Part 29

To this array of reason and authority there are but two attempts at reply, so far as the Committee is informed.

(1.) The first asserts that the rendition of the slave under the Act of Congress is a “preliminary” proceeding, in the nature of _extradition_, which does not establish any right between the parties, but simply hands the slave over to the local jurisdiction from which he escaped, and therefore trial by jury is unnecessary. But this pretension is founded on a plain misapprehension. It forgets, in the first place, that by ancient authority a “claim” for a fugitive slave is unquestionably a “suit at Common Law,” to be determined by a jury _before the judgment of rendition_. And it forgets, in the second place, that the proceedings are in no respect “preliminary”; that they do not contemplate any other trial between the parties, but that they fix absolutely the relations of the parties, making one of them master and the other slave; that the certificate of rendition is absolute and unimpeachable by any human tribunal, so that the claimant, from the moment of its issue, may assert unqualified ownership over the fugitive; that, under this certificate, he may proceed at once to demand service and labor, and enforce his demand by the lash; and that, instead of returning the victim to that local jurisdiction from which he is alleged to have escaped, the claimant may hurry him, chained and manacled, to some distant plantation, where the only judge will be an overseer, and the only jury the creatures who aid in enforcing a terrible power. And the argument forgets, also, that this cruel judgment may be inflicted upon a freeman, who, perhaps, has never left his Northern home, but whose fate will be fixed beyond appeal by the mere certificate of a commissioner. Surely this simple statement is enough.

The very word “preliminary” suggests the inquiry, To what? _Preliminary_ is not an adjective that supports itself. It requires an adjunct, or an abutment on which to rest. It is the beginning or introduction to some further proceeding. It is something incomplete or unfinished. If it be judicial, it contemplates necessarily some further judicial proceeding. The judge who pronounces a preliminary judgment must necessarily have in mind the judgment to follow, and must recognize his relation to it. But if there is no judgment to follow, if there is no contemplation of any further judicial proceeding, if the actual proceeding is complete and finished, if it is not the beginning or introduction to any further proceeding, if there is nothing on which the adjective “preliminary” can rest, it is absurd to call the proceeding by this name. Such proceeding is essentially final, and this is the unquestionable character of that under the Fugitive Slave Act. To call it “preliminary,” and on this ground set up apology for denial of trial by jury, is only another illustration of devices employed by Slavery to baffle the demands of Freedom.

But it is still said that there may be another trial in the State whither the slave is conveyed. On this assumption it has been well remarked, that, if, contrary to general principles of law attaching to the decision of a competent tribunal a conclusive force as to the same right between the same parties, there could be any trial in the Slave State, then it is _another trial_, and in no respect a continuation and completion of the proceedings before the commissioner. The only trial possible would be an original suit by the alleged slave against his _actual_ master, whosoever he might be; for the claimant may have already sold him to another. But there can be no legal connection between the two proceedings. Each is original, and must be decided on its own merits. In the one case, the _actual_ claimant, whosoever he may be, is plaintiff, and the slave is defendant; and in the other case the slave is plaintiff, and the _actual_ master, whosoever he may be, is defendant. And the first proceeding is preliminary to the other only as an illegal imprisonment is preliminary to a suit for damages. The whole pretension is lost in its absurdity.

(2.) The second attempt at reply to the argument for trial by jury may be given in the words of the author of the Fugitive Slave Act himself. In the debate which occurred on its passage, Mr. Mason thus expressed himself:--

“If you pass a law which shall require a trial by jury, not one man in twenty whose slave escapes will incur the risks or expense of going after the fugitive. It proposes a trial according to all the forms of the court. _A trial by jury necessarily carries with it a trial of the whole right_, and a trial of the right to service will be gone into according to all the forms of the court in determining upon any other fact.… This involves the detention of the fugitive in the mean time,--a detention that is purely informal; and whether the jury should or should not render a righteous verdict in the end is a matter I will not inquire into, for it is perfectly immaterial, _as the delay itself would effectually defeat the right of reclamation_.”[367]

Thus, in a question of Human Freedom, the delay incident to trial by jury was unblushingly asserted as a sufficient reason for denial of the right. On a pretension so repulsive, it is enough to say that its feebleness is exceeded only by its audacity.

The Committee, therefore, put aside the attempts at reply, and confidently rest in the conclusion that the denial of trial by jury to a person claimed as slave is an unquestionable violation of the Constitution.

UNCONSTITUTIONAL DELEGATION OF JUDICIAL POWER TO COMMISSIONERS WHO ARE NOT JUDGES.

