slaves or servants ; and there is no evidence in any quar-
ter, until after the National Convention, of any hardship or solicitude on this account. No previous voice was heard to express desire for any provision on the subject. The story to ithe contrary is a modern fiction.
I put aside as equally fabulous the common ‘saying that this provision was one of the origi- nal compromises of the Constitution and an essential condition of Union. Though sanc- tioned by eminent judicial opinions, it will be found that this statement has been hastily made, without any support in the records of the Conyention, the only authentic evidence of the compromises; nor will it be easy to find ‘any authority for it in any contemporary doc- ‘ument, speech, published letter or pamphlet of any kind. Itis true that there were compro- mises at the formation of the Constitution, which were the subject of anxious debate; but this was not of them.
There was a compromise between the small and large States, by which equality was secur- ed to all the States in the Senate. There was ‘another compromise finally carried, under threats from the South, on the motion of a New England member, by which the Slave States
were allowed Representatives according to the whole number of free persons, and “three-fifths of all other persons,” thus securing political power on account of their slaves, in considera- tion that direct taxes should be apportioned in the same way. Direct taxes have been impos- ed at only four brief intervals. The political power has been constant, and, at this moment, ‘sends twenty-one members to the other House. There was a third compromise, which can- not be mentioned without shame. It was that hateful bargain by which Congress were re- strained until 1808 from the prohibition of the foreign slave trade, thus securing, down to that period, toleration for crime. This was pertina- ciously pressed by the South, even to the extent of an absolute restraint on Congress. John Rutledge said: “If the Convention thinks North Carolina, South Carolina, and Georgia, will ever agree to this plan [the Federal Con- stitution] unless their right to import slaves be untouched, the expectation is vain. The people ‘of those States will never be such fools as to give up so important an interest.” Charles Pinckney said: “South Carolina can never re- ceive the plan [of the Constitution] if it pro- hibits the slave trade.” Charles Cotesworth Pinckney “thought himself bound to declare candidly that he did not think South Carolina would stop her importation of slaves in any ‘short time.” The efirontery,of the slaveholders was matched by the sordidness of the Eastern members, who yielded again. Luther Martin, ‘the eminent member of the Convention, in his contemporary address to the Legislature of Maryland, has described the compromise. “I found,’ he says, “that the Eastern members, notwithstanding their aversion to Slavery, were very willing to indulge the Southern States, at
15
least with a temporary liberty to prosecute the slave trade, provided the Southern States would in their turn gratify them, by laying no restric- tion on navigation acts.” ‘The bargain was struck, and at this price the Southern States gained the detestable indulgence. At a subse- quent day, Congress branded the slave trade as piracy, and thus, by solemn legislative act, ad- judged this compromise to be felonious and wicked.
Such are the three chief original compromi- ses of the Constitution and essential conditions of Union. The case of fugitives from labor is not of these. During the Convention, it was not in any way associated with these. Nor is there any evidence, from the records of this body, that the provision on this subject was re- garded with any peculiar interest. As its ab- sence from the Articles of Confederation had not been the occasion of solicitude or desire, anterior to the National Convention, so it did not enter into any of the original plans of the Constitution. It was introduced at a late period of the Convention, and with very little and most casual discussion, adopted. A few facis will show how unfounded are the recent as- sumptions.
The National Convention was convoked to meet at Philadelphia on the second Monday in May, 1787. Several members appeared at this time; but a majority of the States not being represented, those present adjourned from day to day until the 25th, when the Con- vention was organized by the choice of George Washington, as President. On the 28th, a few brief rules and orders were adopted. On the next day they commenced their great work.
On this day Edmund Randolph, of slavehold- ing Virginia, laid before the Convention a se- ries of sixteen resolutions, containing his plan for the establishment of a new National Goy- ernment. Here was no allusion to fugitive slaves.
On the same day, Charles Pinckney, of slave- holding South Carolina, laid before the Con- vention what is called “a draft of a Federal Government, to be agreed upon between the free and independent States of America,” an elaborate paper, marked by considerable mi- nuteness of detail. Here are provisions, bor- rowed from the Articles of Confederation, se- curing to citizens of each State equal privi- leges in the several States; giving faith to the public records of the States; and ordaining the surrender of fugitives from justice. But this draft, though from the flaming guardian of the slave-interest, contained no allusion to fugitive slaves.
In the course of the Convention other plans were brought forward; on the 15th of June a series of eleven propositions by Mr. Patterson, of New Jersey, “so as to render the Federal Constitution adequate to the exigencies of Gov- ernment, and the preservation of the Union ;”
16
on the 18th of June, eleven propositions by Mr. Hamilton, of New York, “containing his ideas of a suitable plan of Government for the United States;” and on the 19th June, Mr. Randolph’s resolutions, originally offered on the 29th May, “as altered, amended, and agreed to in Committee of the Whole House.
On the 26th, twenty-three resolutions, already adopted on different days in the Convention, were referred to a “‘Committee of Detail,” to be reduced to the form of a Constitution.
finished draft of a Constitution. And yet in
all these resolutions, plans, and drafts, seven |
in number, proceeding from eminent members and from able committees, no allusion was made to fugitive slaves. For three months the Conyention was in session, and not a word ut- tered on this subject.
At last, on the 28th August, as the Con- vention.was drawing to a close, on the consid- eration of the article providing for the privi- leves of citizens in different States, we meet the first reference to this matter, in words worthy of note: “Gen. [Charles Cotesworth| Pinckney was not satisfied with it. He SEEMED to wish some provision should be included in favor of property in slaves.” he made no proposition. Unwilling to shock the Convention, and uncertain in his own mind, he only seemed to wish such a provision. In
this vague expression of a vague desire this |
idea first appeared. In this modest, hesitating phrase is the germ of the audacious, unhesita- ting Slave Act. Here is the little vapor, which
has since swollen, as.in the Arabian tale, to the |
power and dimensions of a giant. The next article under discussion provided for the sur- render of fugitives from justice. Mr. Butler and Mr. Charles Pinckney, both from South Carolina, now moved openly to require “ fugi- tive slaves and servants to be delivered up like criminals.’ Here was no disguise. With Ham- let it was now said in spirit—
Seems, madam, nay, itis; I know not seems. But the very boldness of the effort drew at- tention and opposition. Mr. Wilson, of Penn- sylvania, at once objected: “This would oblige the Executive of the State to do it at the pub- lic expense.” .Mr. Sherman, of Connecticut, ‘saw no more propriety in the public seizing and surrendering a slave or servant than a horse.’ Under the pressure of these objections the. offensive proposition was quietly with- drawn. The article for the surrender of crim- inals was then adopted. On the next day, August 29th, profiting by the suggestions al- ready made, Mr. Butler moved a proposition— substantially like that now found in the Con- stitution—not directly for the surrender of “fugitive slaves,” as originally proposed, but of “fugitives from seryice or labor,” which, without debate or opposition of any kind, was unanimously adopted.
The provision, which showed itself thus tar-
On | the 6th August this committee reported the |
But |
dily and was so slightly noticed in the Natio al Convention, was neglected in much of the contemporaneous discussion before the people. In the Conventions of South Carolina, Nort Carolina, and Virginia, it was commended a securing important rights, though on this pom there was a difference of opinion. In the Vir- ginia Convention, an eminent character, Mr. George Mason, with others, expressly declared that there was “no security of property coming within this section.” In the other Conventions it was disregarded. Massachusetts, while ex- hibiting peculiar sensitiveness at any respon- sibility for Slavery, seemed to view it with un- concern, The Federalist, (No. 42,).in its classi- fication of the powers of Congress, describes and groups a large number as those ‘ which provide for the harmony and proper inter- course among the States,” and therein speaks of the power over public records, standing next in the Constitution to the provision on fugitives from labor: but it fails to recognise the latter among the means of promoting that “harmony and proper intercourse ;” nor does it anywhere allude to the provision.
The indifference which had thus far attend- ed this subject still continued. The earliest act of Congress, passed in 1793, drew little at- tention. It was not originally suggested by any difficulty or anxiety touching fugitives from | labor ; nor is there any record of the times, in” debate or otherwise, showing that any special importance was attached to its provisions in this regard. The attention of Congress had | been directed to fugitives from justice, and, | with little deliberation, it undertook in the same bill to provide for both classes of cases.” In this accidental manner was legislation on this subject first attempted. | |
There is no evidence that fugitives were often — seized under this act. From a competent in- quirer we learn that twenty-six years elapsed before a single slave was surrendered under it in any Free State. It is certain that, in a case at Boston, towards the close of the last century,
it Bie eh eee
—y
-—
illustrated by Josiah Quincy as counsel, the crowd about the magistrate at the examination © quietly and spontaneously opened a way for the fugitive, and thus the Act failed to be exe- cuted. It is also certain that, in Vermont, at the beginning of the century, a Judge of the Supreme Court of this State, on application for the surrender of an alleged slaye, accompanied — by documentary evidence, refused to comply, unless the master could show a Bill of Sale from the Almighty. But even these cases passed without public comment. 7 In 1801, the subject was introduced into the House of Representatives by an effort for an- other Act, which, on consideration, was reject-— ed. Ata later day, in 1817-18, though still disregarded by the country, .it seemed to excite — a short-lived interest in Congress. A bill to provide more effectually “for reclaiming ser-— vants and slayes, escaping from one State into
* 17
another,” was introduced into the House of Representatives by Mr. Pindall, of Virginia, was considered for several days in Committee of the Whole, amended and passed by this body. In the Senate, after much attention and warm debate, it was also passed with amend- ments. But on its return to the House for the adoption of the amendments, it was dropped. This effort, which, in the discussions of this subject, has thus far been unnoticed, is chiefly remarkable as the earliest recorded evidence of the unwarrantable assertion, now so common, that this provision was originally of vital im- portance to the peace and harmony of the country.
