Part 28

Briefly, the States are prohibited from any "law or regulation" by which any "person" escaped from "service or labor" may be discharged 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 shall be tried and determined is not specified. All this is obviously within the control of each State. It may be by virtue of express legislation; in which event, any Legislature, justly careful of Personal Liberty, would surround the fugitive with every shield of Law and Constitution. But here a fact pregnant with Freedom must be studiously observed. The name _Slave_--that litany of wrong and woe--does not appear in the clause. Here is no 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 particular which forbids any interpretation except 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,--"impiously and cruelly" 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 was "_wrong_ to admit in the Constitution the idea that there could be property in men,"--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, really intended fugitive slaves, which is sometimes questioned, and, secondly, that, if they so intended, the language employed can be judicially regarded as justly applicable to fugitive slaves, which is often and earnestly denied,--then the whole proceeding, without any express legislation, may be left to ancient and authentic forms of the Common Law, familiar to the framers of the Constitution, and ample for the occasion. If the fugitive be seized without process, he will be entitled at once to his writ _de Homine Replegiando_, while the master, resorting to process, may find his remedy in the writ _de Nativo Habendo_, each requiring 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 gladius in vagina_, 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 proceeding 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 apply all protecting rules of evidence, and especially to require stringent proof, by competent 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. _Still further, to the Courts of each State must belong the determination of the question, to what class of persons, according to just rules of interpretation, the phrase "person held to service or labor" is strictly applicable._

Such is this much debated provision. The Slave States, at the formation of the Constitution, did not propose, as in cases of Naturalization and Bankruptcy, to empower the National Government _to establish an uniform rule_ for the rendition of fugitives from service, _throughout the United States_; they did not ask the National Government to charge itself in any way with this service; they did not venture to offend the country, and particularly the Northern States, by any such assertion of hateful pretension. They were content, under the sanctions of compact, in leaving it to the public sentiment of the States. There, I insist, it must remain.

* * * * *

Mr. President, I have occupied much time; but the great subject still stretches before us. One other point yet remains, which I must not leave untouched, and which justly belongs to the close. The Slave Act violates the Constitution, and shocks the Public Conscience. With modesty, and yet with firmness, let me add, Sir, it offends against the Divine Law. No such enactment is 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 human laws are beyond question is to claim for their fallible authors infallibility. To assume that they are always in conformity with the laws of God is presumptuously and impiously to exalt man even to equality with God. Clearly, human 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 arbiter 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, without passion, solemnly for himself must decide this great controversy. Any other rule attributes 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 videtur quæ justa non fuerit._[206] And the great Fathers of the Church, while adopting these words, declare openly that unjust laws are not binding. Sometimes they are called "iniquity," and not law; sometimes "violences," and not laws.[207] And here again the conscience of each person is final arbiter. But this lofty principle is not confined to the Church. Earlier than the Church, a sublime Heathen announced the same truth. After assailing indignantly that completest folly which would find the rule of justice in human institutions and laws, and then asking if the laws of tyrants are just simply because laws, Cicero declares, that, if edicts of popular assemblies, decrees of princes, and decisions of judges constitute right, then there may be a right to rob, a right to commit adultery, a right to set up forged wills; whereas he does not hesitate to say that pernicious and pestilent statutes can be no more entitled to the name of law than robber codes; and he concludes, in words as strong as those of St. Augustine, that an unjust law is null.[208] A master of philosophy in early Europe, of intellectual renown, the eloquent Abelard, in Latin verses addressed to his son, clearly expresses the universal injunction:--

"Jussa potestatis terrenæ discutienda: Coelestis tibi mox perficienda scias. Si quis divinis jubeat contraria jussis, Te contra Dominum pactio nulla trahat."[209]

[206] De Libero Arbitrio, Lib. I. c. 5. See Thomas Aquinas, Summa Theologica, 1ma 2dæ, Quæst. XCVI. art. 4; also, Balmez, Protestantism and Catholicity compared in their Effects on the Civilization of Europe, Ch. 53.

[207] _Magis iniquitas quam lex, magis violentiæ quam leges._ Thomas Aquinas, Summa Theol., 1ma 2dæ, Quæst. XC. art. 1, XCVI. art. 4. The supreme duty to God is recognized in a text of St. Basil, _Obediendum est in quibus mandatum Dei non impeditur_, quoted by Filmer, Patriarcha, Ch. III. § 3.

The mandates of an earthly power are to be discussed; those of Heaven must at once be performed; nor should we suffer ourselves to be drawn by any compact into opposition to God. Such is the rule of morals. Such, also, by the lips of judges and sages, is the proud declaration of English law, whence our own is derived. In this conviction, patriots have braved unjust commands, and martyrs have died.

[208] De Legibus, Lib. I. capp. 15, 16; Lib. II. capp. 5, 6. The conclusion appears in the dialogue between Cicero and his brother Quintus.

ARC. Ergo est lex justorum injustorumque distinctio, ad illam antiquissimam et rerum omnium principem expressa naturam....

"QUINT. Præclare intelligo; nec vero jam aliam esse ullam legem puto non modo habendam, sed ne appellandam quidem."