There is still another objection from unconstitutionality, which may be treated more briefly; but it is not less decisive than the two objections already considered. It is founded on the character of the magistrate to whom is committed the adjudication of the great question of Human Freedom, than which none greater is known to the law.

If it were a question merely of property above twenty dollars,--if it were a question of crime, involving imprisonment under the laws of the United States,--especially if it were a question involving life,--the trial must be before a judge duly appointed by the President by and with the advice and consent of the Senate, holding office during good behavior, receiving for his services a fixed compensation, and bound by solemn oath of office. But this great question of Human Freedom is committed to the unaided judgment of a petty magistrate, called a commissioner, appointed by the Court instead of the President, holding his office during the will of the Court instead of during good behavior, paid by fees according to each individual case, instead of receiving for his services a fixed compensation, and not bound by any oath of office.

A claim for the rendition of a fugitive from service or labor, constituting as it does “a suit at Common Law,” and also “a case arising under the Constitution,” must be determined by a _judicial tribunal_. But a commissioner is not a judicial tribunal, nor is he in any sense a judge; so that he is not entitled, under the Constitution, to exercise this extraordinary jurisdiction.

As “a suit at Common Law,” the claim must be tried by the tribunal which has jurisdiction of such suits. But a commissioner can have no such jurisdiction.

As “a case arising under the Constitution,” it falls under the judicial power of the United States. But a commissioner is no part of this power.

Two provisions of the Constitution place this conclusion beyond question. _First_, by article three, section one, it is declared that “_the judicial power of the United States_ shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.” _Secondly_, by article three, section two, it is declared that “_the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States_, and treaties made, or which shall be made, under their authority.” Here it appears, first, who are the judges constituting the judicial power of the United States, and, secondly, what is the extent of this power. But a commissioner clearly is not a judge, or any part of the judicial power. Therefore, by inevitable conclusion, he cannot have jurisdiction of any “case arising under the Constitution.” But the Supreme Court has expressly decided that the proceeding by a claimant for the delivery of an alleged slave “constitutes in the strictest sense a controversy between the parties, and _a case arising under the Constitution_ of the United States, within the express delegation of judicial power given by that instrument.”[368]

And yet a commissioner, dressed in the smallest and briefest authority, is put forward to determine this great case under the Constitution, and his judgment is declared final, and even without appeal. The Fugitive Slave Act proclaims expressly that he “shall have _concurrent jurisdiction_ with the judges of the Circuit and District Courts of the United States”; that he shall “hear and determine the case of the claimant in a summary manner”; and that his certificate “shall be conclusive of the right of the person or persons in whose favor granted to remove such fugitive to the State or Territory from which he escaped, _and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever_.”[369] Such are the plenary powers conferred upon the commissioner, together with an eminent jurisdiction concurrent with judges of the Circuit and District Courts. This Act, as originally introduced by Mr. Butler, before the substitute of Mr. Mason, intrusted this _concurrent jurisdiction_ to the whole army of postmasters; but a trumpery commissioner, appointed by a court, is as little entitled to exercise it as a postmaster. It is not doubted, that, under existing statutes, a commissioner may be appointed to take depositions and acknowledgments of bail, and also to arrest, examine, and detain offenders for trial. Thus much a court may authorize; _but a court cannot delegate to a commissioner the power of trying a cause_, whether “a suit at Common Law,” or “a case arising under the Constitution”; _nor can Congress authorize a court to delegate this power_. The whole pretension is a discredit to the jurisprudence of the country.

Such are three principal objections to the constitutionality of this Act. One alone is enough. The three together are more than enough.

OTHER OBJECTIONS TO THE FUGITIVE SLAVE ACT.

But there are other objections, to which the Committee merely allude.

The offensive Act, defying the whole Law of Evidence, authorizes a judgment which despoils a man of his liberty on _ex parte_ testimony, by affidavit, without the sanction of cross-examination.

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

Contrary to the purposes declared by the framers of the Constitution, it sends the fugitive back “at the public expense.”[370]

Adding meanness to 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.

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 the Fugitive Act, exalting Slavery above even this practical principle of universal justice, ordains proceedings against Freedom without reference to lapse of time.