At last, in 1850, we have another Act, passed by both Houses of Congress and approved by the President, familiarly known as the Fugi- tive Slave Bill. AsI read this statute I am filled with painful emotions. The masterly subtlety with which it is drawn, might chal- lenge admiration, if exerted for a benevolent purpose; but in an age of sensibility and re- finement, a machine of torture, however skilful and apt, cannot be regarded without horror. Sir, in the name of the Constitution which it _ violates; of my country which it dishonors; of
Humanity which it degrades; of Christianity which it offends, I arraign‘this enactment, and now hold it up to the judgment of the Senate and the world. Again | shrink from no re- sponsibility. I may seem to stand alone; but all the patriots and martyrs of history, all the Fathers of the Republic, are with me. Sir, there is no attribute of God which does not unite against this Act.
But I am to regard it now chiefly as an in- fringement of the Constitution. And here its outrages, flagrant as manifold, assume the deep- est dye and broadest character only when we consider that by its language it is not restrained to any special race or class, to the African or to the person with African blood ; but that any inhabitant of the United States, of whatever complexlon or condition, may be its victim. Without discrimination of color even, and in violation of every presumption of freedom, the Act surrenders all, who may be claimed as ‘© owing service or labor” to the same tyran-' nical proceedings. If there be any, whose sym- pathies are not moved for the slave, who do not cherish the rights of the humble African, strug- gling for divine Freedom, as warmly as the rights of the white man, let him consider well that the rights of all are equally assailed. «‘ Nephew,” said Algernon Sidney in prison, on the night before his execution, “I value not my own life a chip, but what concerns me is that the law which takes away my life may hang every one of you, whenever it is thought convenient.””
Though thus comprehensive in its provisions and applicable to all, there is no safeguard of Human Freedom which the monster Act does not set at naught.
It commits this great question—than which none is more’sacred in the law—not toa solemn trial; but to summary proceedings.
it commits this question—not to one of the high tribunals of the land—but to the unaided judgment of a single petty magistrate.
Tt commits this question to a magistrate, ap- pointed, not by the President with the consent of the Senate, but by the Court; holding his office, not during good behaviour, but merely during the will of the Court; and receiving, not a regular salary, but fees according to each in- dividual case.
It authorizes judgment on ea parte evidence, by affidavits, without the sanction of cross-ex- amination.
ft denies the writ of Habeas Corpus, ever known as the Palladium of the citizen.
Contrary to the declared purposes of the fra- mers of the Constitution, it sends the fugitive back “at the public expense.”
Adding meanness to the violation of the Con- stitution, it bribes the Commissioner by a double fee to pronounce against Freedom. If he dooms a man to Slavery, the reward is ten dollars; but, saving him to Freedom, his dole is five dollars.
The Constitution expressly secures the “ free exercise of religion; 7’ but this Act visits with unrelenting penalties the faithful men and women, who may render to the fugitive that countenance, succor, and shelter, which in their conscience *‘ religion ”? seems to require.
As it is for the public weal that there should be an end of suits, so by the consent of civil- ized nations, these must be instituted within fixed limitations of time ; but this Act, exaltine Slavery above even this practical principle of universal justice, ordains proceedings against Freedom without any reference to lapse of time.
_Glancing only at these points, and not stop- ping for argument, vindication, or illustration,
come at once upon the two chief radical ob- jections to this Act, identical in principle with those brought by our Fathers against the Brit- ish Stamp Act; first, that it is a usurpation by Congress of powers not granted by the Consti- tution, and an infraction of rights secured to the States; and, secondly, that it takes away Trial by Jury in a question of Personal Liberty and a suit at common law. Hither of these objec- tions, if sustained, strikes at the very root of the
ct. That it is obnoxious to both seems be- yond doubt.
But here, at this stage, I encounter the diffi- culty, that these objections have been already foreclosed by the legislation of Congress and by the decisions of the Supreme Court; that as early as 1793 Congress assumed power over this subject by an Act, which failed to se- cure Trial by Jury, and that the validity of this Act under the Constitution has been af-
18
firmed by the Supreme Court. On examina- tion this difficulty will disappear.
The Act of 1793 proceeded from a Congress that had already recognised the United States Bank, chartered by a previous Congress, which, though sanctioned by the Supreme Court, has been since in high quarters pronounced uncon- stitutional. If it erred as to the Bank, it may have erred also as to fugitives from labor. But the very Act contains a capital error on this very subject, so declared by the Supreme Court, in pretending to vest a portion of the judicial power of the Nation in State officers. This error takes from the Act all authority as an in- terpretation of the Constitution. J dismiss it.
The decisions of the Supreme Court are en- titled to great consideration, and will not be mentioned by me except with respect. Among the memories of my youth are happy days in which I sat at the feet of this tribunal, while Marsuaty presided, with Srory by his side. The pressure now proceeds from the case of Prigg vs. Pennsyluania, (16 Peters, 539,) wherein the power of Congress over this mat- ter is asserted. Without going into any minute criticism of this judgment, or considering the extent to which it is extra-judicial, and there- fore of no binding force, all which has been al- ready done at the bar in one State, and by an able court in another; but conceding to it a certain degree of weight as a rule to the judi- ciary on this particular point, still it does not touch the grave question arising from the de- nial of Trial by Jury. This judgment was pro- nounced by Mr. Justice Story. From the in- teresting biography of this great jurist, recently published by his son, we derive the distinct statement that the necessity of Trial by Jury was not before the Court; so that, in the esti- mation of the judge himself, it was still an open question. Here are the words:
“One prevailing opinion, which has created erdat prejudice against this judgment, is, that it denies the right of a person claimed as a fugitive from service or labor to a trial by jury. This mistake arises from supposing the case to involve the general question as to the constitutionality of the Act of 1793. But in fact no such question was in the case; and the argu- ment that the Act of 1793 was unconstitutional, be- cause it did not provide for a trial by jury according to the requisitions of the sixth article in the amend- ments to the Constitution, having been suggested to my father on his return from Washington, he replied that this question was not argued by counsel nor con-
sidered by the Court, and that he should still consider it an open one.”
But whatever may be the influence of this judgment as a rule to the judiciary, it cannot arrest our duty as legislators. And here I adopt with entire assent the language of President Jackson, in his memorable Veto, in 1832, of the Bank of the United States. T'o his course was opposed the authority of the Supreme Court, and this is his reply :
“Tf the opinion of the Supreme Court covers the
whole ground ofthis Act, it ought not to control the co-ordinate authorities of this Government. The
Congress, the Execeutive, and the Court. must each for itself be guided by its own opinion of the Consti- tution. Hach public officer, who takes an oath to sup- port the Constitution, swears that he will support tt as he understands tt, and not as it is understood by oth- ers. It is as much the duty of the House of Repre- sentatives, of the Senate, and of the President, to de- cide upon the constitutionality of any bill or resolu- tion, which may be presented to them for passage or approval, as it is of the Supreme Judges when it may be brought before them for judicial decision. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Execu- tive, when acting in their legislative capacities, but to have only such influence as the force of their rea- soning may deserve.”
With these authoritative words of Andrew Jackson I dismiss this topic. The early legis- lation of Congress and the decisions of the Su- preme Court cannot stand in our way. I ad- vance to the argument.
(1.) Now, first, of the power of Congress over this subject.
The Constitution contains powers granted to Congress, compacts between the States, and prohibitions addressed to the Nation and to the States. A compact or prohibition may be ac- companied by a power ; but not necessarily, for it is essentially distinct in its nature. And here the single question arises, whether the Constitution, by grant, general or special, con- fers upon Congress any power to legislate’on the subject of fugitives from labor.
The whole legislative power of Congress is derived from two sources; first from the gen- eral grant of power, attached to the long cata- logue of powers, “to make all laws which shall be necessary and. proper for the carrying into execution the foregoimg powers and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof;”? and secondly, from special grants in other parts of the Consti- tution. As the provision in question does not appear in the catalogue of powers and does not purport to vest any power in the Government of the United States, or in any department or officer thereof, no power to legislate on this sub- ject can be derived from the general grant. Nor can any such power. be derived from any special grant in any other part of the Constitu- tion; for none such exists. The conclusion must be, that no power is delegated to Congress over the surrender of fugitives from labor.
In all contemporary discussions and com- ments, the Constitution was constantly justified and recommended, on the ground that the pow- ers not given to the Government were with- held from it. If under its original provisions any doubt could have existed on this head, it was removed, so far as language could remove it, by the Tenth Amendment, which, as we have already seen, expressly declares that, *‘ the powers not delegated to the United States by the Constitution, nor prohibited by it to the: States, are reserved to the States respectively
19
or to the people.”? Here on the simple text of the Constitution I might leave this ques- tion. But its importance justifies a more ex- tended examination in a two-fold light; jfirsé, in the history of the Convention, revealing the unmistakeable intention of its members; and secondly, in the true principles of our Political System, by which the powers of the Nation and of the States are respectively guarded.
Look first at the history of the Convention. The articles of the old Confederation, adopted by the Continental Congress 15th Nov., 1777, though containing no reference to fugitives from labor, had provisions substantially like those in
‘our present Constitution, touching the privi- Jeges of citizens in the several States, the sur- render of fugitives from justice and the credit due to the public records of States. But, since the Coniederation had no powers not ‘ ex- pressly delegated,” and as no power was dele- egated to legislate on these matters, they were nothing more than articles of treaty or compact. Afterwards at the National Convention, these three provisions found a place in the first re- ported draft of a Constitution, and they were arranged in the very order which they occu- pied in the Articles of Confederation. The _ elause relating to public records stood lust. Mark this fact.
When this clause, being in form merely a compact, came up for consideration in the Con- vention, various efforts were made to graft upon it a power. ‘This was on the very day of the adoption of the clause relating to fugitives from labor. Charles Pinckney moved to com- mit it with a proposition fora power to estab- lish uniform laws on the subject of bankruptcy and foreign bills of exchange. Mr. Madison was in favor of a power for the execution of judgments in other States. Gouverneur Mor- tis also on the same day moved to commit a further proposition for a power “‘ to determine the proof and effect of such acts, records, and proceedings.”” Amidst all these efforts to as- sociate a power with this compact, it is clear that nobody supposed that any such already
-existed. This narrative places the views of the Convention beyond question.
