American Eloquence, Volume II. (of 4) by Various

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The provision, showing itself thus tardily, and so slightly regarded in
the National Convention, was neglected in much of the contemporaneous
discussion before the people. In the Conventions of South Carolina,
North Carolina,and Virginia, it was commended as securing important
rights, though on this point there was difference of opinion. In the
Virginia 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 exhibiting peculiar sensitiveness at
any responsibility for slavery, seemed to view it with unconcern. One
of her leading statesmen, General Heath, in the debates of the State
Convention, strenuously asserted, that, in ratifying the Constitution,
the people of Massachusetts "would do nothing to hold the blacks in
slavery." "_The Federalist_," in its classification of the powers of
Congress, describes and groups a large number as "those which provide
for the harmony and proper intercourse among the States," and
therein speaks of the power over public records, standing next in the
Constitution to the provision concerning fugitives from service; but it
fails to recognize the latter among the means of promoting "harmony and
proper intercourse;" nor does its triumvirate of authors anywhere allude
to the provision.

The indifference thus far attending this subject still continued. The
earliest Act of Congress, passed in 1793, drew little attention. It was
not suggested originally by any difficulty or anxiety touching fugitives
from service, nor is there any contemporary record, in debate or
otherwise, showing that any special importance was attached to its
provisions in this regard. The attention of Congress was directed to
fugitives from justice, and, with little deliberation, it undertook, in
the same bill, to provide for both 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 inquirer we learn that twenty-six years elapsed before
it was successfully enforced in any Free State. It is certain, that, in
a case at Boston, towards the close of the last century, 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 executed. It is also certain, that, in
Vermont, at the beginning of the century, a Judge of the Supreme Court
of the State, on application for the surrender of an alleged slave,
accompanied by documentary evidence, gloriously refused compliance,
unless the master could show a Bill of Sale from the Almighty. Even
these cases passed without public comment.

In 1801 the subject was introduced in the House of Representatives by
an effort for another Act, which, on consideration, was rejected. At
a later day, in 1817-18, though still disregarded by the country, it
seemed to excite a short-lived interest in Congress. In the House of
Representatives, on motion of Mr. Pindall, of Virginia, a committee was
appointed to inquire into the expediency of "providing more effectually
by law for reclaiming servants and slaves escaping from one State into
an-other," and a bill reported by them to amend the Act of 1793, after
consideration for several days in Committee of the Whole, was passed.
In the Senate, after much attention and warm debate, it passed with
amendments. But on return to the House for adoption of the amendments,
it was dropped. This effort, which, in the discussions of this subject,
has been thus far unnoticed, is chiefly remarkable as the earliest
recorded evidence of the unwarrantable assertion, now so common, that
this provision was originally of vital importance 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
Fugitive Slave Bill. As I read this statute, I am filled with painful
emotions. The masterly subtlety with which it is drawn might challenge
admiration, if exerted for a benevolent purpose; but in an age of
sensibility and refinement, 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, I shrink from no responsibility. 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 take part against this Act.

But I am to regard it now chiefly as an infringement of the
Constitution. Here its outrages, flagrant as manifold, assume the
deepest dye and broadest character only when we consider that by its
language it is not restricted 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 complexion 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 tyrannical proceeding. If there be
any whose sympathies are not moved for the slave, who do not cherish the
rights of the humble African, struggling 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."

Whilst thus comprehensive in its provisions, and applicable to all,
there is no safeguard of Human Freedom which the monster Act does not
set at nought.

It commits this great question--than which none is more sacred in the
law--not to a solemn trial, but to summary proceedings.

It commits this great question, not to one of the high tribunals of the
land, but to the unaided judgment of a single petty magistrate.

It commits this great question to a magistrate appointed, not by the
President with the consent of the Senate, but by the Court,--holding
office, not during good behavior, but merely during the will of the
Court,--and receiving, not a regular salary, but fees according to each
individual case.

It authorizes judgment on _ex parte_ evidence, by affidavit, without the
sanction of cross-examination.

It denies the writ of _Habeas Corpus_, ever known as the palladium of
the citizen.

Contrary to the declared purposes of the framers of the Constitution, it
sends the fugitive back "at the public expense."

Adding meanness to violation of the Constitution, it bribes the
Commissioner by a double stipend 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.

The Constitution expressly secures the "free exercise of religion"; but
this Act visits with unrelenting penalties the faithful men and women
who render to the fugitive that countenance, succor, and shelter which
in their conscience "religion" requires; and thus is practical religion
directly assailed. Plain commandments are broken; and are we not told
that "Whosoever shall break one of these least commandments, and shall
teach men so, he shall be called the least in the kingdom of Heaven"?

