Part 21

Thus far I have spoken of duties in national matters; but there are other duties of pressing importance, here at home, not to be forgotten or postponed. It is often said that charity should begin at home. Better say, _charity should begin everywhere_. While contending with the Slave Power on the broad field of national politics, we must not forget the duty of protecting the liberty of all who tread the soil of Massachusetts. [_Immense cheering._] Early in Colonial history Massachusetts set her face against Slavery. At the head of her Declaration of Rights she solemnly asserted that all men are born free and equal, and in the same Declaration surrounded the liberties of all within her borders by the inestimable rights of Trial by Jury and _Habeas Corpus_. Recent events on her own soil have taught the necessity of new safeguards to these great principles,--to the end that Massachusetts may not be the vassal of South Carolina and Virginia, that the Slave-Hunter may not range at will among us, and that the liberties of all may not be violated with impunity.

I am admonished that I must not dwell longer on these things. Suffice it to say that our duties in National and State affairs are identical, and may be described by the same formula: In the one case to put the National Government, in all its departments, and in the other case the State Government, in all its departments, openly, actively, and perpetually on the side of Freedom. [_Loud applause._]

* * * * *

Having considered _what_ our duties are, the question now presses, _How_ shall they be performed?--by what agency, by what instrumentality, in what way?

The most obvious way is by choosing men to represent us in the National Government, and also at home, who will recognize these duties, and be ever loyal to them [_cheers_],--men who at Washington will not shrink from conflict with Slavery, and also other men who at home in Massachusetts will not shrink from the same conflict when the Slave-Hunter appears. [_Loud applause, and cries of "Good! good!"_] In the choice of men we are driven to the organization of parties; and here the question arises, By what form of organization, or by what party, can these men be best secured? Surely not by the Democratic party, as at present constituted [_laughter_]: though, if this party were true to its name, pregnant with human rights, it would leave little to be desired. In this party there are doubtless individuals anxious to do all in their power against Slavery; but indulge me in saying, that, so long as they continue members of a party which upholds the Nebraska Bill, they can do very little. [_Applause and laughter._] What may we expect from the Whig party? [_A voice, "Resolutions."_] If more might be expected from the Whig party than the Democratic party, candor must attribute much of the difference to the fact that the Whigs are _out of power_, while the Democrats are _in power_. [_Long continued cheers._] If the cases were reversed, and the Whigs were in power, as in 1850, I fear, that, notwithstanding the ardor of individuals and the Resolutions of Conventions [_great laughter_],--made, I fear, too often, merely to be broken,--the party might be brought to sustain an outrage as great as the Fugitive Slave Bill. [_Laughter and applause._] But, without dwelling on these things (to which I allude with diffidence, and, I trust, in no uncharitable temper or partisan spirit), I desire to say that no party which calls itself _National_, according to the common acceptation of the word,--which leans upon a slaveholding wing [_cheers_], or is in combination with slaveholders [_cheers_],--can at this time be true to Massachusetts. [_Great applause._] And the reason is obvious. It can be presented so as to penetrate the most common understanding. _The essential element of such a party, whether declared or concealed, is Compromise; but our duties require all constitutional opposition to Slavery and the Slave Power, without Compromise._ ["_That's it!_" "_Good! good!_"] It is difficult, then, to see how we can rely upon the Whig party.

To the true-hearted, magnanimous citizens ready to place Freedom above Party, and their Country above Politicians, I appeal. [_Immense cheering._] Let them leave old parties, and blend in an organization which, without compromise, will maintain the good cause surely to the end. Here in Massachusetts a large majority concur in sentiment on Slavery,--a large majority desire the overthrow of the Slave Power. These must not scatter their votes, but unite in one firm, consistent phalanx [_applause_], whose triumph will constitute an epoch of Freedom, not only in this Commonwealth, but throughout the land. Such an organization is presented by this Republican Convention, which announces its purpose to coöperate with the friends of Freedom in other States. [_Cheers._] As REPUBLICANS, we go forth to encounter the _Oligarchs_ of Slavery. [_Great applause._]

Through this organization we shall secure the election of men who, unseduced and unterrified, will at Washington uphold the principles of Freedom,--and also here at home, in our own community, by example, influence, and vote, will help invigorate Massachusetts. I might go further, and say that by no other organization can we reasonably hope to obtain such men, unless in rare and exceptional cases.