The compact regarding public records, to- gether with these various propositions, was re- ferred to a committee, on which were Mr. Randolph and Mr. Wilson, with John Rut- ledge, of South Carolina, as chairman. After several days, they reported the compact with a power in Congress to prescribe by general laws the manner in which such records shall be proved. A discussion ensued, in which Mr. Randolph complained that the “ definition of the powers of the Government was so loose as to give it opportunities of usurping all the State powers. He was for not going further
_ than the report, which enables the Legvslature to provide for the effect of judgments.’ ‘The
was then adopted, and is now a part of the Constitution. In presence of this solicitude for the preservation of ‘‘ State powers,’’ even while considering a proposition for an express power, and also of the distinct statement of Mr. Randolph, that he ** was not for going fur- ther than the report,”’ it is evident that the idea could not then have occurred that a power was coupled with the naked clause of compact on fugitives from labor.
Ata later day, the various clauses and arti- cles severally adopted from time to time in Convention were referred to a committee of re- vision and arrangement, that they might be re- duced to form as a connected whole. Here another change was made. 'The clause relating to public records, with the power attached, was taken from its original place at the bottom of the clauses of compact, and promoted to stand first in the article, as a distinct section, while the other clauses of compact, concerning citizens, fugitives from justice and fugitives from labor, each and all without any power attached, by a natural association compose but a single section, thus:
“ ARTICLE IV.
“Section 1. Full faith and credit shall be given in each States to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws preseribe the manner vn which such acts, records, and proceedings shall be proved, and the effect thereof.
“Section 2. The citizens of each State shall be en- titled to all privileges and immunities of citizens in the several States.
‘“‘ A person charged in any State with treason, fel- ony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.
‘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.
“Srcrion 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junc- tion of two or more States, or parts of States, with- out the consent of the Legislatures of the States con- cerned as weil as of the Congress.
“ The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.
“Srotion 4. The United States shall guarantee to every State in this Union a republican form of Government, and shall protect each of them against invasion, and on application of the Legislature, or of the Executive, (when the Legislature cannot be con- vened) against domestic violence.”
Here is the whole article. It will be ob- served that the third section immediately fol- lowing the triad section of compacts, contains two specific powers, one with regard to new
clause of compact with the power attached! States, and the other with regard to the Public
20
Treasury. Thesé are naturally grouped to- gether, while the fourth section of this same ‘article, which is distinct in its character, is placed by itself. In the absence of all specific information, reason alone can determine why this arrangement was made. But the conclu- sion is obvious, that, in the view of the Com- mittee and of the Convention, each of these sections differs from the others. ‘The first con- tains a compact with a grant of power. The second contains provisions, all of which are simple compacts, and two of which were confessedly simple compacts in the old Articles of Confederation, from which, unchanged in let- ter or spirit, they were borrowed. The third is a two-fold grant of power to Congress, with- out any compact. The fourth is neither power nor compact merely, nor both united, but a sol- emn injunction upon the National Govern- ment to perform an important duty.
The framers of the Constitution were wise and careful men, who had a reason for what they did and who understood the language which they employed. They did not, after discussion, incorporate into their work any su- perfluous provision; nor did they without de- sign adopt the peculiar arrangement in which it appears. In adding to the record compact the express grant of power, they testified not only their desire for such power in Congress ; but their conviction, that. without an express grant, it would not exist. But if an express grant was necessary in this case, it was equally necessary in all the other cases. KEapressum facit cessare tacittum. Especially, in view of its odious character, was it necessary in the case of fugitives from labor. In abstaiming from any such grant, and then, in grouping the bare compact with other similar compacts, separate from every grant of power, they have most significantly testified their purpose. They not only decline all addition of any such power to the compact, but to render misapprehen-
sion impossible, to make assurance doubly |
sure, to exclude any contrary conclusion, they punctiliously arrange the clauses, on the prin- ciple of noscitur a soctis, so as to distinguish all the grants of power, but especially to make the new grant of power, in the case of public records, stand forth in the front by itself, sev- ered from the mere naked compacts with which it was originally associated.
Thus the records of the Convention show that the founders understood the necessity of powers in certain cases, and, on consideration, most jealously granted them. A closing ex- ample will strengthen the argument. Congress is expressly empowered “ fo establish an uniform rule of Naturalization, and uniform laws on the subject of Bankruptcies, throughout the United . States”? Without this provision these two subjects would have been within the control of the States, the Nation having no power to es- tablish an uniform rule thereupon, Now, in-
stead of the existing compact on fugitives from labor, it would have been easy, had any such desire prevailed, to add this case to the clause on Naturalization and Bankruptcies, and to empower Congress To ESTABLISH AN UNIFORM RULE FOR THE SURRENDER OF FUGITIVES FROM LABOR THROUGHOUT THE UNITED STATES. Then, of course, whenever Congress under- took to exercise the power, all State control of the subject would have been superseded. The National Government would have been consti- tuted, like Nimrod, the mighty Hunter, with power to gather the huntsmen, to halloo the pack, and to direct the chase of men, ranging at will, without regard to boundaries or juris- dictions, throughout all the States. But no — person in the Convention, not one of the reck- less partisans of slavery, was so audacious as to make this proposition. Had it been distinctly made, it would have been distinctly denied.
The fact that the provision on this subject was adopted unanimously, while showing the little importance attached to it in the shape it finally assumed, testifies also that it could not have been regarded as a source of JVational power over Slavery. It will be remembered, that, among the members of the Convention, were Gouverneur Morris, who had said, that he “‘ never would concur in upholding domestic slavery ;’’? Elbridge Gerry, who thought “ we ought to be careful nor to give any sanction to it; Roger Sherman, who was opposeD to any clause “ acknowledging men to be prop- erty ;”? and Mr. Madison, who “ thought it wrone to admit in the Constitution the idea that there could be property in man.’ In the face of these unequivocal statements, it is — absurd to suppose that they consented unani- mously to any provision by which the National Government, the work of ther hands, dedi- cated to Freedom, could be made the most of- fensive instrument of slavery.
Thus much for the evidence from the his- tory of the Convention. But the true princi- ples of our Political System are in harmony with this conclusion of history ; and here let me say a word of State Rights.
It was the purpose of our fathers to create a National Government and to endow it with ad- equate powers. They had known the perils of imbecility, discord, and confusion, during the uncertain days of the Confederation, and desired a Government which should be a true bond of Union and an efficient organ of the national interests at home and abroad. But while fashioning this agency, they fully recog- nised the Governments of the States. To the nation were delegated high powers, essential to the national interests, but specific in charac- ter and limited in number. To the States and to the people were reserved the powers, general in character and unlimited in number, pot delegated to the Nation or prohibited to the
tates, '
21
The integrity of our Political System de- pends upon harmony in the operations of the Nation and of the States. While the Na- tion within its wide orbit is supreme, the States move with equal supremacy in their
‘own. But from the necessity of the case the supremacy of each in its proper place excludes the other. The Nation cannot exercise rights reserved to the States; nor can the States in- terfere with the powers of the Nation. Any such action on either side is a usurpation. These principles were distinctly declared by Mr. Jefferson, in 1798, in words often adopted since; and which must find acceptance from all parties ;.
“That the several States composing the United States of America are not united upon the principle of unlimited submission to the General Government; but that by compact, under the style and title of the Constitution of the United States and of the amend- ments thereto, they constituted a General Govern- ment for special purposes, delegated to that Govern- ment certain definite powers, reserving each State to itself, the residuary mass of right to their own self- government, and that wheresoever the General Gov- ernment assumes undelegated powers, tts acts are un- authorized, void, and of no force.”
But I have already amply shown to-day that Slavery is in no respect national—that it 1s not within the sphere of national activity—that it has no “ positive”’ support in the Constitution, and that any interpretation thereof inconsistent with this principle would be abhorrent to the sentiments of its founders. Slavery is a local institution, peculiar to the States and under the guardianship of State Rights. It is impossible, without violence, at once to the spirit and to the letter of the Constitution, to attribute to Con- gress any power to legislate, either for its abo- lition in the States or its support anywhere. JVon-Intervention is the rule prescribed to the Nation. Regarding the question only in its - more general aspects, and putting aside, for the moment, the perfect evidence from the records of the Convention, it is palpable that there is no national fountain out of which the existing Slave Act can be derived.
But this Act is not only an unwarrantable assumption of power by the Nation; it is also an infraction of rights reserved to the States. Everywhere within their borders the States are the peculiar guardians of personal liberty. By Jury and Habeas Corpus to save the citizen harmless against all assault is among their du- ties and rights. To his State the citizen when oppressed may appeal, nor should he find that appeal denied. But this Act despoils him of his rights and despoils his State of all power to protect him. It subjects him to the wretched chances of false oaths, forged papers, and facile commissioners, and takes trom him every safe- guard. Now, if the slaveholder has a right to be secure at home in the enjoyment of Slavery, so also has the freeman of the North—and every person there is presumed to be a freeman—an
of Freedom. The same principle of State Rights by which Slavery is protected in the Slave States thrdws its impenetrable shield over Free- dom in the Free States. And here, let me say, is the only security for Slavery in the Slave States as for Freedom in the Free States. In the present fatal overthrow of State Rights you teach a lesson which may return to plague the teacher. Compelling the National Govern- ment to stretch its Briarean arms into the Free States, for the sake of Slavery, you show open- ly how it may stretch these same hundred giant arms into the Slave States for the sake of Freedom. This lesson was not taught by our fathers.
And here I end this branch of the question. The true principles of our Political System, the history of the National Convention, the natural interpretation of the Convention, all teach that this Act is a usurpation by Congress of powers that do not belong to it, and an infraction of rights secured to the States. It is a sword, whose handle is at the National Capital, and whose point is everywhere in the States. A weapon so terrible to Personal Liberty the Na- tion has no power to grasp.
(2.) And now of the denial of Trial by Jury. Admitting, for the moment, that Congress is intrusted with power over this subject, which
‘truth disowns, still the Act is again radically
unconstitutional from its denial of Trial by Jury in a question of Personal Liberty and a suit at common law. Since on the one side there is a claim of property, and on the other of liberty, both property and liberty are involved in the issue. To this claim on either side is attached Trial by Jury.
