Part 28

At last, in 1850, after the subject of Slavery had been agitated in Congress without interruption for nearly twenty years, a series of propositions was adopted, and solemnly declared to be _compromises_, by which all the questions concerning Slavery were permanently settled, so as never again to vex the country,--as if any question could be permanently settled except on principles of justice. But the “gruel” was made, and among its ingredients “for a charm of powerful trouble” was a new Fugitive Slave Act, first reported from the Committee on the Judiciary by Mr. Butler, of South Carolina, but afterwards amended by a substitute from Mr. Mason, of Virginia, so as to become substantially his measure. It is needless to mention its details. Suffice it to say, that in these, as in general conception, it was harsh, cruel, and vindictive. Few statutes in history have been so utterly inhuman, not excepting even those British statutes for the oppression of the Irish Catholics, which are pictured by Edmund Burke in words strictly applicable to the monstrosity of our country:--

“That truly barbarous system, where almost all the parts were outrages on the rights of humanity and the laws of Nature,”--“a machine of wise and elaborate contrivance, and as well fitted for the oppression, impoverishment, and degradation of a people, and the debasement in them of human nature itself, as ever proceeded from the perverted ingenuity of man.”[347]

Such, unquestionably, was the Fugitive Slave Act of 1850, which is still allowed to remain on the statute-book, a blot upon our country and age.

Where a measure is so plainly repugnant to reason and authority, and on its face has so little foundation in the Constitution, any elaborate argument seems superfluous, especially at this moment, when Slavery everywhere is yielding to Freedom. The general conscience condemns the inhuman statute, and this is enough.

But it is important to show how the country has been deceived. Therefore, briefly, the Committee call attention to the constitutional objections.

UNCONSTITUTIONAL USURPATION OF POWER BY CONGRESS.

Forgetting, then, for the moment, the Preamble of the Constitution, which speaks always for Justice and Liberty,--forgetting, also, the venerable maxim of the law, that “we must incline always in favor of Freedom,” and likewise that other maxim, that “he is impious and cruel who does not favor Freedom,”--refusing, according to the requirement of law, “to catch at anything in favor of Liberty,” and, in spite of all received rules of interpretation, assuming that the words of the fugitive clause adequately define fugitive slaves,--the question then arises, if this clause, thus defiantly interpreted, confers any power upon Congress.

Clearly not.

Search the Constitution, and you will find no grant, general or special, conferring upon Congress power to legislate with regard to fugitives from service or labor. In the general catalogue of powers this is not mentioned; nor does it appear in any special grant. There is nothing in the clause itself, there is nothing in any other clause, applicable to this pretended power. The whole subject is left to stand on a clause which, whatever its meaning otherwise, plainly on its face is only a _compact_, and not a grant of power. And in this respect it differs on its face from other provisions of the Constitution. For instance, 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 grant, these two important subjects would have fallen within the control of the States, the nation having no power _to establish a uniform rule_ thereupon. Now, instead of the existing compact on fugitives from service or labor, it would have been easy, had any such desire prevailed, to add this case to the provision on naturalization and bankruptcy, and empowered Congress _to establish a uniform rule for the surrender of fugitives from service or labor throughout the United States_. Then would Congress have had unquestionable jurisdiction. But nobody in the Convention, not one of the hardiest partisans of Slavery, presumed to make this proposition. Had it been made, it is easy to see that it must have been most unceremoniously dismissed.

The genius of the Common Law, to which our ancestors were devoted, cried out against any such concession. If we refer to its great master, Lord Coke, from whose teachings in that day there was no appeal, we find its living voice. In the Third Institute he thus expresses himself: “It is holden, and so it hath been resolved, _that divided kingdoms, under several kings in league one with another, are sanctuaries for servants_ or subjects flying for safety from one kingdom to another, and, upon demand made by them, are not, _by the laws and liberties of kingdoms_, to be delivered.”[348] Unquestionably, if such “sanctuaries” may be overturned, it can be only in a manner consistent with “laws and liberties” of the States where the fugitive is found, and not through the exercise of a domineering prerogative by Congress.