Men are but instruments. It will not be enough to choose those who are loyal. Other things must be done here at home. In the first place, all existing laws for the protection of human freedom must be rigorously enforced [_applause, and cries of "Good!"_]; and since these are found inadequate, there must be new laws for this purpose within the limits of the Constitution. Massachusetts will do well in following Vermont, which by special law places the fugitive slave under the safeguard of Trial by Jury and the writ of _Habeas Corpus_. But a Legislature true to Freedom will not fail in remedies. [_Applause._] A simple prohibition, declaring that no person, holding the commission of Massachusetts as Justice of the Peace, or other magistrate, shall assume to act as a Slave-Hunting Commissioner, or as counsel of any Slave-Hunter, under some proper penalty, would go far to render the existing Slave Act inoperative. [_Applause._] There are not many so fond of this base trade as to continue in it, when the Commonwealth sets upon it a legislative brand.

Besides more rigorous legislation, Public Opinion must be invoked to step forward and throw over the fugitive its protecting ægis. A Slave-Hunter will then be a by-word and reproach; and all his instruments, especially every one who volunteers in this vileness without positive obligation of law, will naturally be regarded as part of his pack, and share the ignominy of the chief hunter. [_Laughter and cheers._] And now, from authentic example, drawn out of recent history, learn how the Slave-Hunter may be palsied by contrition. I take the story from late letters on Neapolitan affairs by the eminent English statesman, Mr. Gladstone, who has copied it from an Italian writer. A most successful member of the Neapolitan police, Bolza, of the hateful tribe known as _sbirri_, whose official duties involved his own personal degradation and the loathing of others, has left a record of the acute sense retained of his shame by even such a man. "I absolutely forbid my heirs," says this penitent official, "to allow any mark, of whatever kind, to be placed over the spot of my burial,--much more any inscription or epitaph. I recommend my dearly beloved wife to impress upon my children the injunction, that, in soliciting any employment from Government, they shall ask for it elsewhere than in the _executive police_, and not, unless under extraordinary circumstances, to give her consent to the marriage of any of my daughters with a member of that service."[135] Thus testifies the Italian instrument of legal wrong. Let public opinion here in Massachusetts once put forth its might, and every instrument of the Fugitive Slave Act will feel a kindred shame. [_Great applause._] They will resign. When, under the heartless Charles the Second of England, the Act of Uniformity went into operation, upwards of two thousand pulpits were vacated by the voluntary withdrawal of men who thought it better to face starvation than treachery to their Master. Here is an example for us. Let magistrates and officers, called to enforce a cruel injustice, take notice.

[135] Two Letters to the Earl of Aberdeen, on the State Prosecutions of the Neapolitan Government, by the Right Hon. W. E. Gladstone, (London, 1851,) Letter II. p. 45.

It is sometimes gravely urged, that, since the Supreme Court of the United States has affirmed the constitutionality of the Fugitive Act, there only remains to us, in all places, whether in public station or in private life, the duty of absolute submission. Yes, Sir, that is the assumption, which you will perceive is applied to the humblest citizen who holds no office and has taken no oath to support the Constitution, as well as to the public servant who is under the special obligations of an official oath. Now, without stopping to consider the soundness of the judgment affirming the constitutionality of this Act, let me say that the Constitution, as I understand it, exacts no such _passive obedience_. In taking the oath to support the Constitution, it is as I understand it, and not as other men understand it. [_Loud applause._]