T'o me, sir, regarding this matter in the light of the common law and in the blaze of free institu- tions, it has always seemed impossible to arrive at any other conclusion. If the language of the Constitution were open to doubt, which it is not, still all the presumptions of law, all the leanings for Freedom, all the suggestions of justice, plead angel-tongued for this right. No- body doubts that Congress, if it legislates on this matter, may allow a Trial by Jury. But if it may, so overwhelming is the claim of justice, it must. Beyond this, however, the question is determined by the precise letter of the Con- stitution.
Several expressions in the provision for the surrender of fugitives from labor show the es- sential character of the proceedings. In the first place, the person must be, not merely charged, as in the case of fugitives from justice, but actually held to labor in the State from which he escaped. In the second place, he must be ‘delivered up on claim of the party to whorn such labor is due.’”? These two facts, that he was held to labor, and that his labor was due to his claimant, are directly placed in issue and must be proved. ‘Two necessary incidents
equal rig ht to be secure at home in the enjoyment | of the delivery may also be observed. First, it
22
must be made in the State where the fugitive is ound; and, secondly, it restores to the claim- ant his complete control over the person of the fugitive. From these circumstances it is evi- dent that the proceedings cannot be regarded, in any just sense, as preliminary, or ancillary to some future formal trial, but as complete in themselves, final and conclusive.
And these proceedings determine on the one side the question of property, and on the other the sacred question of Personal Liberty im its most transcendent form; not merely Liberty for a day or a year, but for life, and the Liberty of generations that shall come after, so long as Slavery endures. 'T’o these questions, the Con- stitution, by two specific provisions, attaches the Trial by Jury. One of these is the familiar clause, already adduced: ‘ No person shall be deprived of life, liberty, or property, without due process of law ;’? that is, without due proceed- ings at law, with Trial by Jury. Not stopping to dwell on this, I press at once to the other provision, which is still more express: “In suits at common law, where the value in con- troversy shall exceed twenty dollars, the right of Trial by Jury shall be preserved.”? This clause, which was not in the original Constitu- tion, was suggested by the very spirit of Free- dom. At the close of the National Convention, Hibridge Gerry refused to sign the Constitution, because among other things, it established ‘a tribunal without juries, a Star Chamber as to civil cases.”” Many united in his opposition,
and on the recommendation of the First Con-’
gress this additional safeguard was adopted as an amendment.
Now, regarding the question as one of property, or of Personal Liberty, in either alternative the Trial by Jury is secured. For this position authority is ample. In the de- bate on the Fugitive Slave Bill of 1817-’18, a Senator from South Carolina, Mr. Smith, anxious for the asserted right of property, ob- jected, on this very floor, to a reference of the question, under the writ of Habeas Corpus, to a judge without a jury. Speaking solely for property, these were his words:
“This would give the Judge the sole power of de- ciding the right.of property the master claims in his slaves, tnstead of trying that right by a jury, as pre- scribed by the Constitution. He would be judge of matters of law and matters of fact; clothed with all the powers of a court. Such a principle is unknown in your system of jurisprudence. Your Constitution has forbid it. It preserves the right. of Trial by Jury in all cases where the value in controversy exceeds twenty dollars,”—(Debates in Natzonal Intelligencer, June 15, 1818.)
But this provision has been repeatedly dis- cussed by the Supreme Court, so that its mean- ing is not open to doubt. .Three conditions are necessary. First, the proceedings must be “a suit ;”? secondly, ‘at common law;”’ and third- ly, ‘‘ where the value in controversy exceeds twenty dollars.” In every such case “ the right of Vial by Jury shall be preserved.”? The
decisions of the Supreme Court expressly touch each of these points.
First. In the case of Cohens vs. Virgimia, (6 Wheaton, 407,) the Court say: “ What is asuit? Weunderstand it to be the prosecu- tion of some claim, demand, or request.”?? Of course, then, the ‘‘ claim ”’ for a fugitive must be ‘a suit.”
Secondly. In the case of Parsons vs. Bedford, (5 Peters, 456,) while considering this very clause, the Court say: “ By common law is meant not merely suits which the common law recognised among its old and settled proceed- ings, but suits in which legal rights were to be ascertained and determined. Ina just sense, the Amendment may well be construed to em- brace all suits, which are not of Equity or Ad- miralty jurisdiction, whatever may be the pecu- liar form which they may assume to settle legal rights.”? Now, since the claim fora fugitive is not a suit in Equity or Admiralty, but a suit to settle what are called legal rights, it must, of
course, be ‘* a suit at common law.’’
Thirdly. In the case of Lee vs. Lee, (8 Pe- ters, 44,) on a question whether “ the value in controversy 7? was ‘one thousand dollars and upwards,” it was objected that the appellants, who were petitioners for Freedom, were not of the value of one thousand dollars. But the Court said: ‘‘The matter in dispute is tne I’reedom of the petitioners. This is not suscep- tible of pecuniary valuation. No doubt is enter- tained of the jurisdiction of the Court.” Of course, then, since liberty is above price, the claim to any fugitive always and necessarily presumes that ‘‘ the value in controversy ex- ceeds twenty dollars.’
By these successive steps, sustained by de- cisions of the highest tribunal, ‘t appears, as in a diagram, that the right of Trial by Jury is se- cured to the fugitive from labor.
This conclusion needs no further authority ; but it may receive curious illustration from the ancient records of the common law, so familiar and dear to the framers of the Constitution. It is said by Mr. Burke, in his magnificent speech on Conciliation with America, that “ nearly as many of Blackstone’s Commentaries were sold in America asin England,” carrying thither the knowledge of those vital principles of I*ree- dom, which were the boast of the British Con- stitution. Imbued by these, the earliest Conti- nental Congress, in 1774, declared, * that the respective Colonies are entitled to the common law of England, and especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.”? Thus, amidst the troubles which heralded the Revolution, the common law was claimed by our fathers as a birthright.
Now although the common Jaw may not be approached as a source of jurisdiction under the National Constitution—and on this point I do not dwell—it is clear that it may be employed in
238
determining the meaning of technical terms in the Constitution borrowed from this lav. This, indeed, is expressly sanctioned by Mr. Madi- son, in his celebrated report of 1799, while re- straining the extent to which the common law may be employed. Thus by this law we learn the nature of Trial by Jury, which, though secured, is not described by the Constitution ; also of Bulls of Attainder, the Writ of Habeas Corpus, and Impeachment, all technical terms of the Constitution borrowed from the com- mon law. By this law, and its associate Chancery, we learn what are cases in law and equity to which the judicial power of the United States is extended. These instances I adduce merely by way of example. Of course also in the same way we learn what in reality are suits at common law.
Now, on principle and authority, a claim for the delivery of a fugitive slave is a suit at com- mon law, and is embraced naturally and neces- sarily in this class of judicial proceedings. This proposition can be placed beyond question. Anti here, especially, let me ask the attention of all learned in the law. On this point, as on every other in this argument, I challenge in- quiry and answer.
History painfully records that during the early days of the common law, and down even to a late period, a system of slavery existed in England, known under the name of villainage. The slave was generally called a villain, though, in the original Latin forms of judicial proceed- ings, nativus, implying slavery by birth. ‘The incidents of this condition have been minute- ly described, and also the mutual remedies of master and slave, all of which were regu- lated by the common law. Slaves sometimes then, as now, escaped from their masters. The claim for them after such escape was pros- ecuted by a “suit at common law,’ to which, as to every suit at common law, the Trial by Jury was necessarily attached. Blackstone, in his Commentaries, (Vol. I, p. 93,) in words which must have been known to all the law- yers of the Convention, said of villains: «They could not leave their lord without his permis- sion, but if they ran away, or were purloined from him, might be ctarmep and recovered by action, like beasts or other cattle.’ This very word “‘action”’ of itself implies ‘a suit at com- mon law ” with Trial by Jury.
From other sources we learn precisely what
the action was. Thatigreat expounder of the ancient law, Mr. Hargrave, says, “the Year Books and Books of Entries are full of the forms used in pleading a title to villains.” Though no longer of practical value in Eng- land, they remain as monuments of jurispru- dence, and as mementoes of a barharous insti- tution. He thus describes the remedy of the master at common law:
“The lord’s remedy for a fugitive villain was, either by seizure or by sucing out a writ of Nativo Haben-
do, or Neifty, as it is sometimes called. If the lord
seized, the villain’s most effectual mode of recovering .
liberty was by the writ of Homine Replegiando, | which had great advantage over the writ of Habeas Corpus. In the Habeas Corpus the return cannot be contested by pleading against the truth of it, and consequently on a Habeas Corpus the question of lb- erty cannot go toa jury for trial. But in the Homine Replegiando it was otherwise. The plaintiff, on the defendant’s pleading villainage, had the same oppor- tunity of contesting it, as when impleaded by the lord in a INativo Habendo. If the lord sued out a Nativo Habendo, and the villainage was denied, in which case the sheriff could not seize the villain, the lord was then to enter his plaint in the county court, and as the sheriff was not allowed to try the question of vil- lainage in his court, the lord could not have any ben- efit from the writ, without removing the cause by the writ of Pore into the King’s Bench or Common Pleas.’’—(20 Howell’s State Trials, 88 zzo0¢e.)
