LETTER II.
TO THE EDITORS OF THE BOSTON ATLAS;
GENTLEMEN; Your semi-weekly of the 1st instant contains a letter of the Hon. Daniel Webster, to certain citizens of Newburyport, in which he has been pleased to refer to me, and particularly to a passage in the letter which I addressed to a portion of my constituents, on the 3d of May last, [the preceding Letter.] His reference to me is of so extraordinary a character, both as to manner and matter, that I wish to reply. To prevent all chance of mistake, I quote the following passages:--
“But, at the same time, nothing is more false than that such jury trial is demanded in cases of this kind by the constitution, either in its letter or in its spirit. The constitution declares that in all criminal prosecutions there shall be a trial by jury. The claiming of a fugitive slave is not a criminal prosecution.
“The constitution also declares that in suits at common law the trial by jury shall be preserved; the reclaiming of a fugitive slave is not a suit at the common law; and there is no other clause or sentence in the constitution having the least bearing on the subject.
“I have seen a publication by Mr. Horace Mann, a member of Congress from Massachusetts, in which I find this sentence. Speaking of the bill before the Senate, he says: ‘This bill derides the trial by jury secured by the constitution. A man may not lose his horse without a right to this trial, but he may lose his freedom. Mr. Webster speaks for the south and for slavery, not for the north and for freedom, when he abandons this right.’ This personal vituperation does not annoy me, but I lament to see a public man of Massachusetts so crude and confused in his legal apprehensions, and so little acquainted with the constitution of his country, as these opinions evince Mr. Mann to be. His citation of a supposed case, as in point, if it have any analogy to the matter, would prove that, if Mr. Mann’s horse stray into his neighbor’s field, _he cannot lead him back without a previous trial by jury to ascertain the right_. Truly, if what Mr. Mann says of the provisions of the constitution in this publication be a test of his accuracy in the understanding of that instrument, he would do well not to seek to protect his peculiar notions under its sanction, but to appeal at once, as others do, to that higher authority which sits enthroned above the constitution and above the law.”
I must deny this charge of “personal vituperation;” nothing was further from my thoughts; and I regret that Mr. Webster, while disclaiming “annoyance” at what I said, should betray it. I believe every part of my “Letter” to be within the bounds of courteous and respectful discussion. There is nothing in it which might not pass between gentlemen, without interrupting relations of civility or friendship. Though full of regret at his novel position, and of dissent from his unwonted doctrines, yet it abounds in proofs of deference to himself. I must now, however, be permitted to add that the highest eminence becomes unenviable when it breeds intolerance of dissent, or bars out the humblest man from a free expression of opinion.
Mr. Webster “laments to see a public man of Massachusetts so crude and confused in his legal apprehensions, and so little acquainted with the constitution of his country, as these opinions evince Mr. Mann to be.” Yet he points out no error of opinion. He specifies nothing as unsound. Judgment and condemnation alone appear. He seems to have taken it for granted that he had only to say I was guilty, and then proceed to punish. I protest against and impugn this method of proceeding, by any man, however high, against any man, however humble.
When Mr. Webster penned his “lamentations” over my crudeness, confusion, and ignorance, he doubtless meant to deal me a mortal blow. The blow was certainly heavy: but the question still remains, _whether it hit_. Polyphemus struck hard blows, but his blindness left the objects of his passions unharmed.
But wherein do those erroneous “opinions” consist, which Mr. Webster does not deign to specify, but assumes to condemn? Fortunately, in writing the sentence which he quotes for animadversion, I followed the precise meaning of Judge Story, as laid down in his Commentaries; and in regard to the only point which is open to a question, _I took the exact words_ of that great jurist. He speaks of “the right of a trial by jury, in civil cases,” as an existing right _before_ the seventh article of amendment to the constitution, which _preserves this right_ “in suits at common law,” had been adopted. (3 Comm., 628.) Instead of transcribing Judge Story’s words, “in civil cases,” which present no distinct image to common minds, I supposed the every-day case of litigation respecting a horse, which is a “civil case;” and this difference of form is the only difference between my language and that of the learned judge. I can wish Mr. Webster no more fitting retribution, after reposing from this ill-tempered attack upon me, than to awake and find that it was Judge Story whom he had been maligning.