As it is for the public weal that there should be an end of suits, so by
the consent of civilized nations these must be instituted within fixed
limitations of time; but this Act, exalting Slavery above even this
practical principle of universal justice, ordains proceedings against
Freedom without any reference to the lapse of time.

Glancing only at these points, and not stopping for argument,
vindication, or illustration, I come at once upon two chief radical
objections to this Act, identical in principle with those triumphantly
urged by our fathers against the British Stamp Act; first, that it is a
usurpation by Congress of powers not granted by the Constitution, 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. Either of these objections, if sustained, strikes at the
very root of the Act. That it is obnoxious to both is beyond doubt.

Here, at this stage, I encounter the difficulty, that these objections
are already foreclosed by legislation of Congress and decisions of the
Supreme Court,--that as early as 1793 Congress assumed power over this
subject by an Act which failed to secure Trial by Jury, and that the
validity of this Act under the Constitution has been affirmed by the
Supreme Court. On examination, this difficulty will disappear.

The Act of 1793 proceeded from a Congress that had already recognized
the United States Bank, chartered by a previous Congress, which,
though sanctioned by the Supreme Court, has been since in high quarters
pronounced unconstitutional. If it erred as to the Bank, it may have
erred also as to fugitives from service. But the Act itself 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
interpretation of the Constitution. I dismiss it.

The decisions of the Supreme Court are entitled to great consideration,
and will not be mentioned by me except with respect. Among the memories
of my youth are happy days when I sat at the feet of this tribunal,
while MARSHALL presided, with STORY by his side. The pressure now
proceeds from the case of Prigg v. Pennsylvania (16 Peters, 539), where
is asserted the power of Congress. Without going into minute
criticism of this judgment, or considering the extent to which it is
extra-judicial, and therefore of no binding force,--all which has been
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 judiciary on
this particular point, still it does not touch the grave question which
springs from the denial of Trial by Jury. This judgment was pronounced
by Mr. Justice Story. From the interesting biography of the great
jurist, recently published by his son, we learn that the question of
Trial by Jury was not considered as before the Court; so that, in the
estimation of the learned judge himself, it was still an open question.

* * * * *

(1). _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 accompanied by a power,--but
not necessarily, for it is essentially distinct in nature. And here the
single question arises, Whether the Constitution, by grant, general or
special, confers upon Congress any power to legislate on the subject of
fugitives from service.

* * * * *

The framers of the Constitution were wise and careful, having a reason
for what they did, and understanding the language they employed. They
did not, after discussion, incorporate into their work any superfluous
provision; nor did they without design adopt the peculiar arrangement
in which it appears. Adding to the record compact an express grant of
power, they testified not only their desire for such power in Congress,
but their conviction that without such express grant it would not
exist. But if express grant was necessary in this case, it was equally
necessary in all the other cases. _Expressum facit cessare tacitum_.
Especially, in view of its odious character, was it necessary in the
case of fugitives from service. Abstaining from any such grant, and then
grouping the bare compact with other similar compacts, separate from
every grant of power, they testified their purpose most significantly.
Not only do they decline all addition to the compact of any such power,
but, to render misapprehension impossible, to make assurance doubly
sure, to exclude any contrary conclusion, they punctiliously arrange the
clauses, on the principle of _noscitur a sociis_, 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,
severed from the naked compacts with which it was originally associated.

Thus the proceedings of the Convention show that the founders understood
the necessity of powers in certain cases, and, on consideration,
jealously granted them. A closing example will strengthen the argument.
Congress is expressly empowered "to 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 fallen within the control of the States, leaving the nation
powerless to establish a uniform rule thereupon. Now, instead of the
existing compact on fugitives from service, 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 A
UNIFORM RULE FOR THE SURRENDER OF FUGITIVES FROM SERVICE THROUGHOUT THE
UNITED STATES. Then, of course, whenever Congress undertook to exercise
the power, all State control of the subject would be superseded. The
National Government would have been constistuted, 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 jurisdictions, throughout all the States. But no person
in the Convention, not one of the reckless partisans of slavery, was so
audacious as to make this proposition. Had it been distinctly made, it
would have been as 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 national power for 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 NOT to give any sanction
to it,"--Roger Sherman, who "was OPPOSED to a tax on slaves imported,
because it implied they were property,"--James Madison, who "thought it
WRONG to admit in the Constitution the idea that there could be property
in men,"--and Benjamin Franklin, who likened American slaveholders to
Algerine corsairs. In the face of these unequivocal judgments, it is
absurd to suppose that these eminent citizens consented unanimously to
any provision by which the National Government, the creature of their
hands, dedicated to freedom, could become the most offensive agent of
Slavery.