The authority of Mr. Hargrave is sufficient. But I desire to place this matter beyond all cavil. EHrom the Digest of Lord Chief Baron Comyns, which, at the adoption of the Consti- tution, was one of the classics of our jurispru- dence, I derive another description of the remedy of the master :
“Tf the lord claims an inheritance in his villain, who fires from his lord against his will, and lives in a place out of the manor, to which he is regardant, the lord shall have a NNatevo Habendo. And upon such writ, directed to the sheriff, he may seize him who does not deny himself to be a villain. But if the defendant say that heis a Free Man, the sheriff cannot seize him, but the lord must remove the writ by Poze before the Justices 72 Hzre, or in C. B., where he must count upon r.—(Comyns’ Digest—Villainage, GAS
An early writer of peculiar authority, Fitz- herbert, in his Vatura Brevium, on the writs of the common law, thus describes these pro- ceedings :
“The writ de Nativo Habendo lieth for the lord who claimeth inheritance in any villain, when his viliain is run from him, and is remaining within any , place out of the manor unto which he is regardant, or when he departeth from his lord against the lord’s will; and the writ shall be directed to the sheriff. And the sheriff may seize the villain, and deliver him unto his lord, if the villain confess unto the sheriff that he is his villain; but if the villain say to the sheriff that he is frank, then it seemeth that the sheriff ought not to soixe him; as it is in a replevin, if the defendant slaim property, the sheriff cannot replevy the cattle, but the party ought to sue a writ de Proprietate Probanda; and so if the villain say that he is a freeman, &c., then the sheriff ought not to seize him, but then the lord ought to sue a Pone to remove the plea before the justices of the Common Pleas, or before the justices in eyre. But if the vil- lain purchase a writ de Libertate Probanda before the lord hath sued the Pore to remove the plea before the justices, then that writ of Ledertate Probanda is a Supersedeas unto the lord, that he proceed not upon the writ Nativo Habendo till the eyre of the justices, and that the lord ought not to seize the villain in the mean time.’’—(Vol. I, p. 76.)
These authorities are not merely applicable to the general question of freedom; but they distinctly contemplate the case of fugitive’ slaves, and the “‘suitsat common law” for their rendition. Blackstone speaks of villains who ‘ran away ;”’ Hargrave of “ fugitive villains ;”
24
Comyns of a villain “ who flies from his lord | against his will; ”? and Fitzherbert of the pro- ceedings of the lord ** when his villain is run | from him.” The forms, writs, counts, pleadings, and judgments, in these suits, are all preserved | among the precedents of the common law. The writs are known as original writs which the | party on either side, at the proper stage, could | sue out of right without showing cause. The writ of Libertate Probanda for a fugitive slave was in this form:
“ Tribertate Probanda.
‘“‘The king to the sheriff, &e. A. and B. her sister, have showed unto us, that whereas they are free women, and ready to prove their liberty, ¥. claiming them to be his niefs unjustly, vexes them; and there- fore we command you, that if the aforesaid A. and B. shall make you secure touching the proving of their | liberty, then put that plea before our justices at the first assizes, when they shall come into those parts, | because proof of this kind belongeth not to you to take; and in the mean time cause the said A. and B. to have peace thereupon, and tell the aforesaid F. that he may be there, if Ke will, to prosecute his plea | thereof against the aforesaid A.and B, And have there this writ. Witness, &c.”’—(fitzherbert, Vol. I, p. 77.)
By these various proceedings, all ending in Trial by Jury, Personal Liberty was guarded, even in the early, unrefined, and barbarous days of the common law. Any person claimed asa fugitive slave might invoke this Trial as a sa- cred right. Whether the master proceeded by seizure, as he might, or by legal process, the | Trial by Jury in a suit at common law, before | one of the high courts of the realm, was equal- ly secured. In the case of seizure, the fugitive, reversing the proceedings, might institute pro- cess against his master and appeal to a court and jury. In the case of process by the master, | the watchful law secured to the fugitive the | same protection. By no urgency of force, by no device of process, could any person claimed as a slave be defrauded of this Trial. Such was the common law. If its early boast, that there could be no slaves in England, fails to be true, this at least may be its pride, that, according to its indisputable principles, the Liberty of every man was placed under the guard of Trial by Jury.
These things may seem new to us; but they must have been known to the members of the Convention, particularly to those from South Carolina, through whose influence the provi- sion on this subject was adopted. Charles Cotesworth Pinckney and Mr. Rutledge had studied law at the Temple, one of the Kinglish Inns of Court. It would be a discredit to them, and also to other learned lawyers, members of the Convention, to suppose that they were not conversant with the principles and precedents directly applicable to this subject, all of which are set down in works of acknowledged weight, and at that time of constant professional study. Only a short time before, in the case of Somer- sett, they had been most elaborately examined in Westminster Hall. In a forensic effort of |
\
unsurpassed learning and elevation, which of itself vindicates for its author his great juridical name, Mr. Hargrave had fully made them known to such as were little acquainted with the more ancient sources. But even if we could suppose them unknown to the lawyers of the Convention, tee are none the less appli- cable in determining the true meaning of the Constitution.
The conclusion from this examination is ex- plicit. Clearly and indisputably, in England, the country of the common law, a claim fora fugitive slave was ‘“‘a suit at common law,” recognised ** among its old and settled proceed- ings.’””? To question this, in the face of authen- tic principles and precedents, would be prepos- terous. As well might it be questioned, that a
| writ of replevin for a horse, or a writ of right
for! land, was ‘‘a suit at common law.” It follows, then, that this technical term of the Constitution, read in the illumination of the common law, naturally and necessarily em- braces proceedings for the recovery of fugitive slaves, if any such be instituted or allowed under the Constitution. And thus, by the letter of the Constitution, in harmony with the re- quirements of the common law, all such pet-
' sons, when claimed by their masters, are en-
titled toa Trial by Jury.
Such, sir, is the argument, briefly uttered, against the constitutionality of the Slave Act. Much more I might say on this matter; much ~ more on the two chief grounds of objection which I have occupied. But I am admonished to hasten on.
Opposing this Act as doubly unconstitutional from a want of power in Congress and from a denial of Trial by Jury, I find myself again en- couraged by the example of our Revolutionary Fathers, in a case which is one of the land- marks of history. The parallel is important and complete. In 1765, the British Parlia- ment, by a notorious statute, attempted to draw money from the colonies through a stamp tax, while the determination of certain questions of forfeiture under the statute was delegated—not to the courts of common law—but to courts of Admiralty without a jury. The Stamp Act, now execrated by all lovers of liberty, had this extent and no more. Its passage was the sig- nal for a general flame of opposition and indig- nation throughout the Colonies. It was de- nounced as contrary to the British Constitution on two principal grounds; first, as a usurpa- tion by Parliament of powers not belonging to it, and an infraction of rights secured to the Colonies ; and secondly, as a denial of Trial by Jury in certain cases of property. -
The public feeling was variously expressed. At Boston, on the arrival of the stamps, the shops were closed, the bells of the churches tolled, and the flags of the ships hung at half mast. At Portsmouth, in New Hampshire, the bells were tolled, and notice given to the
_ orators also spoke.
25
“friends of Liberty to hold themselves in readi-
ness to attend her funeral. At New York a letter was received from Franklin, then in Lon-
don, written on the day after the passage of the.
Act, in which he said: ‘‘ The sun of liberty is set.” The obnoxious Act, headed “ Folly of England and Ruin of America,’? was con- temptuously hawked through thestreets. The merchants of New York, inspired then by Lib- erty, resolved to import no more goods from England until the repeal of the Act; and their example was followed shortly afterwards by the merchants of Philadelphia and Boston. Bodies of patriots were organized everywhere under the name of ‘Sons of Liberty.” The James Otis with fiery tongue appealed to Magna Charta.
Of all the States, Virginia—whose shield bears the image of Liberty trampling upon chains—first declared herself by solemn reso- lutions, which the timid thought “ treason- able ;”? but which soon found.a response. New York followed. Massachusetts came next, speaking by the pen of the inflexible, Samuel Adams. In an Address from the Legislature
to the Governor, the true grounds of opposition
to the Stamp Act, coincident with the two radical objections to the Slave Act, are clearly set forth :
“ You are pleased to say that the Stamp Act is an
act of Parliament, and as such ought to be observed. |
This House, sir, has too great reverence for the Su-
reme Legislature of the nation, to question tts just authority. It by no means appertains to us to pre- sume to adjust the boundaries of the power of Parlia- ment; 4ut boundaries there undoubtedly are. in mind of that most grievous sentence of excommu- nication solemnly denounced by the Church in the name of the sacred Trinity, in the presence of King Henry the Third and the estates of the realm, against all those who should make statutes OR OBSERVE THEM, BEING MADE, contrary to the liberties of Magna Charta. The Charter of this province invests the General Assembly with the power of making laws for its internal government and taxation ; and this Char- ter has never been forfeited. The Parliament has a right to make all laws within the limits of their own constitution.’ * * * ‘“ Thepeople complain that the Act vests a single judge of Admiralty with a power to try and determine their property in controversies arising from internal concerns, wethout a jury, con- trary to the very expression of Magna Charta, that no freeman shall be amerced, but by the oath of good and lawful men of the vicinage.’” * * * ‘We deeply regret that the Parliament has seen fit to pass such an act as the Stamp Act; we flatter ourselves that the hardships of it will shortly appear to them
in such a light, as shall indace them in their wisdom |
to repeal it; 27 the mean time, we must beg your Ex- cellency to excuse us from doing anything to assist in the execution of ut.”
Thus in those days spoke Massachusetts! The parallel still proceeds. The unconstitu- tional Stamp Act was welcomed in the Colonies by the Tories of that day precisely as the uncon- stitutional Slave Act has been welcomed by large and imperious numbers among us. Hutchinson, at that time Lieutenant Governor and Judge in Massachusetts, wrote to Minis-
We | hope we may, without offence, put your Excellency |
ters in England: “The Stamp Act is received with as much decency as could be expected. It leaves no room for evasion, and will execute itself.” Like the judges of our day, in charges to grand juries he resolutely vindicated the Act, and admonished * the jurors and the peo- ple”? to obey. Like Governors of our day, Ber- nard, in his speech to, the Legislature of Mas- sachusetts, demanded unreasoning submission. **T shall not,”? says this British Governor, ‘enter into any disquisition of the policy of this Act. I have only to say it is an act of the Parliament of Great Britain; and I trust that the supremacy of that Parliament over all the members of their wide and diffused empire never was and never will be denied within these walls.” Like marshals of our day, the officers of the Customs made “ application for a military force to assist them in the execution of their duty.””. The military were against the people. A British major of artillery at New York exclaimed, in tones not unlike those now sometimes heard: ‘‘1 will cram the stamps | down their throats with the end of my sword.” | The elaborate answer of Massachusetts—a pa- per of historic grandeur—drawn by Samuel | Adams, was pronounced “the ravings of a
parcel of wild enthusiasts.”
