Part 13

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 his 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."[64]

[64] See Madison's Debates, August 28, 1787.

Adding meanness to the violation of the Constitution, 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.

This is enough, but not all. On two other capital grounds do I oppose the Act as unconstitutional: first, as it is an assumption by Congress of powers not delegated by the Constitution, and in derogation of the rights of the States; and, secondly, as it takes away that essential birthright of the citizen, trial by jury, in a question of personal liberty and a suit at Common Law. Thus obnoxious, I have always regarded it as an enactment totally devoid of all constitutional, as it is clearly devoid of all moral obligation, while it is disgraceful to the country and the age. And, Sir, I have hoped and labored for the creation of such a Public Opinion, firm, enlightened, and generous, as should render this Act practically inoperative, and should press, without ceasing, upon Congress for its repeal. For all that I have thus uttered I have no regret or apology, but rather joy and satisfaction. Glad I am in having said it; glad I am now in the opportunity of affirming it all anew. Thus much for myself.

In response for Massachusetts, there are other things. Something surely must be pardoned to her history. In Massachusetts stands Boston. In Boston stands Faneuil Hall, where, throughout the perils which preceded the Revolution, our patriot fathers assembled to vow themselves to Freedom. Here, in those days, spoke James Otis, full of the thought that "the people's safety is the law of God."[65] Here, also, spoke Joseph Warren, inspired by the sentiment that "death with all its tortures is preferable to Slavery."[66] And here, also, thundered John Adams, fervid with the conviction that "consenting to Slavery is a sacrilegious breach of trust."[67] Not far from this venerable hall--between this Temple of Freedom and the very court-house to which the Senator [Mr. JONES] has referred--is the street where, in 1770, the first blood was spilt in conflict between British troops and American citizens, and among the victims was one of that African race which you so much despise. Almost within sight is Bunker Hill; further off, Lexington and Concord. Amidst these scenes a Slave-Hunter from Virginia appears, and the disgusting rites begin by which a fellow-man is sacrificed. Sir, can you wonder that our people are moved?

"Who can be wise, amazed, temperate and furious, Loyal and neutral, in a moment? _No man._"

[65] Rights of the British Colonies (Boston, 1764), p. 10.

[66] Letter to Edmund Dana, March 19, 1766: Loring's Hundred Boston Orators, 2d ed., p. 51.

[67] Dissertation on the Canon and Feudal Law: Works, Vol. III. p. 463.

It is true that the Slave Act was with difficulty executed, and that one of its servants perished in the madness. On these grounds the Senator from Tennessee charges Boston with fanaticism. I express no opinion on the conduct of individuals; but I do say, that the fanaticism which the Senator condemns is not new in Boston. It is the same which opposed the execution of the Stamp Act, and finally secured its repeal. It is the same which opposed the Tea Tax. It is the fanaticism which finally triumphed on Bunker Hill. The Senator says that Boston is filled with traitors. That charge is not new. Boston of old was the home of Hancock and Adams. Her traitors now are those who are truly animated by the spirit of the American Revolution. In condemning them, in condemning Massachusetts, in condemning these remonstrants, you simply give proper conclusion to the utterance on this floor, that the Declaration of Independence is "a self-evident lie."

Here I might leave the imputations on Massachusetts. But the case is stronger yet. I have referred to the Stamp Act. The parallel is of such aptness and importance, that, though on a former occasion I presented it to the Senate, I cannot forbear from pressing it again. As the precise character of this Act may not be familiar, allow me to remind the Senate that it was an attempt 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 trial by jury. This Act was denounced in the Colonies at its passage, as contrary to the British Constitution, on two principal grounds, identical in character with the two chief grounds on which the Slave Act is now declared to be unconstitutional: first, as an assumption 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. On these grounds the Stamp Act was held to be an outrage.

The Colonies were aroused against it. Virginia first declared herself by solemn resolutions, which the timid thought "treasonable,"--yes, Sir, "treasonable,"[68]--just as that word is now applied to recent manifestations of opinion in Boston,--even to the memorial of her twenty-nine hundred merchants. But these "treasonable" resolutions soon found response. New York followed. Massachusetts came next. In an address from the Legislature to the Governor, the true ground of opposition to the Stamp Act, coincident with the two radical objections to the Slave Act, are clearly set forth, with the following pregnant conclusion:--

"We deeply regret it 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 point of light as shall induce them, in their wisdom, to repeal it; _in the mean time we must beg your Excellency to excuse us from doing anything to assist in the execution of it_."[69]

[68] Hutchinson, History of Massachusetts, Vol. III. p. 119.