Thus much for the evidence from the history of the Convention. But
the true principles 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 adequate powers. They had known the perils of
imbecility, discord, and confusion, protracted through the uncertain
days of the Confederation, and they desired a government which should
be a true bond of union and an efficient organ of national interests at
home and abroad. But while fashioning this agency, they fully recognized
the governments of the States. To the nation were delegated high powers,
essential to the national interests, but specific in character and
limited in number. To the States and to the people were reserved the
powers, general in character and unlimited in number, not delegated to
the nation or prohibited to the States.

The integrity of our political system depends upon harmony in the
operations of the Nation and of the States. While the nation 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 interfere 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.

* * * * *

I have already amply shown to-day that Slavery is in no respect
national--that it is not within the sphere of national activity,--that
it has no "positive" support in the Constitution,--and that any
interpretation 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 to the spirit and letter of the
Constitution, to claim for Congress any power to legislate either for
its abolition in the States or its support anywhere. Non-Intervention
is the rule prescribed to the nation. Regarding the question in its more
general aspects only, 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 possibly
spring.

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 peculiar guardians of
personal liberty. By jury and habeas corpus to save the citizen harmless
against all assault is among their duties and rights. To his State the
citizen, when oppressed, may appeal; nor should he find that appeal
denied. But this Act despoils him of rights, and despoils his State
of all power to protect him. It subjects him to the wretched chance of
false oaths, forged papers, and facile commissioners, and takes from
him every safeguard. 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 free man--an equal
right to be secure at home in the enjoyment of freedom. The same
principle of State rights by which Slavery is protected in the slave
States throws an impenetrable shield over Freedom 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 Government to stretch its Briarean
arms into the free States for the sake of Slavery, you show openly 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.

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 Constitution, 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 nation 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 of 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.

To me, Sir, regarding this matter in the light of the Common Law and
in the blaze of free institutions, 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 to Freedom, all the suggestions of justice, plead
angel-tongued for this right. Nobody 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 Constitution.

Several expressions in the provision for the surrender of fugitives from
service show the essential 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 service in the State which
he escaped. In the second place, he must "be delivered up on claim
of the party to whom such service or labor may be due." These two
facts--that he was held to service, and that his service was due to
his claimant--are directly placed in issue, and must be proved. Two
necessary incidents of the delivery may also be observed. First, it
is made in the State where the fugitive is found; and, secondly,
it restores to the claimant complete control over the person of the
fugitive. From these circumstances it is evident 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.

These proceedings determine on the one side the question of property,
and on the other the sacred question of personal liberty in its most
transcendent form,--Liberty not merely for a day or a year, but for
life, and the Liberty of generations that shall come after, so long as
Slavery endures. To these questions the Constitution, by two specific
provisions, attaches Trial by Jury. One 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 proceeding 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 controversy shall exceed twenty dollars, the
right of Trial by Jury shall be preserved." This clause, which does not
appear in the Constitution as first adopted, was suggested by the very
spirit of freedom. At the close of the National Convention, Elbridge
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
Congress this additional safeguard was adopted as an amendment.

Opposing this Act as doubly unconstitutional from the want of power
in Congress and from the denial of trial by jury, I find myself again
encouraged by the example of our Revolutionary Fathers, in a case which
is a landmark of history. The parallel is important and complete. In
1765, the British Parliament, 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 signal for a general flame of opposition
and indignation throughout the colonies. It was denounced as contrary
to the British Constitution, on two principal grounds--first, as
a usurpation 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 day the
act was to take effect, 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 the friends of liberty were
summoned to hold themselves in readiness for her funeral. At New York,
the obnoxious Act, headed "Folly of England and Ruin of America,"
was contemptuously hawked about the streets. Bodies of patriots were
organized everywhere under the name of "Sons of Liberty." The merchants,
inspired then by liberty, resolved to import no more goods from England
until the repeal of the Act. The orators also spoke. James Otis with
fiery tongue appealed to Magna Charta.

* * * * *

Sir, regarding the Stamp Act candidly and cautiously, free from
animosities of the time, it is impossible not to see that, though
gravely unconstitutional, it was at most an infringement of civil
liberty only, not of personal liberty. There was an unjust tax of a few
pence, with the chance of amercement by a single judge without a jury;
but by no provision of this act was the personal liberty of any man
assailed. No freeman could be seized under it as a slave. Such an act,
though justly obnoxious to every lover of constitutional 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
infringe important rights: one, of property; the other, the vital right
of all, which is to other rights as soul to 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 dollar that he owns, as heaven, to which we all
aspire, is higher than earth, where every accumulation of wealth must
ever remain, so are the rights assailed by an American Congress higher
than those once assailed by the British Parliament. And just in this
degree must history condemn the Slave Act more than the Stamp Act.

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