In adopting this rule, first authoritatively enunciated by Andrew Jackson, when, as President of the United States, in the face of the Supreme Court, he asserted the unconstitutionality of the Bank, I desire to be understood as not acting hastily. Let me add, that, if it needed other authority in its support, it has the sanction also of the distinguished Cabinet by which he was then surrounded, among whom were that unsurpassed jurist, Edward Livingston, Secretary of State, and that still living exemplar of careful learning and wisdom, Roger B. Taney, then Attorney-General, now Chief-Justice of the United States. Beyond these, it has the unquestionable authority of Thomas Jefferson, by whom it was asserted again and again as a rule of conduct. Thus, if any person at this day be disposed to deal sharply with me on account of the support which I now most conscientiously give to this rule, let him remember that his thrusts will pierce not only myself, the humblest of its supporters, but also the great fame of Andrew Jackson and of Thomas Jefferson,--patriots both of eminent life and authority, on whose Atlantean shoulders this principle of Constitutional Law will ever firmly rest.

Reason here is in harmony with authority. From the necessity of the case I must swear to support the Constitution either _as I do understand it_ or _as I do NOT understand it_. [_Laughter._] But the absurdity of dangling on the latter horn of the dilemma compels me to take the former, and there is a natural end of the argument. [_Great laughter and cheers._] Is there a person in Congress or out of it, in the National Government or State Government, who, when this inevitable alternative is presented, will venture to say that he swears to support the Constitution as he does _not_ understand it? [_Laughter and applause._] The supposition is too preposterous. But let me ask gentlemen disposed to abandon their own understanding of the Constitution, and to submit their conscience to the standard of other men, By whose understanding do they swear? Surely not by that of the President: this is not alleged: but by the understanding of the Supreme Court. In other words, to this Court, being at present nine persons,--represented by a simple majority, it may be of _one_ only,--is accorded the power of fastening such interpretation as they see fit upon any part of the Constitution,--adding to it, or subtracting from it, or positively varying its requirements,--actually making and unmaking the Constitution; and to their work all good citizens must bow, as of equal authority with the original instrument, ratified by solemn votes of the whole people! [_Great applause._] If this be so, the oath to support the Constitution is hardly less offensive than the famous "et cætera" oath devised by Archbishop Laud, where the subject swore to certain specified things, with an "&c." added. Such an oath I have not taken. ["_Good! good!_"] An old poet anticipates my objection:--

"Who swears _&c._ swears more oaths at once Than Cerberus out of his triple sconce; Who views it well with the same eye beholds The old half serpent in his numerous folds Accursed."[136]

[136] Cleveland. See Hudibras, ed. Grey, Part I. Canto 2, Note to v. 650.

The power of our Supreme Court is great, and its sphere is vast; but there are limits to its power and its sphere. According to the Constitution, "the judicial power shall extend to _all cases_ in law and equity, arising under the Constitution, the laws of the United States, and treaties"; but it by no means follows that the interpretation of the Constitution, _incident_ to the trial of these "cases," is final. Of course, the judgment in the "case" actually pending is final, as the settlement of a controversy, for weal or woe, to the litigating parties; but as a _precedent_ it is not final even on the Supreme Court itself. When cited afterwards, it will be regarded with respect as an _interpretation of the Constitution_, and, if nothing appears against it, of controlling authority; but, at any day, in any litigation, at the trial of any "case," it will be within the unquestionable competency of the Court to review its own decision, _so far as it establishes any interpretation of the Constitution_. If the Court itself be not constrained by its own precedents, how can coördinate branches, under oath to support the Constitution, and, like the Court itself, called _incidentally_ to interpret the Constitution, be constrained by them? In both instances, the power to interpret is simply _incident_ to other principal duties, as the trial of "cases," the making of laws, or the administration of government; and it seems as plainly _incident_ to a "case" of legislation or of administration as to a "case" of litigation. And on this view I shall act with entire confidence, under the oath I have taken.