Thus in those days spoke the partisans of 'the Stamp Act. But their weakness soon be- came manifest. In the face of an awakened community, where discussion has free scope, no men, though surrounded by office and wealth, can long sustain injustice. Earth, water, nature, they may subdue; but Truth they cannot subdue. Subtle and mighty, against all efforts and devices, it fills every re- gion of light, with its majestic presence. The Stamp Act was discussed and understood. Its violation of constitutional rights was exposed. By resolutions of Legislatures and of town meetings, by speeches and writings, by public |assemblies and processions, the country was rallied in peaceful phalanx against the execu- tion of the Act. To this great object, within the bounds of law and the constitution, were | bent all the patriot energies of the land.
And here Boston took the lead. Her rec- ords at this time are full of proud memorials. In formal instructions to her representatives, adopted unanimously, “ having been read sev- eral times,”’ in Town Meeting at Faneuil Hall, | the following rule of conduct was prescribed :
‘We, therefore, think it our indispensable duty, in Justice to ourselves and Posterity, as it is our un- doubted Privilege, in the most open and unreserved, but decent and respectful Terms, to declare our greatest Dissatisfaction with this Law. And we think | at incumbent upon you by no Means to join in any public Measures for countenancing and assisting in the execution of the same. But to use your best en- deavors in the General Assembly to have the inhe- rent inalienable Rights of the People of this Province asserted, and vindicated, and left upon the public rec- ord, that Posterity may never have reason to charge |
the present Times with the Guilt of tamely giy- ing them away.”
26
Virginia responded to Boston. Many of her justices of the peace surrendered their commis- sions “‘ rather than aid in the enforcement of the law or be instrumental in the overthrow of their country’s liberties.”
As the opposition deepened, its natural ten- dency was to outbreak and violence. But this was carefully restrained. On one occasion in Boston it showed itself in the lawlessness of a mob. But the town, at a public meeting in Faneuil*Hall, called without delay on the mo- tion of the opponents of the Stamp Act, with James Otis as chairman, condemned the out- rage. Eager in hostility to the execution of the Act, Boston cherished municipal order, and constantly discountenanced all tumult, vio- lence, and illegal proceediags. Her equal de- votion to these two objects drew the praises and congratulations of other towns. In reply, March 27th, 1766, to an Address from the inhabitants of Plymouth, her own conscious- ness of duty done is thus expressed :
“Tf the inhabitants of Boston have taken the legal and warrantable measures to prevent that misfortune of all others the most to be dreaded, the execution of the Stamp Act, and as a necessary means of prevent- ing it have made any spirited applications for open- ing the custom-houses and courts of justice; if at the same time they have borne their testimony against outrageous tumulis and twllegal proceedings, and given any example of the Love of Peace and. good or- der, next to the consciousness of having done their duty is the satisfaction of meeting with the approba- tion of any of their fellow-countrymen.”
Learn now from the Diary of John Adams the results of this system :
“The year 1765 has been the most remarkable year of my life. That enormous engine, fabricated by the British Parliament, for battering down all the rights and liberties of America—I mean the Stamp Act— has raised and spread through the whole continent a spirit that will be recorded to our honor with all fu- ture generations. In every Colony, from Georgia to New Hampshire inclusively, the stamp distributors and inspectors have been compelled by the uncon- querable rage of the people to renounce their offices. Such and so universal has been the resentment of the people, that every man who has dared to speak in favor of the stamps, or to soften the detestation in which they are held, how great soecver his abilities and virtues had been esteemed before, or whatever his fortune, connections, and influence had been, has been seen to sink into universal contempt and ig- nominy.”’
The Stamp Act became a dead letter. At the meeting of Parliament numerous petitions were presented, calling for its instant repeal. Franklin, at that time in England, while giv- ing his famous testimony before the House of Commons. was asked whether he thought the people of America would submit to this Act if modified. His brief emphatic response was: “No, never, unless compelled by force of arms.’””? Chatham, yet weak with disease, but mighty in eloquence, exclaimed in ever-mem- orable words : “* We are told America is obsti- nate—America is almost in open rebellion. Sir, [rejoice that America has resisted. Three millions of people so dead to all the feelings
of liberty, as voluntarily to submit to be slaves, would have been fit instruments to make slaves of all the rest. The Ameri- cans have been wronged; they have been driven to madness. 1 will beg leave to tell. the House in a few words what is really my opinion. Jt is that the Stamp Act be re- pealed, absolutely, totally, and immediately.”? It was repealed. Within less than a year from its original passage, denounced and discredited, it was driven from the Statute Book. In the. charnel-house of history, with the unclean’ things of the Past, it now rots. Thither the Slave Act is destined to follow. |
Sir, regarding the Stamp Act candidly and cautiously, free from the animosities of the time, it is impossible not to see that, though gravely unconstitutional, it was at most an in- fringement of civil liberty only; not of personal | liberty. There was an unjust tax of a few. pence, with the chances of amercements by a single Judge without a jury; but, by no pro- | vision of this Act was the personal liberty of | any man assailed. Under it no freemar could _ be seized as a slave. Such an act, though | justly obnoxious to every lover of constitu-_ tional Liberty, cannot be viewed with the feelings of repugnance, enkindled by a statute, which assails the personal liberty of every man, - and under which any freeman may be seized as | a slave. Sir, in placing the Stamp Act by the | side of the Slave Act, I do injustice to that emanation of British tyranny. Both, indeed, infringe important rights; one of property ;_ the other the vital right of all, which is to. other rights as the soul to the body—the right of a man to himself. Both are condemned ; but | their relative condemnation must be measured _ by their relative characters. As Freedom is more than property ; as Man is above the dol- _ lar that he earns; as Heaven, to which we | all aspire, is higher than the earth, where every _ accumulation of wealth must ever remain: so | are the rights assailed by an American Con- | gress higher than those once assailed by the British Parliament. Atd just in this degree must history condemn the Slave Actmore than. the Stamp Act.
Sir, I might here stop. It is enough in this place, and on this occasion, to show the uncon-. stitutionality of this enactment. Your duty commences at once. All legislation hostile to the fundamental law of the land should be re- pealed without delay. But the argument is not yet exhausted. Even if this Act could claim any validity or apology under the Consti- | tution, which it cannot, it lacks that essential support in the Public Conscience of the States, where it is to be enforced, which ws the life of all law. and without which any law must become a dead letter. dese tl
The Senator from South Carolina [Mr. Bur- | LER] was right, when, at the beginning of the session, he pointedly said that a law which |
rs
‘ould be enforced only by the bayonet, was no law. Sir. itis idle to suppose that an Act of -Jongress becomes effective, merely by compli- l'nce with the formsof legislation. Something l/nore is necessary. The Act must be in har- ‘mony with the prevailing public sentiment of |
ihe community upon which it bears. Of course, . do not suggest that the cordial support of very man or of every small locality is neces- sary; bnt I do mean that the public feelings, ihe public convictions, the public conscience, ‘must not be touched, wounded, lacerated, by ‘xvery endeavor to enforce it. With all these ‘t must be so far in harmony, that, like other ‘aws, by which property, liberty, and life, are guarded, it may be administered by the ordi- laary process of the courts, without jeoparding the public peace or shocking good men. If this be true as a general rule—if the public support and sympathy be essential to the life of all law, this is especially the case in an enactment which concerns the important and sensitive rights of Personal Liberty. In conformity with ‘this pringiple tue cegislature of Massachusetts, by formal resolution, in 1850, with singular unanimity, declared :
such laws only in regard thereto as will be main- tained by the sentiments of the Free States, where such laws are to be enforced.”
_ The duty of consulting these sentiments was recognised by Washington. While President of the United States, at the close of his Admin- istration, he sought to recover a slave, who had fled to New Hampshire. His autograph letter to Mr. Whipple, the Collector of Portsmouth, dated at Philadelphia, 28th November, 1796, which I now hold in my hand, and which has never before seen the light, after describing the fugitive, and particularly expressing the desire of “her mistress,” Mrs. Washington, for her return, employs the following decisive lan- ‘guage:
| ‘“T do not mean, however, by this request, that such violent measures should be used as WouLD Ex-
CITE A MOB OR RIOT, WHICH MIGHT BE THE CASE IF SHE HAS ADHERENTS, OR EVEN UNEASY SENSATIONS
ig “We hold it to be the duty of Congress to pass |
‘IN THE MINDS OF WELL-DISPOSED CITIZENS. Rather | than either of these should happen, I would forego |
her services altogether; and the example also, which is of infinite more importance. “GEORGE WASHINGTON.”
Mr. Whipple, in his reply, dated at Ports- mouth, December 22, 1796, an autograph copy of which I have, recognises the rule of Wash- ington:
““T will now, sir, agreeably to your desire, send her to Alexandria, 2f a be practicable without the conse- quences whach you except—that of exciting a riot or &@ mob, or creating wneasy sensations in the minds of well-disposed persons. The first cannot be calculated beforehand ; it will be governed by the popular opin- ion of the moment, or the circumstances that may arise in the transaction. The latter may be sought into and judged of by conversing with such persons without discovering the occasion. So far as I have had opportunity, I perceive that different sentiments are entertained on this subject.”
27
The fugitive never was returned; but lived in freedom to a good old age, down to a very recent period, a monument of the just forbear- ance of him whom we aptly call the Father of his Country. It is true that he sought her re- turn. This we must regret, and find its apolo- gy. He was at the time a slaveholder. Though often with various degrees of force express- ing himself against slavery, and promising his suffrage for its abolition, he did not see this wrong as he saw it at the close of life, in the illumination of another sphere. From this act of Washington, still swayed by the policy of the world, [ appeal to Washington writing his will. From Washington on earth I appeal to Washington in Heaven, Seek not by his name to justify any such effort. His death is above his hie. His last testament cancels his author- ity as a slaveholder. However he may have appeared before man, he came into the pres- ence of God only as the liberator of his slaves. Grateful for this example, Iam grateful also, that while a slaveholder, and seeking the re- turn of a fugitive, he has left in permanent rec- ord a rule of conduct which, if adopted by his country, will make Slave-Hunting impossible. The chances of a riot or mob, or “even uneasy sensations among well-disposed persons,” are to prevent any such pursuit.