Does not the authority of Judge Blackstone also support my position? He says,--
“Recapture or reprisal is another species of remedy, by the mere act of the party injured.... But as the public peace is a superior consideration to any one man’s private property; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons, it is provided that this natural right of recaption shall never be exerted, where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, _or entering on the grounds of a third person, to take him_, should he be feloniously stolen; _but must have recourse to an action at law_.”--_Comm._ 4, 5.
But the opinion expressed by me on this point does not need the authority of any name to support it; and the illustration which I gave is not only intelligible to every sensible man, but is also apposite. I said “a man may not lose his horse, [i. e. his property in a horse,] without a right to this trial.” Mr. Webster’s comment is, that this case, “if it have any analogy to the matter,” means, that if a man’s horse “_stray_ into his neighbor’s field, _he cannot lead him back without a previous trial by jury to ascertain the right_.” Was ever the plain meaning of a sentence more exactly changed about, end for end? Mr. Webster may pitch somersets with his own doctrines, but he has no right to pitch them with mine. I said a man may not _lose_ his horse, or his property in a horse, without a right to the trial by jury. He says I said, a man cannot _find_ or _retake_ a lost horse, without a previous trial! _Dulce est desipere in loco._ Or, it is pleasant to see a grave senator play upon words;--though there should be some wit to redeem it from puerility.
But the childishness of this criticism is not its worst feature. What is the great _truth_ which Mr. Webster and his apologists attempt here to ridicule? It is this: While every man amongst us, in regard to any piece of property worth more than twenty dollars, of which violence or fraud may attempt to despoil him, has a right to a trial by jury; yet a man’s freedom, and that of his posterity forever, may be wrested from him, as our law now stands, without such a trial. Does not this hold a man’s freedom to be of less value than twenty dollars? If two adverse claimants contest title to an alleged slave, whose market value is more than this sum, each is entitled to a jury to try the fact of ownership. But if the alleged slave declares, here, in Massachusetts, that he owns himself, he is debarred from this right. And this truth, or a common illustration of it, Mr. Webster and his apologists think a suitable topic for sneers or pleasantry! A French proverb says, that for a man to kill his mother _is not in good taste_. I trust the moral and religious people of Massachusetts have too much _good taste_ to relish jokes on such a theme.
Again; I said that Mr. Butler’s bill “derides” the trial by jury. By that bill every commissioner and clerk of a United States court, every marshal and collector of the customs, and the seventeen thousand postmasters of the United States, are severally invested with jurisdiction and authority in all parts of the United States, to deliver any man, woman, or child in the United States, into custody, as a slave, on the strength of an _ex parte_ affidavit, made any where in the United States. This affidavit may have been made a thousand miles off, by no one knows whom, and certified to by a person who never saw or heard of the individual named in it. A forged affidavit, or a fictitious affidavit, would often answer the purpose as well; for how difficult, and in many cases, how impossible, to prove its spuriousness. Did oppression ever before conceive such a tribunal, so countless in numbers, so ample in jurisdiction, so terrible in power? Had a bill similar to this been proposed in the British Parliament, from 1763 to 1776, what would our fathers have said of it? Yet this bill, with some kindred amendments, heightening its features of atrocity, Mr. Webster promised “to support, with all its provisions, to the fullest extent.”
What aggravates the wrong, is, that the cruelties of the measure will fall upon the poor, the helpless, the ignorant, the unfriended. The bill would have been far less disgraceful, had its provisions borne upon the men who should pass it; because, in such case, there would have been a touch of equality. Now, if this bill does not “_deride_” all guaranties for the protection of human liberty, it is only because my word of reprobation is too weak. It is only because one needs “to tear a leaf from the curse-book of Pandemonium” in order to describe it by fitting epithets.