Careless of the feelings and conscientious convictions of good men who cannot help the work of thrusting a fellow-being back into bondage, this Act declares that “all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law”;[371] and this injunction is addressed to all alike, not excepting those who religiously believe that the Divine mandate is as binding now as when it was first given to the Hebrews of old: “THOU SHALT NOT DELIVER _unto his master the servant which is escaped from his master unto thee_: he shall dwell with thee, even among you, in that place which he shall choose, in one of thy gates where it liketh him best: thou shalt not oppress him.”[372] The thunder of Sinai is silent, and the ancient judgments have ceased; but an Act of Congress, which, besides its direct violation of this early law, offends every sentiment of Christianity, must expect the judgments of men, even if it escapes those of Heaven. Perhaps the sorrows and funerals of this war are so many warnings to do justice.

But this Act is to be seen not merely in its open defiance of the Constitution, and of all legislative decencies; it must be considered, also, in two other aspects: first, in its consequences; and, secondly, in the character of its authors. The time has come, at last, when each of these may be exposed.

CONSEQUENCES OF THE FUGITIVE SLAVE ACT.

And, first, as to its consequences. In the history of the African race these can never be forgotten. Since the first authorization of the slave-trade, nothing so terrible had fallen upon this unhappy people, whether we contemplate its cruelty to individuals or the wide-spread proscription which it launched against all whose skins were not white.

It is sad to know of suffering anywhere, even by a single lowly person. But our feelings are enhanced, when individual sorrows are multiplied, and the blow descends upon a whole race. History, too, takes up the grief. The Jews expelled from Spain by merciless decree, the Huguenots driven from France by the revocation of the Edict of Nantes, our own Puritan fathers compelled to exile for religious Freedom,--all these receive a gushing sympathy, and we detest the tyrants. These were persecutions for religion, in days of religious bigotry and darkness. But an American Congress, in this age of Christian light, not in the fanaticism of religion, but in the fanaticism of Slavery, did a deed that finds companionship only with these enormities of the past. The Fugitive Slave Act carried distress and terror to every person with African blood in the Free States. All were fluttered, as the arbitrary edict commenced its swoop over the land. The very rumor that a slave-hunter was in town so shook the nerves of a sensitive freeman on whom was the ban of color, that he died. To large numbers the Act was a decree of instant expulsion from the Republic, under penalty of Slavery to them and their posterity forever. Driven by despair, as many as six thousand Christian men and women, meritorious persons,--a larger band than that of the escaping Puritans,--precipitately fled from homes they had established, opportunities of usefulness they had found, and the regard of fellow-citizens, until, at last, in an unwelcome Northern climate, beneath the British flag, with glad voices of Freedom on their lips, though with the yearnings of exile in their hearts, they were happy in swelling the chant, “God save the Queen!”

Such an injustice cannot be restricted in influence. Everywhere it is an extension of Slavery, with all the wrong, violence, and brutality which are the natural outgrowth of Slavery. The Free States became little better than a huge outlying plantation quivering under the lash of the overseer; or rather, they were a diversified hunting-ground for the flying bondmen, resounding always with the “halloo” of the huntsman. There seemed no rest. The chase was hardly over at Boston before it was started at Philadelphia, Syracuse, or Buffalo, and then again raged furiously across the prairies of the West. Not an instance occurred which did not shock the conscience of the country and sting it with anger. Records of the time attest the accuracy of this statement. Perhaps there is no example in history where human passion showed itself in grander forms, or eloquence lent all her gifts more completely to the demands of Liberty, than the speech of an eminent character, now dead and buried in a foreign land,[373] denouncing the capture of Thomas Sims at Boston, and invoking the judgment of God and man upon the agents in this wickedness. In the history of Humanity this great effort cannot be forgotten. But every case pleaded with an eloquence of its own, until, at last, occurred one of those tragedies darkening the heavens and crying out with a voice that will be heard. It was the voice of a mother standing over her murdered child. Margaret Garner escaped from Slavery with three children, but was overtaken at Cincinnati. Unwilling to behold her offspring returned to the shambles of the South, this unhappy person, described in the testimony as “a womanly, amiable, affectionate mother,” determined to save them in the only way within her power. With a butcher-knife, coolly and deliberately, she took the life of one of the children, “almost white, and a little girl of rare beauty,” and attempted, without success, to take the life of the other two. To the preacher who interrogated her she exclaimed: “The child was my own, given me of God to do the best a mother could in its behalf. I have done the best I could; I would have done more and better for the rest; I knew it was better for them to go home to God than back to Slavery.” But she was restrained in her purpose. The Fugitive Slave Act triumphed, and, after the determination of sundry questions of jurisdiction, this devoted historic mother, with the two children remaining to her, and the dead body of the little one just emancipated, under a national escort of armed men, was hurried to the doom of Slavery. Her case did not end with this revolting sacrifice. So long as the human heart is moved by human suffering, the story of this mother will be read with alternate anger and grief, while it is studied as a perpetual witness to the slaveholding tyranny which then ruled the Republic with execrable exactions, destined at last to break out in war,--as the sacrifice of Virginia by her father is a perpetual witness to the decemviral tyranny which ruled Rome.