Whatever the real meaning of the clause in other respects, plainly it is a _compact_, with a _prohibition_ on the States, _conferring no power on the nation_. In natural signification it is a compact. According to examples of other countries and principles of jurisprudence, it is a compact. All arrangements for surrender of fugitives are customarily compacts. Except under express obligations of treaty, no nation is bound to surrender fugitives. Especially has this been the case with fugitives for Freedom. Bodin asserted the freedom of all foreign slaves just so soon as they crossed into France.[349] In mediæval Europe cities set up the same immunity, even against claimants under the same national government. In 1531, while the Netherlands and Spain were united under Charles the Fifth, the supreme council of Mechlin rejected an application from Spain for the surrender of a fugitive slave. By express compact alone could this be secured. But the provision of the Constitution was borrowed from the Ordinance of the Northwestern Territory, which is expressly declared to be a “compact,”[350] and this Ordinance, finally drawn by Nathan Dane, of Massachusetts, was again borrowed, in some of its distinctive features, from the early institutions of Massachusetts, among which, as far back as 1643, was a compact of like nature with other New England States. Thus this provision is a compact in language, a compact in nature, and a compact in its whole history; as we have already seen, it is a compact according to the intentions of our fathers and the genius of our institutions.

There are two instances in history of compacts which illustrate the present words. The first is found in a treaty of peace between Leo the Sixth, Greek Emperor of Constantinople, and Oleg, Regent of Russia, in the year of the Christian era 906, as follows:--

“If a Russian slave take flight, or even if he is carried away under pretence of having been bought, his master can pursue him and take him wherever he shall find him, and any man who shall oppose him in his search _shall be deemed guilty_.”[351]

This compact, made in the unequivocal language of a barbarous age, has long since ceased to exist; and now, in our own day, Russia disdains to own a slave.

The other instance is the compact between the New England colonies in 1643, being one of the “Articles of Confederation between the Plantations under the Government of the Massachusetts, the Plantations under the Government of New Plymouth, the Plantations under the Government of Connecticut and the Government of New Haven, with the Plantations in combination therewith.” Here it is:--

“_It is also agreed_, That, if any servant run away from his master into any other of these confederated jurisdictions, that in such case, upon the certificate of one magistrate in the jurisdiction out of which the said servant fled, or upon other due proof, the said servant _shall be delivered_ either to his master or any other that pursues and brings such certificate or proof.”[352]

Here, by words of _agreement_, less frank and unequivocal than those of the earlier time, fugitives are restored. But this compact, like its Russian prototype, long since ceased to exist.

Unquestionably the fugitive clause of the Constitution, whether applicable to fugitive slaves or not, was never intended to confer power upon Congress, but was simply a _compact_, to receive such interpretation as the States where it was enforced might choose to adopt.

AUTHORITIES AGAINST THE POWER OF CONGRESS.

The Committee do not leave this conclusion to rest merely on unanswerable reason. Authorities add to the testimony.

Here is the judgment of Chancellor Walworth, of New York, pronounced in 1835, before this subject had become the occasion of political strife. The testimony of the learned Chancellor is the more important, when it is considered that he has always acted politically with the Democracy, which has been the support of Slavery.

“I have looked in vain among the powers delegated to Congress by the Constitution for any general authority to that body to legislate on this subject. It certainly is not contained in any express grant of power, and it does not appear to be embraced in the general grant of incidental powers contained in the last clause of the Constitution relative to the powers of Congress. The law of the United States respecting fugitives from justice and fugitive slaves is not a law to carry into effect any of the powers expressly granted to Congress, ‘or any other power vested by the Constitution in the Government of the United States, or any department or officer thereof.’”[353]

Here, also, is the judgment of Chief Justice Hornblower, of New Jersey, pronounced in 1836. Having shown that the clause in question confers no power on Congress, he proceeds as follows.

“In short, if the power of legislation upon this subject is not given to Congress in the second section of the fourth article of the Constitution, it cannot, I think, be found in that instrument. The last clause of the eighth section of the first article gives to Congress a right to make all laws which shall be necessary and proper for carrying into execution _all the powers_ vested by the Constitution in the Government of the United States, or in any department or officer thereof. But the provisions of the second section of the fourth article of the Constitution cover no grant to, confide no trust, and vest _no powers_ in, the Government of the United States. The language of the whole of that section is to establish certain principles and rules of action by which the contracting parties are to be governed in certain specified cases. The stipulations respecting the rights of citizenship, and the delivery of persons fleeing from justice or escaping from bondage, _are not grants of power_ to the General Government, to be executed by it in derogation of State authority, but they are in the nature of treaty stipulations, resting for their fulfilment upon the enlightened patriotism and good faith of the several States. The argument in favor of Congressional legislation, founded on the suggestion that some of the States might refuse a compliance with these constitutional provisions, or neglect to pass any laws to carry them into effect, _is entitled to no weight_.”[354]

Afterwards, in a published letter of 1852, the Chief Justice says:--

“Be assured, my dear Sir, my judgment, whatever it may be worth, has been for years, and now is, in perfect accordance with yours in relation to the unconstitutionality of the Fugitive Slave Laws of 1793 and 1850.”[355]

Other judicial opinions might be adduced; but, as they have been pronounced since controversy on this question, they would be less regarded.