[69] Journal of the House of Representatives of Massachusetts Bay, October 24, 1765, p. 135. Hutchinson, Vol. III., Appendix, p. 474.

The Stamp Act was welcomed in the Colonies by the Tories of that day, precisely as the unconstitutional Slave Act has been welcomed by an imperious class among us. Hutchinson, at that time Lieutenant-Governor and Judge in Massachusetts, wrote to Ministers in England:--

"The Stamp Act is received among us with as much decency as could be expected. It leaves no room for evasion, and will execute itself."[70]

[70] Bancroft, History of the United States, Vol. V. p. 272.

Like Judges of our day, in charges to Grand Juries, he resolutely vindicated the Act, and admonished "the jurors and people" to obey.[71] Like Governors of our day, Bernard, in his speech to the Legislature of Massachusetts, demanded unreasoning submission. "I shall not," says this British Governor, "enter into any disquisition of the policy of the Act. I have only to say that it is an Act of the Parliament of Great Britain."[72] The elaborate answer of Massachusetts--the work of Samuel Adams, one of the pillars of our history--was pronounced "the ravings of a parcel of wild enthusiasts,"[73] even as recent proceedings in Boston, resulting in the memorial before you, have been characterized on this floor. Am I not right in this parallel?

[71] Ibid.

[72] Journal of the House of Representatives, September 25, 1765, p. 119. Hutchinson, Vol. III. p. 467.

[73] Bancroft, History of the United States, Vol. V. p. 349.

The country was aroused against the execution of the Act. And here Boston took the lead. In formal instructions to her Representatives, adopted unanimously 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 undoubted privilege, in the most open and unreserved, but decent and respectful terms, to declare our greatest dissatisfaction with this law: _and we think it 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 endeavors in the General Assembly to have the inherent, unalienable rights of the people of this Province asserted and vindicated, and left upon the public records, that posterity may never have reason to charge the present times with the guilt of tamely given them away."[74]

[74] Boston Gazette, September 23, 1765.

The opposition spread and deepened, with a natural tendency to outbreak and violence. On one occasion in Boston, it showed itself in the lawlessness of a mob most formidable in character, even as is now charged. Liberty, in her struggles, is too often driven to force. But the town, at a public meeting in Faneuil Hall, called without delay, on the motion of the opponents of the Stamp Act, with James Otis as Chairman, condemned the outrage. Eager in hostility to the execution of the Act, Boston cherished municipal order, and constantly discountenanced all tumult, violence, and illegal proceeding. On these two grounds she then stood: and her position was widely recognized. In reply, March 24, 1766, to an address from the inhabitants of Plymouth, her own consciousness of duty done is thus expressed:--

"If the inhabitants of this metropolis have taken _the warrantable and legal 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 preventing it, have made any spirited applications for opening the custom-houses and courts of justice,--_if, at the same time, they have bore their testimony against outrageous tumults and illegal proceedings_, and given any example of the love of peace and good order, next to the consciousness of having done their duty is the satisfaction of meeting with the approbation of any of their fellow-countrymen."[75]

[75] Boston Gazette, March 31, 1766.

Thus was the Stamp Act annulled, even before its actual repeal, which was pressed with assiduity by petition and remonstrance, at the next meeting of Parliament. Among potent influences was the entire concurrence of the merchants, and especially a remonstrance against the Stamp Act by merchants of New York, like that now made against the Slave Act by merchants of Boston. Some at first sought only its mitigation. Even James Otis began with this moderate aim. The King himself showed a disposition to yield to this extent. But Franklin, who was then in England, when asked whether the Colonies would submit to the Act, if mitigated in certain particulars, replied: "No, never, unless compelled by force of arms."[76] Then it was that the great Commoner, William Pitt, in an ever-memorable speech, uttered words which fitly belong to this occasion. He said:--

"Sir, I have been charged with giving birth to sedition in America. They have spoken their sentiments with freedom against this unhappy Act, and that freedom has become their crime. Sorry I am to hear the liberty of speech in this House imputed as a crime. But the imputation shall not discourage me. It is a liberty I mean to exercise. No gentleman ought to be afraid to exercise it. It is a liberty by which the gentleman who calumniates it might have profited. He ought to have profited. He ought to have desisted from his project. The gentleman tells us America is obstinate, America is almost in open rebellion. I 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 the rest.... I would not debate a particular point of law with the gentleman; but I draw my ideas of Freedom from the vital powers of the British Constitution,--not from the crude and fallacious notions too much relied upon, as if we were but in the morning of Liberty. I can acknowledge no veneration for any procedure, law, or ordinance, that is repugnant to reason and the first elements of our Constitution.... The Americans have been wronged. They have been driven to madness by injustice.... Upon the whole, I will beg leave to tell the House what is really my opinion. _It is, that the Stamp Act be repealed, absolutely, totally, and immediately,--that the reason for the repeal be assigned, because it was founded on an erroneous principle._"[77]

[76] Hansard, Parliamentary History, XVI. 140.