Another remarkable feature of Mr. Butler’s bill is, that it provides no penalty whatever for any one who shall abuse, or fraudulently use, the dangerous authority which it gives. It furnishes endless temptations and facilities for committing wrong; it imposes no restraints; it warns by no threats of retribution.
Mr. Webster calls me to account for some unspecified erroneous “opinion,” expressed in relation to this bill. Can any opinion be so false to the constitution, as this bill to humanity? I deprecate error of all sorts; but hold it to be more venial to err in judgment than in heart.
I said that in promising to support Mr. Butler’s bill, “with all its provisions, to the fullest extent,” Mr. Webster “abandoned” the right to a trial by jury. I spoke of him as a senator, as one who, with his co-legislators, was bound, in fulfilment of his constitutional duty, to secure this form of trial to the alleged slave, or to a known freeman seized as a slave. Mr. Seward’s bill, providing for the trial by jury, in such cases, was before him. He took no notice of it. He passed by “on the other side,” while he bestowed his best encomium on Mr. Butler’s bill, by promising to support it. Was not this an “abandonment,” under any of the synonyms given in the dictionary?
Mr. Webster advises me, in a certain contingency, “to appeal to that higher authority which sits enthroned above the constitution and above the law.” I take no exception to this counsel, because of its officiousness, but would thank him for it. My ideas of duty require me to seek anxiously for the true interpretation of the constitution, and then to abide by it, unswayed by hopes or fears. If the constitution requires me to do any thing which my sense of duty forbids, I shall save my conscience by resigning my office. I am free, however, to say, that if, in the discharge of my political duties, I should transfer my allegiance to any other power, I should adopt Mr. Webster’s ironical advice, and go to the power “which sits enthroned above,” rather than descend to that opposite realm, whence the bill he so cordially promised to support must have emerged.
I wish, however, to remark, that though I acknowledge the constitution to be my guide while under oath to support it, yet I do not relish this fling either at the powers above us, or at those who reverence them. I hold it to be not only proper, but proof of sound moral and religious feeling, to look to the perfect law of God for light to enable us more justly to interpret the imperfect laws of man. Especially, when we are proposing to make or amend a law, ought we to take our gauge of purpose and of action from the highest standard.
Noy, that Solomon of the law, thought it not improper to say, “The inferior law must give place to the superior; man’s laws to God’s laws.”--_Maxims_, pp. 6, 7.
“The law of Nature,” says Blackstone, “being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding all over the globe; in all countries, at all times. No human laws have any validity, if contrary to this; and such of them as are valid, derive all their force and all their authority, mediately or immediately, from this original.”--1 _Com._ 41.
Fortescue, the Chancellor of Henry VI., in his _De Laudibus Legum Angliæ_, cap. 42, has the following passage, the consideration of which, in requital for Mr. Webster’s advice to me, I respectfully commend to him:--
“That must necessarily be adjudged a cruel law, which augments slavery, and diminishes liberty. For human nature implores, without ceasing, for liberty. Slavery is introduced by man, and through his vice. But liberty is the gift of God to man. Wherefore, when torn from a man, it ever yearns to return; and it is the same with every thing when deprived of its natural liberty. On this account, that man is to be adjudged cruel, who does not favor liberty. By these considerations the laws of England, in every case, give favor to liberty.”
Having defended my own propositions, I shall now take the liberty to examine some of Mr. Webster’s; and, in so doing, I shall examine the constitutional provisions for trial by jury, and fortify my opinion by historical references. I shall consider,
I. _Where Congress has power to provide for such trial._
II. _Where it is the duty of Congress to do so._
Mr. Webster says “the constitution declares, that in all criminal prosecutions, there shall be a trial by jury;” and that “in suits at common law the trial by jury shall be preserved.” He then adds, “There is no other clause or sentence in the constitution having the least bearing upon the subject.” Mark his words: “There is no other clause or sentence in the constitution, _having the least bearing on the subject_.” This I deny.