There are opinions, pronounced in the Senate, which, from the characters of their authors, are entitled to peculiar consideration.

It will be remembered that Mr. Webster gave his support to the Fugitive Slave Act of 1850; but, whatever may have been his vote, so far as his personal authority could go, _he condemned the Act as unconstitutional_. Here is his opinion, in the famous speech of the 7th March, 1850.

“I have always thought that the Constitution addressed itself to the Legislatures of the States, or to the States themselves. It says that those persons escaping to other States ‘shall be delivered up,’ and I confess I have always been of the opinion that it was an injunction upon the States themselves. When it is said that a person escaping into another State, and coming, therefore, within the jurisdiction of that State, shall be delivered up, _it seems to me the import of the clause is, that the State itself, in obedience to the Constitution, shall cause him to be delivered up_. _That is my judgment. I have always entertained that opinion, and I entertain it now._”[356]

“I have always entertained that opinion, and I entertain it now.” Such are the emphatic words by which Mr. Webster declares his judgment of the unconstitutionality of this Act.

He was not alone. Mr. Mason, the actual author of the Act of Congress, exposed its unconstitutionality in the very speech by which he introduced it.

“In my reading of these clauses of the Constitution for extradition of fugitives of both classes, _I advance the confident opinion_ that it devolves upon the States the duty of providing by law both for their capture and delivery.… I say, then, Sir, that the true intent of the Constitution was to devolve it upon the States, as a federal duty, to enforce, by their own laws, within their respective limits, both these clauses of extradition.”[357]

And Mr. Butler, of South Carolina, at a later day, said:--

“Under the Constitution, each State of itself ought to provide for the rendition of all fugitives from labor to their masters. _This was certainly the design of the Constitution._”[358]

Such are some of the authorities, judicial and political, by which Congressional power over this subject is denied. And yet, in the face of all authority, and in defiance of reason, Congress assumed this power. It was done at the demand of Slavery, and for the protection of Slavery. Of course, such an assumption of undelegated power was a usurpation at the time, and is a usurpation still,--doubly hateful, when it is considered that it is a usurpation in the name of Slavery. It is hard to think that Congress was driven to unconstitutional assumption in such a cause, and that, contrary to sovereign rules of interpretation, it leaned to Slavery rather than to Freedom. But the time has come at last when it may recover the attitude belonging to it under the Constitution.

In advising the repeal of the Fugitive Slave Act, it is enough to show that it is founded on usurpation by Congress of power not granted by the Constitution. But, even admitting the power, a slight examination will show that it has been executed in defiance of the Constitution.

The constitutional objections to the Fugitive Slave Act are abundant. It is not too much to say, that in every section and at every point it is repugnant to admitted principles of Constitutional Law.

UNCONSTITUTIONAL DENIAL OF TRIAL BY JURY.

Foremost among these objections it is proper to put the denial of trial by jury to the fugitive whose liberty is in question. It is well known that Judge Story, who pronounced the opinion of the Supreme Court affirming the constitutionality of the early Fugitive Slave Act, declared that the necessity of a trial by jury had not been argued before the Court, and that in his opinion this was still “an open question.”[359] It has never been argued since; but it is difficult to say that it is still “an open question.” The battles of Freedom are never lost, and the longer this right is denied the more its justice has become apparent, until at last it shines resplendent beyond all contradiction. Even if there were doubt of the obligation of Congress, there can be no doubt of the power. Nobody denies that Congress, if it legislates on this matter, _may_ allow trial by jury. But here again, if it _may_, so overwhelming is the claim of justice, it MUST.

The text of the Constitution leaves the case beyond question. And here, on the threshold, two necessary incidents of the delivery are observed: first, it must be made in the State where the fugitive is found; and, secondly, it restores to the claimant complete control over the person, so that the victim may be conveyed to any part of the country where it is possible to hold a slave, or he may be sold on the way. The proceedings, therefore, cannot be regarded, in any just sense, as preliminary or auxiliary to some future formal trial, as in the case of a fugitive from justice, but as complete in themselves, final and conclusive.

It is because of the contempt with which, under the teachings of Slavery, to the shame of our country, men have thus far regarded the rights of colored persons, that courts have been willing for a moment to recognize the constitutional right to hurl a human being into bondage without trial by jury. Had the victims been white, it is easy to see that the rule would have been different. But it is obvious, that, under the Constitution, the rule must be the same for all, whether black or white.