Sir, the existing Slave Act cannot be enforc-. ed without violating the precept of Washing- ton. Not merely “uneasy sensations of well- disposed persons,” but rage, tumult, commotion, mob, riot, violence, death, gush from its fatal overflowing fountains; hoc fonte derivata clades
In patriam populumque fluxit. Not a case occurs without endangering the public peage. Workmen are brutally dragged from employments to which they are wedded by years of successiul labor; husbands are ravished from wives, and parents from chil- dren. Everywhere there is disturbance; at Detroit, Buffalo, Harrisburgh, Syracuse, Phil- adelphia, New York, Boston. At Buffalo the fugitive was cruelly knocked by a log of wood against a red-hot stove, and his mock trial commenced while the blood still oozed from his wounded head. At Syracuse he was rescued by a sudden mob; so also at Bos- ton. At Harrisburgh the fugitive was shot; at Christiana the Slave-Hunter was shot. At New York unprecedented excitement, always with uncertain consequences, has attended every case. Again at Boston a fugitive, according to the received report, was first basely seized under pretext that he was a criminal ; arrest- ed only after a deadly struggle; guarded by officers who acted in violation of the laws of the State; tried in a Court House surround- ed by chains contrary to the common law ; finally surrendered to Slavery by trampling on the criminal process of the State, under an escort in violation again of the laws of the
i Stata while the pulpits trembled and the whole
28
people, not merely “ uneasy,” but swelling with ill-suppressed indignation, for the sake of order and tranquillity, without violence witnessed the shameful catastrophe.
With every attempt to administer the Slave
Act, it constantly becomes more revolting, pav- |
ticularly in its influence on the agents it en- lists. Pitch cannot be touched without defile- ment, and all who lend themselves to this work seem at once and unconsciously to lose the better part of man. The spirit of the law passes into them, as the devils entered the swine. Upstart commissioners, the mere mushrooms of courts, vie and revie with each other. Now by indecent speed, now by harshness of man- ner, ote a denial of evidence, now by crip- pling the defence, and now by open glaring wrong, they make the odious Act yet more odi- ous. Clemency, grace, and justice, die in its presence. All this is observed by the world. Not a case occurs which does not harrow the souls of good men, and bring tears of sympa- thy to the eyes, also those other noble tears which “ patriots shed o’er dying laws.”
Sir, I shall speak frankly. If there be an ex- ception to this feeling, it will be found chiefly with a peculiar class. It is a sorry fact that the “mercantile interest,” in its unpardon-
able selfishness, twice in English history, frown- |
ed upon the endeavors to suppress the atro- city of Algerine Slavery; that it sought to
baffle Wilberforce’s great effort for the aboli- |
tion of the African slave trade; and that, by a sordid compromise, at the formation of our Constitution, it exempted the same detest- ed Heaven-defying traflic from American judgment. And now representatives of this “interest,” forgetful that commerce is the child of Freedom, join in husting the Slave. But the great heart of the people recoils from this enactment. It palpitates for the fugitive, and rejoices in his escape. Sir, 1am telling you fasts. The literature of the age is all on his side. ‘The songs, more’ potent than laws, are for him. The poets, with voices of melody, are for Freedom. Who could sing for Slavery? They who make the permanent opinion of the country, who mould our youth, whose words, dropped into the soul, are the germs of char- acter, supplicate for the Slave. And now, sir, behold a new and heavenly ally. A woman, inspired by Christian genius, enters the lists, like another Joan of Arc, and with marvellous power sweeps the chords of the popular heart. Now melting to tears, and now inspiring to rage, her work everywhere touches the con- science, and makes the Slave-Hunter more hate- ful. Ina brief period, nearly 100,000 copies of Uncle Tom’s Cabin have been already circu- lated. But this extraordinary and sudden suc- cess—surpassing all other instances in the rec- ords of literature—cannot be regarded merely as the triumph of genius. Higher far than this, it is the testimony of the people, by an unpre- cedented act, against the Fugitive Slave Bill.
These things I dwell upon as the incentives: and tokens of an existing public sentiment, which renders this Act practically inoperative, | except as a tremendous engine of terror, Sir, the sentiment is just. Even in the lands of slavery, the slave-trader is loathed as an igno-| ble character, from whom the countenance is turned away; and can the Slave-Hunter be) more regarded while pursuing his prey in a land of Freedom? In early Europe, in barba- rous days, while Slavery prevailed, a Hunting Master, nach jagender Herr, as the Germans called him, was held im aversion. Nor was this’ all. The fugitive was welcomed in the cities, and protected against the pursuit. Sometimes vengeance awaited the Hunter. Down to this day, at Revel, now a Russian city, a sword is. proudly preserved with which a Hunting Baron was beheaded, who, in violation of the munici- pal rights of this place, seized a fugitive slave. Hostile to this Act as our public sentiment may | be, it exhibits no trophy like this. The State laws of Massachusetts have been violated in the seizure of a fugitive slave; but no sword, like that of Revel, now hangs at Boston.
I have said, sir, that this sentiment is just. And is it not? Every escape from Slavery necessarily and instinctively awakens the re- gard of all who love Freedom. The endeavor, though unsuccessful, reveals courage, man- hood, character. No story.is read with more interest than that of our own Lafayette, when, aided by a gallant South Carolinian, in defi- auce of the despotic ordinances of Austria, kindred to our Slave Act, he strove to escape | from the bondage of Olmutz. Literature pauses with exultation over the struggles of Cervantes, the great Spaniard, while a slave in Algiers, to regain the liberty for which he says,
in his immortal work, “we ought to risk life | itself, Slavery being the greatest evil that can
fall to the lot of man.” Science, in all her manifold triumphs, throbs with pride and de- light, that Arago, the astronomer and philoso- pher—devoted republican also—was redeemed
from barbarous Slavery to become one of her | Religion rejoices serenely, with |
i
greatest sons. joy unspeakable, in the final escape of Vincent de Paul. Exposed in the public square of Tu-
vnis to the inspection of the traffickers in human |
flesh, this illustrious Frenchman was subjected
to every vileness of treatment, like a horse, |
compelled to open his mouth, to show his teeth,
to trot, to run, to exhibit his strength in lifting | burthens, and then, like a horse, legally sold in |
market overt. Passing from master to master, after a protracted servitude, he achieved his | freedom, and regaining France, commenced that resplendent career of charity by which he
is placed among the great names of Christen- | dom. Princes and orators have lavished pane- | gyrics upon this fugitive slave; and the Catho- | lic Church, in homage to his extraordinary virtues, has introduced him into the company |
of saints.
|
1 sufferings, are the fugitive slaves of our country now commended. For them every sentiment of humanity is aroused ;
*“ Who could refrain
That had a heart to love, and in that heart Courage to make his love known ?”
‘Rude and ignorant they may be; but in their ‘very efrorts for Freedom, they claim kindred ‘with all that is noble in the Past. They are ‘among the heroes of our age. Romance has ‘no stories of more thrilling interest than theirs. Classical antiquity has preserved no examples of adventurous trial more worthy of renown. Among them are men whose names will be treasured in the annals of their race. By the ‘eloquent voice they have already done much to make their wrongs known, and to secure ‘the respect of the world. History will soon lend them her avenging pen. Proscribed by you during life, they will proscribe you through all time. Sir, already judgment is beginning. A ‘righteous public sentiment palsies your enact- ment.
And now, sir, let us review the field over which we have passed. We have seen that any com- promise, finally closing the discussion of Sla- very under the Constitution, is tyrannical, ab- surd, and impotent; that as Slavery can exist only by virtue of positive law, and as it has no
‘such positive support in the Constitution, it cannot exist within the National jurisdiction; that the Constitution nowhere recognises prop- erty in man, and that, according to its true in- terpretation, Freedom and not Slavery is na- tional, while Slavery and not Freedom is section- al; that, in this spirit, the National Government was first organized under Washington, himself an Abolitionist, surrounded by Abolitionists, while the whole country, by its Church, its Colleges, its Literature, and all its best voices, was united against Slavery, and the national flag at that time nowhere within the National Territory covered a single slave; still further, that the National Government isa Government of delegated powers, and as among these there is no power to support Slavery, this institution cannot be national, nor can Congress in any way legislate in its behalf; and, finally, that the establishment of this principle is the true way of peace and safety for the Republic. Considering next the provision for the surren- der of fugitives from labor, we have seen that it was not one of the original compromises of the Constitution ; that it was introduced tar- dily and with hesitation, and adopted with little discussion, and then and for a long pe- riod after was regarded with comparative in- difference ; that the recent Slave Act, though many times unconstitutional, is especially so on two grounds—first, as a usurpation by Con- gress of powers not granted by the Constitu- tion, and an infraction of rights secured to the States; and secondly, as a denial of Trial by
29
Less by genius or eminent services, than by | Jury, in a question of Personal Liberty and a
suit at common law; that its glaring unconsti- tutionaly finds a prototype in the British Stamp Act, which our fathers refused to obey as un- constitutional on two parallel grounds—/first, because it was a usurpation by Parliament of powers not belonging to it under the British Constitution and an infraction of rights be- longing to the Colonies ; and secondly, because it was a denial of Trial by Jury in certain cases of property ; that as Liberty is far above property, so is the outrage perpetrated by the American Congress far above that perpetrated by the British Parliament; and, finally, that the Slave Act has not that support in. the public sentiment of the States where it is to be executed, which is the life of all law, and which prudence and the precept of Washing- ton require.
z
Sir, thus far I have arrayed the objections to this Act, and the false interpretations out of which it has sprung. But I am asked what I offer as a substitute for the legislation which I denounce. Freely I will answer. It is to be found in a correct appreciation of the provis- ion of the Constitution, under which this dis- cussion occurs. Look atit in the double light of reason and of Freedom, and we cannot mistake the exact extent of its requirements. Here is the provision :
‘‘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 ser- vice or labor may be due.”