Here Mr. Webster virtually declares that, but for the above-named two provisions, the right of the trial by jury would not have been secured to us by the constitution _in any case_. Of course, in the absence of these provisions, Congress would have been under no obligation, nor would it, indeed, have had any power, to provide by law for such trials.
Were I to say that this assertion borders on the incredible, one might well ask, Which side of the line does it lie?
The provision for a trial by jury, _in criminal prosecutions_, is in the third clause of the second section of the third article, and is repeated, and somewhat enlarged, in the fifth and sixth articles of amendment.
But the provision for trial by jury, _in suits at common law_, is in the seventh article of amendment; and neither this provision, nor any semblance of it, is to be found, in express words, in any part of the constitution as it came from the hands of its framers, and was adopted by the states.
According to Mr. Webster, then, Congress was under no obligation, and had no power, to make a law providing for trial by jury, _except in criminal prosecutions_, until _after_ the seventh article of amendment had been ratified; for if they had any such power, or were under any such obligation, it must be by virtue of some clause or sentence in the constitution, _having a “bearing upon the subject.”_
Now, the first session of Congress commenced March 4th, 1789, but this seventh article of amendment was not ratified, and did not become a part of the constitution, according to Hickey, (Hickey’s Const. p. 36,) until December 15, 1791.
Until this time, therefore, according to Mr. Webster, the constitution had secured no right to a trial by jury, except in the case of _criminal prosecutions_; because, until this time, there was no clause or sentence in it “having the least bearing on the subject” of jury trials in any but criminal cases.
Yet, on the 24th of September, 1789, _and more than two years previous to the adoption of the seventh amendment_, (by which alone, according to Mr. Webster, they had any power to act in the premises,) Congress did pass the judiciary act; by the ninth, twelfth, and thirteenth sections of which it is provided, that the trial of issues in fact, in the district courts, in the circuit courts, and in the supreme court, shall, with certain exceptions, be by jury.
The act also empowers the courts to grant new trials “for reasons for which new trials have usually been granted in the courts of law.” In what courts of law? Did it not mean the courts in Westminster Hall, and those in this country formed after that ancestral model? And does not this show beyond question or cavil, that the principle of the jury trial, _in civil cases_, was incorporated into the constitution of the United States, originally; and that it was universally understood to be so by its framers, and by their contemporaries, the members of the first Congress?
From the constitution alone, then, and not from any power above it, or outside of it, did Congress derive its power, on the 24th of September, 1789, and more than two years before the seventh amendment was adopted, to pass the judiciary act, and to fill it full of the fact and the doctrine of jury trials in civil cases. And if Congress, at that time, had legislated on the subject of fugitive slaves, would it not have had the same power to provide the trial by jury, to determine the question, slave or free, as it had to provide for this mode of trial in other cases?
All the state conventions for adopting the constitution, whose debates are preserved, and all the leading men who figured in them, held,--contrary to Mr. Webster,--that the third article in the constitution, providing for courts, carried jury trials in civil cases with it. Mr. Marshall, afterwards Chief Justice Marshall, said in the Virginia convention, “Does the word _court_, [in the constitution,] only mean the judges? Does not the determination of a jury necessarily lead to the judgment of the court? Is there any thing which gives the judges exclusive jurisdiction of matters of fact? What is the object of a jury trial? To inform the court of the facts. When a court has cognizance of facts, does it not follow that they can make inquiry by a jury? It is impossible to be otherwise.”--3 _Elliott’s Debates_, 506.
The third article in the Virginia bill of rights was as follows:--
“In controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.”
This article being read in the convention, Judge Marshall said _the trial by jury was as well secured by the United States constitution, as by the Virginia bill of rights_.--Ib. 524. He said this in reference to civil cases.