But Liberty is always priceless. There are other instances, less known, where kindred wrong has been done. Every case is a tragedy, under the forms of law. Worse than poisoned bowl or dagger was the certificate of a commissioner, allowed, without interruption, to continue his dreadful trade. Even since the Rebellion has raged in blood, the pretension of returning slaves to their masters is not abandoned. The piety of Abraham, who offered up Isaac as a sacrifice to Jehovah, is imitated, and the country continues to offer up fugitive bondmen as a sacrifice to Slavery. It is reported on good authority, that among slaves thus sacrificed was one who by communications to the Government had been the means of saving upwards of one hundred thousand dollars. Here in Washington, since the beneficent Act of Emancipation, even in sight of the flag floating from the National Capitol, the Fugitive Slave Act has been made a scourge and a terror to innocent men and women.

If all these pains and sorrows had redounded in any respect to the honor of the country, or had contributed in any way to the strength of the Union, then we might confess, perhaps, that something at least had been gained. But, alas! there has been nothing but unmixed evil. The country has suffered in good name, while foreign nations have pointed with scorn to a republic which could legalize such indecencies. Not a case occurred which was not greedily chronicled in Europe, and circulated there by the enemies of liberal institutions. Even since the Rebellion began in the name of Slavery, the existence of this odious enactment unrepealed on our statute-book has been quoted abroad to show that the supporters of the Union are as little deserving of sympathy as Rebel Slavemongers. By the enforcement of this odious Act the Union has suffered from the beginning; for not a slave is thrust back into bondage without weakening those patriotic sympathies, North and South, which are its best support. The natural irritation of the North, as it beheld all safeguards of Freedom overthrown and Slavery triumphant in its very streets, was answered by savage exultation in the South, which seemed to dance about its victims. Each instance was the occasion of new exasperations on both sides, which were skilfully employed by wicked conspirators “to fire the Southern heart.”

AUTHORS OF THE FUGITIVE SLAVE ACT.

Such are some of the consequences of this ill-fated measure. But the duty of the Committee cannot be performed without glancing at its authors also. By an easy transition we pass from one to the other, for the two are in natural harmony. Each may be read in the light of the other.

And who were the authors of this Fugitive Slave Act? The answer may be general or special.

If general, it may be said that its authors were the representatives of Slavery, constituting that same Oligarchy, or Slave Power, which has madly plunged this country into civil war. Some of them, even at the time of its enactment, were already engaged in treasonable conspiracy against the Union. They thought little of any pretended interests in property; but they were occupied with two controlling ideas: first, how to unite their own people at home; and, secondly, how to insult and subjugate the Free States. The Fugitive Slave Act furnished a convenient agency for this double purpose, and was naturally adopted by men who had lost the power of blushing as well as the power of feeling.

Unquestionable facts show how little real occasion there was for this barbarous statute. It is now established by the report of the census in 1860, that the loss of slaves by escape was trivial. According to this document, “the whole annual loss to the Southern States from this cause bears less proportion to the amount of capital involved than the daily variations which, in ordinary times, occur in the fluctuations of State or Government securities in the city of New York alone.”[374] Such a statement is most suggestive. Official tables furnish confirmatory details. From these it appears that during the year ending June 1, 1860, out of 3,949,557 slaves, only 803 were able to escape, being one to about five thousand, or at the rate of one fiftieth of one per cent. Then again, out of more than one million of slaves in the Border States in 1860, fewer than five hundred escaped. Such are authentic facts. Nor is this all. The slave who succeeded in escaping, even when reënslaved, was never afterwards regarded as good property. All the work he could do would not compensate for his bad example. Jefferson Davis, in the frankness of an address to his constituents at home in Mississippi, on the 11th July, 1851, said openly that he did not want any fugitive slaves sent into his State; that “such stock would be a curse to the land,--for, with the knowledge they had gained, they would ruin the rest of the slaves, and very probably give rise to the most dreadful consequences”; and he concluded by announcing, that “he would not have in his quarters a negro brought from the North on any account whatever.”[375] And yet, in face of such authentic facts, showing how few escaped, and in face of an instinctive repugnance to any commingling with other slaves by those who had once tasted Liberty, this atrocious statute was enacted, and its enforcement was maintained at the point of the bayonet, while Jefferson Davis was Secretary of War.