From the very language employed it is obvi- ous that this is merely a compact between the States, with a prohibition on the States, confer- ring no power on the nation. In its natural signification it is acompact. According to the examples of other countries, and the principles of jurisprudence, it is a compact. All arrange- ments for the extradition ot fugitives have been customarily compacts. Except under the ex- press obligations of treaty, no nation is bound to surrender fugitives. Especially has this been the case with fugitives for Freedom. In medieval Europe, cities refused to recognise this obligation in favor of persons even under the same National Government. In 1531, while the Netherlands and Spain were united under Charles V, the Supreme Council of Mechlin rejected an application from Spain for the surrender of a fugitive slave. By ex-
| press compact alone could this be secured. But
the provision of the Constitution was borrowed from the Ordinance of the Northwestern Ter- ritory, which is expressly declared to be a com- pact; and this Ordinance, finally drawn by Nathan Dane, wasagain borrowed in its distinc-
| tive features from the early institutions of Mas-
sachusetts, among which, as far back as 1643, was a compact of like nature with other New England States. Thus this provision is a com-
30 :
pact in language, in nature, in its whole his- tory ; as we have already seen it is a compact, according to the intentions of our Fathers and the genius of our institutions.
As a compact its execution depends absolute- ly upon the States, without any intervention of the Nation. Each State, in the exercise of rts own judgment, will determine for itself the pre- cise extent of the odltgatzons assumed. AS a com- pact in derogation of Freedom, it must be con- strued strictly in every respect—leaning al- ways in favor of Freedom, and shunning any meaning, not clearly necessary, which takes away important personal rights; mindful that the parties to whom it is applicable are re- garded as “persons,” of course with all the rights of “persons” under the Constitution ; especially mindful of the vigorous maxim of the common law, “that he is cruel and impi- ous who does not always favor Freedom;” and also completely adopting in letter and in spirit, as becomes a just people, the rules of the great Commentator, that “the law is always ready to catch at anything in favor of Liberty.” With this key the true interpretation is natural and easy.
Briefly, the States are prohibited from any “law or regulation” by which any “ person” esvaped from “service or labor” may be dis- charged therefrom, and on establishment of the claim to such “service or labor,” he is to be delivered up. But the mode by which the claim is to be tried and determined is not speci- fied. All this is obviously within the control of each State. It may be done by virtue of express legislation, in which event any Legisla- ture, justly careful of Personal Liberty, would surround the fugitive with every shield of the law and Constitution. But here a fact, preg- nant with Freedom, must be studiously ob- served. The name Slave—that litany of wrong and woe—does not appear in the clause. Here isno unambiguous phrase, incapable of a double sense; no “positive” language, applicable only to slaves, and excluding all other classes; no word of that absolute certainty, in every par- ticular, which forbids any interpretation ex- cept that of Slavery, and makes it impossible “to catch at anything in favor of Liberty.” Nothing of this kind is here. But passing from this; “cruelly and impiously” renouncing for the moment all leanings for Freedom; refusing “to catch at anything in favor of Liberty;” abandoning the cherished idea of the Fathers, that “it waswrong to admit in the Constitution the idea of property in man;” and, in the face of these commanding principles, assuming two things—first, that, in the evasive language of this Clause, the Convention, whatever may have been the aim of individual members, real- ly intended fugitive slaves, which is sometimes questioned—and, secondly, that, if they so in- tended, the language employed can be judicial- ly regarded as justly applicable to fugitive slaves, which is often and earnestly denied—
the writ de Nativo Habendo—each writ requir-}
then the whole proceeding, without any ex: press legislation, may be left to the ancient and authentic forms of the common law, familial)
for the occasion. If the fugitive be seized with.) out process, he will be entitled at once to his} writ de Homine Replegiando, while the master, resorting to process, may find his remedy in}
ing Trial by Jury. If from ignorance or lack of employment these processes have slumbered in our country, still they belong to the great) arsenal of the common law, and continue, like’ other ancient writs, tanquam gladium in va-| gina, ready to be employed at the first necessity. They belong to the safeguards of the citizen. But in any event and in either alternative the proceedings would be by “suit at common) law,” with Trial by Jury; and it would be the! solemn duty of the court, according to all the! forms and proper delays of the common law, to try the case on the evidence ; strictly to ap-| ply all the protecting rules of evidence, and es-| pecially to require stringent proof, by compe- tent witnesses under cross-examination, that the person claimed was held to service; that his| service was due to the claimant; that he had! escaped from the State where such service was, due; and also proof of the laws of the State under which he was held. Stell further, to the Courts of each State must belong the determz- nation of the question, to what classes of per-' sons, according to just rules of interpretation, | the phrase “persons held to service or labor” is strictly applicable.
Such is this much-debated provision. The | Slave States, at the formation of the Constitu-. tion, did not propose, as in the cases of Natu- ralization and Bankruptcy, to empower the, National Government to establish an uniform rule for the rendition of fugitives from labor, throughout the United States ; they did not ask the National Government to charge itself in any way with this service: they did not yen- ture to offend the country, and particularly the | Northern States, by any such assertion of a hateful right. They were content, under the sanctions of compact, to leave it to the public | sentiment of the States. There, Linsist it shall | remain. |
Mr. President, I have occupied much time; but the great subject still stretches before us. | One other point yet remains, which I should | not leave untouched, and which justly belongs | to the close. The Slave Act violates the Con- stitution and shocks the Public Conscience. | With modesty and yet with firmness let me add, sir, it offends against the Divine Law. No, such enactment can be entitled to support. As | the throne of God is above every earthly throne, | so are his laws and statutes above all the laws |
and statutes of man. To question these is to. question God himself.
But to assume that hu- | man laws are beyond question is to claim for i)
;
of God is presumptuously and impiously to ex- alt man to an equality with God. Clearly hu- man laws are not always in such conformity ; nor can they ever be beyond question from each individual. Where the conflict is open, as if Congress should command the perpetration of ‘murder, the office of conscience as final arbi- ‘ter is undisputed. But in every conflict the same Queenly office is hers. By no earthly ‘power can she be dethroned. Each person, after anxious examination, without haste, with- ‘out passion, solemnly for himself must decide this great controversy. Any other rule attrib- utes infallibility to human laws, places them beyond question, and degrades all men to an unthinking passive obedience. . According to St. Augustine, an unjust law does not appear to be a law; lex esse non vide- tur que justa non fuerit ; and the great fathers of the Church, while adopting these words, de- clare openly that unjust laws are not binding. Sometimes they are called “ abuses,’ and not laws; sometimes “ violences,” and not laws. And here again the conscience of each person 'is the final arbiter. But this lofty principle is “not confined to the Church. A master of phi- losophy in early Europe, a name of intellectu- al renown, the eloquent Abelard, in Latin _yerses addressed to his son, has clearly express- ed the universal injunction:
Jussa potestatis terrenee discutienda
Coelestis tibi mox perficienda scias.
| Siquis divinis jubeat contraria jussis
Te contra Dominum pactio nulla trahat. ~The mandates of an earthly power are to be discussed; those of Heaven must at once be performed; nor can any agreement constrain us against God. Such is the rule of morals. Such, also, by the lips of judges and sages, has been the proud declaration of the English law, whence our own is derived. In this conviction patriots have fearlessly braved unjust com- mands, and martyrs have died.
_ And now, sir, the rule is commended to us. | _ The good citizen, as he thinks of the shivering |
fugitive, guilty of no crime, pursued, hunted down like a beast, while praying for Chris- tian help and deliverance, and as he reads the
requirements of this act, is filled with horror. Here is a despotic mandate, “to aid and as- sist in the prompt and efficient execution of _thislaw.” Again let me speak frankly. Not
rashly would I set myself against any provi- gion of law. This grave responsibility I would
not lightly assume. But here the path of duty
is clear. By the Supreme Law, which com- |
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their falliblé authors infallibility. To assume | mands me to do no injustice; by the compre- that they are always in conformity with those | hensive Christian Law of Brotherhood ; by the
Constitution, which I have sworn to support, I AM BOUND To DISOBEY THIS AcT. Never, in any capacity, can I render voluntary aid in its execution. Pains and penalties [ will endure ; but this great wrong I will not do. “I cannot obey; but I can suffer,” was the .exclamation of the author of Pilgrim’s Progress, when im- prisoned for disobedience to an earthly statute. Better suffer injustice than do it. Better be the victim than the instrument of wrong. Better be even the poor slave, returned to bondage, than the unhappy Commissioner.
There is, sir, an incident of history, which suggests a parallel, and affords a lesson of fidelity. Under the triumphant exertions of that Apostolic Jesuit, St. Francis Xavier, large numbers of the Japanese, amounting to as many as two hundred thousand—among them princes, generals, and the flower of the nobil- ity—were converted to Christianity. After- wards, amidst the frenzy of civil war, religious persecution arose, and the penalty of death was denounced against all who refused to trample upon the effigy of the Redeemer. This was the Pagan law of a Pagan land. But the delighted historian records that scarcely one from the multitudes of converts was guilty of this apostaey. The law of man was set at naught. Imprisonment, torture, death, were preferred. Thus did this people refuse to tram- ple on the painted image. Sir, multitudes among us will not be less steadfast in refusing to trample on the living image of their Re- deemer.
Finally, sir, for the sake of peace and tran- quillity, cease to shock the Public Conscience ; for the sake of the Constitution, cease to exer- cise a power which is nowhere granted, and which violates inviolable rights expressly se- cured. Leave this question where it was left by our fathers, at the formation of our National Government, in the absolute control of the States, the appointed guardians of Personal Liberty. Repeal this enactment. Let its ter- rors no longer rage through the land. Mindful of the lowly whom it pursues; mindful of the good men perplexed by its requirements ; in the name of charity, in the name of the Constitu- tion, repeal this enactment, totally and without delay. Be inspired by the example of Wash- ington. Be admonished by those words of Ori- ental piety—“ Beware of the groans of the wounded souls. . Oppress not to the utmost a single heart ;. for a solitary sigh has power to overset.a whole world.”
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