[77] Hansard, Parliamentary History, XVI. 103-108. Bancroft, History of the United States, V. 391-395.

Thus spoke this great orator, at the time tutelary guardian of American Liberty. He was not unheeded. Within less than a year from its original passage, the Stamp Act--assailed as unconstitutional on the precise grounds which I now occupy in assailing the Slave Act--was driven from the statute-book.

Sir, the Stamp Act was, at most, an infringement of _civil_ liberty only, not of _personal_ liberty. How often must I say this? It touched questions of property only, and not the personal liberty of any man. Under it, no freeman could be seized as a slave. There was an unjust tax of a few pence, with the chance of amercement by a single judge without jury; but by this statute no person could be deprived of that vital right of all which is to other rights as soul to body,--_the right of a man to himself_. Who can fail to see the difference between the two cases, and how far the tyranny of the Slave Act is beyond the tyranny of the Stamp Act? The difference is immeasurable. And this will yet be pronounced by history.

I call upon you, then, to receive the petition, and hearken to its prayer. All other petitions asking for change in existing legislation are treated with respect, promptly referred and acted upon. This should not be an exception. The petition asks simply the repeal of an obnoxious statute, which is entirely within the competency of Congress. It proceeds from a large number of respectable citizens, whose autograph signatures are attached. It is brief and respectful, and, in its very brevity, shows that spirit of freedom which should awaken a generous response. In refusing to receive it or refer it, according to the usage of the Senate, or in treating it with any indignity, you offer an affront not only to these numerous petitioners, but also to the great Right of Petition, which is never more sacred than when exercised in behalf of Freedom against an odious enactment. Permit me to add, that by this course you provoke the very spirit which you would repress. There is a plant which is said to grow when trodden upon. It remains to be seen if the Boston petitioners have not something of this quality. But this I know, Sir,--that the Slave Act, like Vice, is

"a monster of so frightful mien, As, to be hated, needs but to be seen."

And the occurrences of this day will make it visible to the people in new forms of injustice.

REPLY TO ASSAILANTS:

OATH TO SUPPORT THE CONSTITUTION; WEAKNESS OF THE SOUTH FROM SLAVERY.

SECOND SPEECH IN THE SENATE ON THE BOSTON PETITION FOR THE REPEAL OF THE FUGITIVE SLAVE ACT, JUNE 28, 1854.

The preceding speech was followed by a debate without example in anger, excitement, and brutality. Mr. Butler, of South Carolina, Mr. Mason, of Virginia, Mr. Pettit, of Indiana, Mr. Dixon, of Kentucky, Mr. Mallory, of Florida, and Mr. Clay, of Alabama, vied with each other in bullying denunciation of Mr. Sumner.

Mr. Butler began by claiming that the American Revolution was carried through by "slaveholding States," thus making boast for Slavery,--and then turned to pour contempt upon Mr. Sumner, whose speech he characterized as "a species of rhetoric intended to feed the fires of fanaticism in his own State"; then it was "a Fourth of July Oration,"--"vapid rhetoric,"--"a species of rhetoric which ought not to come from a scholar,"--"a rhetoric with more fine color than real strength"; and then he announced, "If sectional agitation is to be fed by such sentiments, such displays, and such things as come from the honorable gentleman near me, I say we ought not to be in a common confederacy, and we should be better off without it." Then again, "If the object be to make the issue between the North and the South, let the issue come." He then asked if Massachusetts "would send fugitives back to us after trial by jury or any other mode?" Then, turning to Mr. Sumner, he demanded, with much impetuosity of manner, "Will this honorable Senator tell me that he will do it?" To which Mr. Sumner promptly replied, "Is thy servant a dog, that he should do this thing?" The _Globe_ reports the disorderly ejaculations which followed from Mr. Butler, winding up with the words, "You stand in my presence as a coëqual Senator, and tell me that it is a dog's office to execute the Constitution of the United States?" Here Mr. Sumner remarked, "I recognize no such obligation,"--meaning, plainly, no obligation to return a fugitive slave.