Among moderns, the Abbé de Mably, in an elaborate discussion, adopts the conclusion of Cicero, as well as his treatment of it by dialogue, making his interlocutor, Lord Stanhope, ask, "What other remedy can be applied to this evil than disobedience?" and representing him as "pulverizing without difficulty the miserable commonplaces in opposition."--_Des Droits et des Devoirs du Citoyen_, Lettre IV. OEuvres (Paris, 1797), Tom. XI. pp. 249, 251.

Cicero was not alone among ancients in submission to an overruling law, nowhere pictured in greater sovereignty than by Sophocles, in a famous verse of the _OEdipus Tyrannus_:--

Ϻέγας ἐν τούτοις Θεός, οὐδὲ γηράσκει.--v. 845 [871].

Great in these laws is God, and grows not old.

[209] Versus ad Astralabium Filium: Opera (ed. Cousin), Tom. I. pp. 341, 342.

And now, Sir, the rule is commended to us. The good citizen, who sees before him the shivering fugitive, guilty of no crime, pursued, hunted down like a beast, while praying for Christian help and deliverance, and then reads the requirements of this Act, is filled with horror. Here is a despotic mandate "to aid and assist in the prompt and efficient execution of this law."[210] Again let me speak frankly. Not rashly would I set myself against any requirement of law. This grave responsibility I would not lightly assume. But here the path of duty is clear. By the Supreme Law, which commands me to do no injustice, by the comprehensive 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 I will endure, but this great wrong I will not do. "Where I cannot obey actively, there I am willing to lie down and to suffer what they shall do unto me": such was the exclamation of him to whom we are indebted for the "Pilgrim's Progress," while in prison for disobedience to an earthly statute.[211] Better suffer injustice than do it. Better victim than instrument of wrong. Better even the poor slave returned to bondage than the wretched Commissioner.

[210] Fugitive Slave Act, September 18, 1850, Sec. 5.

[211] Relation of the Imprisonment of Mr. John Bunyan, written by Himself: Works (Glasgow, 1853), Vol. I. pp. 59, 60. Balmez, the Spanish divine, whose vindication of the early Catholic Church is a remarkable monument, declares, after careful discussion, "that the rights of the civil power are limited, that there are things beyond its province,--cases in which a man may say, and ought to say, _I will not obey_." (Protestantism and Catholicity Compared, Ch. 54.) Devices to avoid the enforcement of unjust laws illustrate this righteous disobedience,--as where English juries, before the laws had been made humane, found an article stolen to be less than five shillings in value, in order to save the criminal from capital punishment. In the Diary of John Adams, December 14, 1779, at Ferrol, in Spain, there is a curious instance of law requiring that a convicted parricide should be headed up in a hogshead with an adder, a toad, a dog, and a cat, and then cast into the sea; but in a case that had recently occurred the barbarous law was evaded by painting these animals on a hogshead containing the dead body of the criminal. (Works, Vol. III. p. 233.) In similar spirit, the famous President Jeannin, high in the magistracy and diplomacy of France, when called to a consultation on a mandate of Charles the Ninth, at the epoch of St. Bartholomew, said, "We must obey the sovereign slowly, when he commands in anger"; and he concluded by asking "letters patent before executing orders so cruel." (Biographie Universelle, art. _Jeannin Pierre_.) The remark of Casimir Périer, when Prime-Minister, to Queen Hortense, that it might be "legal" for him to arrest her, but not "just," makes the same distinction. (Guizot, Mémoires pour servir à l'Histoire de mon Temps, Tom. II. p. 219. See _ante_. Vol. II. pp. 398, 399.) The case is stated with perfect moderation by Grotius, when he says that human laws have _a binding force_ only when they are made in a humane manner, not if they impose a burden which is plainly abhorrent to reason and Nature,--_non si onus injungant quod a ratione et natura plane abhorreat_. (De Jure Belli ac Pacis, Lib. III. Cap. XXIII. v. 3; also Lib. I. Cap. IV. vii. 2, 3.) These latter words aptly describe the "burden" imposed by the Slave Act.

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 Japanese, amounting to as many as two hundred thousand,--among them princes, generals, and the flower of the nobility,--were converted to Christianity. Afterwards, 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 from the multitude of converts scarcely one was guilty of this apostasy. The law of man was set at nought. Imprisonment, torture, death, were preferred. Thus did this people refuse to trample on the painted image. Sir, multitudes among us will not be less steadfast in refusing to trample on the living image of their Redeemer.

Finally, Sir, for the sake of peace and tranquillity, cease to shock the Public Conscience; for the sake of the Constitution, cease to exercise a power nowhere granted, and which violates inviolable rights expressly secured. 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 terrors 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 Constitution, repeal this enactment, totally and without delay. There is the example of Washington; follow it. There also are words of Oriental piety, most touching and full of warning, which speak to all mankind, and now especially to us: "Beware of the groans of wounded souls, since the inward sore will at length break out. Oppress not to the utmost a single heart; for a solitary sigh has power to overturn a whole world."

* * * * * *

Transcriber's note:

The punctuation and spelling are as in the original publication with the exception of the following:

Professor Stearns, who resided in Cambridge, was occucupied . . . was changed to Professor Stearns, who resided in Cambridge, was occupied . . .

. . . leaning for support on the great Truimvirate was changed to . . . leaning for support on the great Triumvirate