For myself, let me say, that I hold judges, and especially the Supreme Court, in much respect; but I am too familiar with the history of judicial proceedings to regard them with any superstitious reverence. [_Sensation._] Judges are but men, and in all ages have shown a full share of human frailty. Alas! alas! the worst crimes of history have been perpetrated under their sanction. The blood of martyrs and of patriots, crying from the ground, summons them to judgment. It was a judicial tribunal which condemned Socrates to drink the fatal hemlock, and which pushed the Saviour barefoot over the pavements of Jerusalem, bending beneath his cross. It was a judicial tribunal which, against the testimony and entreaties of her father, surrendered the fair Virginia _as a slave_,--which arrested the teachings of the great Apostle to the Gentiles, and sent him in bonds from Judæa to Rome,--which, in the name of the Old Religion, persecuted the saints and fathers of the Christian Church, and adjudged them to a martyr's death, in all its most dreadful forms,--and afterwards, in the name of the New Religion, enforced the tortures of the Inquisition, amidst the shrieks and agonies of its victims, while it compelled Galileo to declare, in solemn denial of the great truth he had disclosed, that the earth did not move round the sun. It was a judicial tribunal which, in France, during the long reign of her monarchs, lent itself to be the instrument of every tyranny, as during the brief Reign of Terror it did not hesitate to stand forth the unpitying accessary of the unpitying guillotine. Ay, Sir, it was a judicial tribunal in England, surrounded by all forms of law, which sanctioned every despotic caprice of Henry the Eighth, from the unjust divorce of his queen to the beheading of Sir Thomas More,--which lighted the fires of persecution that glowed at Oxford and Smithfield, over the cinders of Latimer, Ridley, and John Rogers,--which, after elaborate argument, upheld the fatal tyranny of ship money against the patriot resistance of Hampden,--which, in defiance of justice and humanity, sent Sidney and Russell to the block,--which persistently enforced the laws of Conformity that our Puritan fathers persistently refused to obey, and afterwards, with Jeffreys on the bench, crimsoned the pages of English history with massacre and murder, even with the blood of innocent women. Ay, Sir, it was a judicial tribunal in our own country, surrounded by all forms of law, which hung witches at Salem,--which affirmed the constitutionality of the Stamp Act, while it admonished "jurors and people" to obey,--and which now, in our day, lends its sanction to the unutterable atrocity of the Fugitive Slave Act. [_Long continued applause, and three cheers for Sumner._]

Of course judgments of courts are binding upon inferior tribunals, and their own executive officers, whose virtue does not prompt them to resign rather than aid in executing an unjust mandate. Over all citizens, whether in public or private station, they will naturally exert, _as precedents_, an impartial influence. This I admit. But no man, who is not lost to self-respect, and ready to abandon that manhood which is shown in the Heaven-directed countenance, will voluntarily aid in enforcing a judgment which in conscience he believes wrong. He will not hesitate "to obey God rather than men," and calmly abide the peril he provokes. Not lightly, not rashly, will he take the grave responsibility of open dissent; but if the occasion requires, he will not fail. Pains and penalties may be endured, but wrong must not be done. [_Cheers._] "Where I cannot obey I am willing to suffer," was the exclamation of the author of "Pilgrim's Progress," when imprisoned for disobedience to an earthly statute. Elsewhere I have said what I now repeat and proclaim on the house-top. Better suffer injustice than do it. Better be even the poor slave returned to bondage than the unhappy Commissioner. [_Applause and sensation._]

I repeat, judges are but men, and I know no difference between the claim of power now made for them and that other insulting pretension put forth sometimes in the name of a king and sometimes of a people. Listen to what King James of England once wrote: "It is atheism and blasphemy to dispute what God can do: good Christians content themselves with his will revealed in his word. So it is presumption and high contempt in a subject to dispute what a king can do, or say that a king cannot do this or that: but rest in that which is the king's revealed will in his law."[137] Thus wrote one who was called "the wisest fool of Christendom." And so we are to rest in that popular will revealed in the Fugitive Slave Act, and ratified by the Supreme Court. The rabble of revolutionary France, in a spirit kindred to that of King James, cried out, as the executioner's cart tracked its way in blood, "We can do what we please,"--adding, "There is no God." Of course, if there were no God, they could not do as they pleased; nor could the king, whose pretension for himself was no better than that of the rabble. But there is a God, to be obeyed in all things, although kings, people, and even courts, assert the contrary.