Mr. Mason, afterwards so conspicuous in the Rebellion, followed in similar vein. He began by saying: "I say, Sir, the dignity of the American Senate has been rudely, wantonly, grossly assailed by a Senator from Massachusetts,--and not only the dignity of the Senate, but of the whole people, trifled with in the presence of the American Senate, either ignorantly or corruptly, I do not know which, nor do I care." He then proceeded to vindicate the "gentleman from Virginia" who had sought his slave in Boston, denounced Mr. Sumner for having "the boldness to speak here of such a man as a slave-hunter," and boasted that the law had been executed in Boston,--that "in that city, within the last fortnight, it has done its office, and done it in the presence of a mob, which that Senator and his associates roused and inflamed to the very verge of treason, subjecting them to traitors' doom, while he and his associates sat here and kept themselves aloof from danger." Then he exclaimed: "Why, Sir, am I speaking of a fanatic, one whose reason is dethroned? Can such a one expect to make impressions upon the American people from his vapid, vulgar declamation here, accompanied by a declaration that he would violate his oath now recently taken?"

All that was said by these two representatives of Slavery was intensified and aggravated by Mr. Pettit, of Indiana, who charged Mr. Sumner with openly declaring in the Senate that he would violate his oath, and then proceeded to foreshadow a proposition for his expulsion. At the same time he vindicated at length his original statement, that the construction put upon the Declaration of Independence by the Abolitionists of the country "made it a self-evident lie, instead of a self-evident truth." At this stage the Senate adjourned, leaving the question of reference still pending.

The next day was occupied by other business, contrary to the declared desire of Mr. Sumner, who said that he had "something further to say" upon the petition. On the 28th of June the attack on Mr. Sumner was renewed by Mr. Pettit, but without taking up the petition. An attempt was made to stifle further debate. Motions to postpone, and then to lay on the table, were proposed, when Mr. Sumner remarked:--

I am unwilling to stand in the way of the general wish of the Senate to go on with its business; I desire at all times to promote its business; but this question has been presented and debated. Several Senators have already expressed themselves on it. Other Senators within my knowledge expect to be heard. I too, Sir, claim the privilege of being heard again, in reply to remarks which have fallen from honorable Senators. I hope, therefore, the memorial will have no disposition that shall preclude its complete discussion.

The Senate refused to postpone, and Mr. Mallory, of Florida, afterwards Secretary of the Navy in the cabinet of Jefferson Davis, began the assault on Mr. Sumner, expressing horror at his declarations in the Senate, and then adducing his early language in the Boston speech so often referred to. The future rebel dwelt with unction on the obligations of an oath, saying: "Sir, if there be any principle in the breast of the American citizen which more than any other lies at the foundation of law, morals, and society, it is his habitual observance and recognition of _all_ the sacred obligations of an oath; and this no man knows better than the Senator himself." Mr. Clay, of Alabama, afterwards a violent rebel, succeeded in interpolating into the speech of Mr. Mallory a tirade of personality and brutality, which will be found in the _Globe_, and, after presenting a portrait meant for Mr. Sumner, "who held himself irresponsible to all law, feeling the obligation neither of the Divine law, nor of the law of the land, _nor of the law of honor_," proceeded to ask, "How would such a miscreant be treated? Why, if you could not reach him with the arm of the municipal law, if you could not send him to the Penitentiary, you would _send him to Coventry_." And the orator of Slavery wound up by saying: "If we cannot restrain or prevent this eternal warfare upon the feelings and rights of Southern gentlemen, we may rob the serpent of his fangs, we can paralyze his influence, by placing him in that nadir of social degradation which he merits."

This brief account of the debate is important, as showing the atmosphere of the Senate, and the personal provocation, when Mr. Sumner at last obtained the floor and spoke as follows.

Mr. President,--Since I had the honor of addressing the Senate two days ago, various Senators have spoken. Of these, several have alluded to me in terms clearly beyond the sanction of parliamentary debate. Of this I make no complaint, though, for the honor of the Senate, at least, it were well, had it been otherwise. If to them it seems fit, courteous, parliamentary, let them

"unpack the heart with words, And fall a-cursing, like a very drab, A scullion";

I will not interfere with the enjoyment they find in such exposure of themselves. They have given us a taste of their quality. Two of them, the Senator from South Carolina [Mr. BUTLER], who sits immediately before me, and the Senator from Virginia [Mr. MASON], who sits immediately behind me, are not young. Their heads are amply crowned by Time. They did not speak from any ebullition of youth, but from the confirmed temper of age. It is melancholy to believe that in this debate they showed themselves as they are. It were charitable to believe that they are in reality better than they showed themselves.