On the one side is a question of property; on the other side is the vital question of Human Freedom in its most transcendent form,--not merely Freedom for a day or a year, but for life, and the freedom of generations that shall succeed so long as Slavery endures. Whether viewed as a question of property or a question of Human Freedom, the requirement of the Constitution is equally explicit, and it becomes more explicit as we examine its history. It is well known, that, at the close of the National Convention, Elbridge Gerry refused to sign the Constitution, because, among other things, it sanctioned the establishment of “a tribunal _without juries_,--a Star-Chamber as to civil cases.”[360] Many united in this opposition, and on the recommendation of the First Congress an additional safeguard was added in the following words: “In _suits at Common Law_, where the value in controversy shall exceed twenty dollars, _the right of trial by jury shall be preserved_.” Words cannot be more positive.

Three conditions, according to this Amendment, are necessary. _First_, there must be “a suit.” But the Supreme Court, in the case of _Cohens_ v. _Virginia_, have defined a suit to be “the prosecution, or pursuit, of some _claim_, demand, or request,”[361]--thus affirming that the “claim” for a fugitive is “a suit.” _Secondly_, there must be a suit “at Common Law.” But here again the Supreme Court, in the case of _Parsons_ v. _Bedford_, while considering this very clause, has declared that “in a just sense the Amendment may well be construed to embrace all suits which are not of Equity and Admiralty jurisdiction, _whatever may be the peculiar form which they may assume to settle legal rights_”;[362] and clearly, since the claim for a fugitive is not a suit in Equity or Admiralty, but a suit to settle what are culled “legal rights,” it must, of course, be “a suit at Common Law.” _Thirdly_, the value in controversy must “exceed twenty dollars.” But here again the Supreme Court, in the case of _Lee_ v. _Lee_, on a question as to jurisdiction, founded on “the value in controversy,” has declared that the freedom of the petitioners, which was the matter in dispute, was “not susceptible of a pecuniary valuation,”[363]--showing, that, since Liberty is above price, the claim to a fugitive always necessarily presumes that “the value in controversy exceeds twenty dollars.”

Thus, by a series of separate decisions of the Supreme Court on the three points involved in the interpretation of this clause, it is clear beyond question that the claim to a fugitive is, first, “a suit,”--secondly, “at Common Law,”--thirdly, “where the value in controversy exceeds twenty dollars”: so that trial by jury is expressly secured.

Even if the Supreme Court had been silent on this question, the argument from the old books of the Common Law would be unanswerable. We are told that there is nothing new under the sun. Certainly, long before our Constitution, the claim for a fugitive slave was known to the Common Law. In early history, and down even to a late period, the slave in England was generally called _villein_, though in the original Latin judicial forms _nativus_, implying slavery by birth. Of course, then as now, he sometimes ventured to _escape_ from his master; but the Common Law supplied the appropriate remedy. The claim was prosecuted 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, in words which must have been known to all the lawyers of the Convention, said of _villeins_: “They could not leave their lord without his permission, but, _if they ran away_, or were purloined from him, _might be claimed and recovered by action, like beasts or other chattels_.”[364] But this word “action” of itself implies “a suit at Common Law,” with trial by jury.

The forms of proceeding in such cases are carefully preserved in those books which constitute the authoritative precedents of the Common Law. There are writs, counts, pleadings, and judgments, all ending in trial by jury. They will be found in Fitzherbert’s “Natura Brevium.”[365] The Year Books and Books of Entries are full of them. Clearly and indisputably, in England, where the Common Law has its origin, a claim for a fugitive slave was “a suit at Common Law,” recognized as such among its old and settled proceedings, as much as a writ of replevin for a horse or a writ of right for land. It follows, then, that the requirement of the Constitution, read in the illumination of the Common Law, naturally and necessarily embraces proceedings for the recovery of fugitive slaves, _so far as any such are instituted or allowed under the Constitution_.

And this irresistible conclusion had the support of a Senator from South Carolina in an earlier period of our history, before passion had obscured reason and conspiracy against the Union had blotted out all loyalty to truth. In reply to a proposition, in 1818, to refer the claim of the master to a judge without a jury, Mr. Smith, speaking solely in the interests of property, thus expressed himself:--

“This would give a judge the sole power of deciding _the right of property the master claims in his slave, instead of trying that right by a jury, as prescribed by the Constitution_. He would be judge of matters of law and matters of fact,--clothed with all the powers of a jury, as well as 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.”[366]

Thus, in those days, a partisan of Slavery, while asserting its divine origin, and vindicating the rendition of fugitive slaves, recognized the claim of the master as “a suit at Common Law,” to be tried by a jury; and this he _insisted_ was prescribed by the Constitution. But if this Senator could claim trial by jury for the protection of his pretended property, with much greater reason might the fugitive claim trial by jury for the protection of his liberty. Surely, now, when Liberty is regaining her lost foothold, this protection will not be denied.

OBJECTIONS TO TRIAL BY JURY.