[137] Speech in the Star-Chamber, June 20, 1616: Works of the Most High and Mighty Prince, James, by the Grace of God King of Great Britain, &c., (London, 1616, folio,) p. 557. See also Finch's Law, p. 81.

The whole dogma of _passive obedience_ must be rejected, whatever guise it assumes, under whatever _alias_ it skulks,--whether in tyrannical usurpations of king, parliament, or judicial tribunal,--whether in exploded theories of Sir Robert Filmer, or rampant assumptions of the Fugitive Slave Act. The rights of the civil power are limited; there are things beyond its province; there are matters out of its control; there are cases in which the faithful citizen may say,--ay, _must_ say,--"I will not obey." One of the highest flights of Mirabeau was, when, addressing the National Assembly of France, he protested against a law then pending, and exclaimed, "If you make such a law, I swear never to obey it!"[138] No man now responds to the words of Shakespeare, "If a king bid a man be a villain, he is bound by the indenture of his oath to be one." Nor, in this age of civilization and liberty, will any prudent reasoner, who duly considers the rights of conscience, claim for any earthly magistrate or tribunal, howsoever styled, a power which the loftiest monarch of a Christian throne, wearing on his brow "the round and top of sovereignty," dare not assert.

[138] Projet de Loi sur les Émigrations, 28 Février, 1791: OEuvres, (Paris, 1834,) Tom. III. p. 85.

On this twofold conclusion I rest, and do not doubt the final result. The citizen who has sworn to support the Constitution is constrained to support it simply as he understands it. The citizen whose private life has kept him from assuming the obligations of official oath may bravely set at nought the unrighteous ruling of a magistrate, and, so doing, he will serve justice, though he expose himself to stern penalties.

Fellow-citizens of Massachusetts, our own local history is not without encouragement. In early colonial days, the law against witchcraft, now so abhorrent to reason and conscience, was regarded as constitutional and binding,--precisely as the Fugitive Slave Act, not less abhorrent to reason and conscience, is regarded as constitutional and binding. A special Court of Oyer and Terminer, with able judges, whose names are entwined with our history, enforced this law at Salem by the execution of nineteen persons as witches,--precisely as petty magistrates, acting under sanction of the Supreme Court of the United States, and also of the Supreme Court of Massachusetts, have enforced the Fugitive Act by the reduction of two human beings to slavery. The clergy of Massachusetts, particularly near Boston, and also Harvard College, were for the law. "Witchcraft," shouted Cotton Mather from the pulpit, "is the most nefandous high treason," "a capital crime,"--even as opposition to the Fugitive Act has been denounced as "treason." [_Laughter._]

But the law against witchcraft was not triumphant long. The General Court of the Province first became penitent, and asked pardon of God for "all the errors of his servants and people in the late tragedy." Jurymen united in condemning and lamenting the delusion to which they had yielded under the decision of the judges, and acknowledged that they had brought the reproach of wrongful bloodshed on their native land. Sewall, one of the judges, and author of the early tract against Slavery, "The Selling of Joseph," whose name lives freshly in his liberty-loving descendant [Hon. S. E. SEWALL] [_applause_], stood up in his place at church, before the congregation, and implored the prayers of the people, that the errors he had committed might not be visited by the judgments of an avenging God on his country, his family, or himself. And now, in a manuscript diary of this departed judge, may be read, on the margin against the contemporary record, in his own handwriting, words of saddest interjection and sorrow: _Væ! væ! væ!_ Woe! woe! woe![139] [_Sensation._]

[139] Holmes, Annals, Vol. I. p. 440, note. In similar spirit, John Winthrop, the early Governor of Massachusetts, on his death-bed refused to sign an order to banish a heterodox person, saying, "I have done too much of that work already."--Hutchinson, History of Massachusetts, Vol. I. p. 142.