In the Massachusetts convention, it was said, without a doubt’s being expressed from any quarter, that “the word _court_ does not, either by popular or technical construction, exclude the use of a jury to try facts. When people in common language talk of a trial at the court of common pleas, or the supreme judicial court, do they not include all the branches and members of such courts, the jurors as well as the judges? They certainly do, whether they mention the jurors expressly or not. Our state legislators have construed the word court in the same way.”--2 _Elliott’s Debates_, 127.
Such was the doctrine maintained by the leading minds of the state conventions; by Christopher Gore, in Massachusetts; by Judge Wilson, and Chief Justice McKean, in Pennsylvania; by Chief Justice Marshall, Judge Pendleton, and Mr. Madison, in Virginia; by Judge Iredell, in North Carolina, and many other distinguished names.
In the Virginia convention, objection was made to the constitution because it did not _expressly_ secure to the accused the privilege of challenging or excepting to jurors in criminal cases. But Mr. Pendleton, the President of the convention, and for so many years afterwards the highest judicial officer in the state, replied: “When the constitution says that the trial shall be by jury, does it not say that every incident will go along with it?”--3 _Elliott’s Debates_, 497.
So when the constitution provided for “courts,” and defined their jurisdiction, it clearly contemplated the trial by jury, in regard to all such rights of the citizen as had been usually, theretofore, tried by a jury. Congress, indeed, might fail to perform its duty; but in such case, no provisions of the constitution, however express and peremptory, would secure the rights of the people.
It is perfectly well known to every student of the constitution, that the only reason why that instrument did not make _express_ provision for the trial by jury, in civil cases, was the difficulty of running the dividing line between the many cases that should be so tried, and the few that should not. All were agreed that ninety-nine per cent. of all civil cases should be tried by jury; but they could not agree upon the classes of cases from which the remaining one per cent. should be taken.
In this connection, it is worth while to notice the heading or preamble of the joint resolutions for submitting certain proposed amendments of the constitution to the states, among which was the seventh. It is as follows:--
“The conventions of a number of the states having at the time of their adopting the constitution expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory or restrictive clauses should be added; and as the extending the ground of public confidence in the government will best insure the beneficent ends of its institution, RESOLVED,” &c.
From this it appears that the first Congress only proposed to submit certain “_further declaratory and restrictive clauses_,” which were “to prevent misconstruction or abuse of its powers.” This heading or title, of course, does not enlarge or limit the meaning of the amendments; but it shows the view which their authors had of their scope and intendment. And what is the seventh amendment but a “declaratory and restrictive clause,” securing the trial by jury, in cases at common law, “where the value in controversy shall exceed twenty dollars,” and abandoning it where the value is less?
The phraseology of the amendment is full of significance: “The right of trial by jury shall be preserved.” Not created, but preserved. Not instituted _de novo_, but continued. Will Mr. Webster tell me, how a right can be _preserved_, which does not already _exist_?
In speaking of the trial by jury, in criminal cases, Judge Story uses the same word. He says it was “preserved.” In neither class of cases, civil or criminal, was it ever abandoned or lost, through the fault of the constitution. If not always enjoyed by the citizen, it has been through the dereliction of Congress in not passing the requisite laws.
The great men who submitted this seventh amendment to the states, treated the trial by jury, in civil cases, as a then subsisting constitutional right. They passed a law to put the practical enjoyment of this right into the hands of the people, well knowing that there is scarcely a right which we hold under the constitution which we can beneficially possess or use, without the intervention of some law, as its channel or medium.
Suppose this seventh amendment had never been adopted, on what ground would the trial by jury, in civil cases, have rested up to the present day? Could it have been taken from us all, in all cases except criminal ones, by any corrupt Congress?
In asserting, therefore, that, besides the references he has made, there is not another “clause or sentence in the constitution, _having the least bearing on the subject_” of jury trials, Mr. Webster is contradicted by the members of the general convention, by the state conventions, by the senators and representatives, who passed the judiciary act, by President Washington who signed it, and by all the judges who administered that act until the seventh amendment was adopted.
II. _Where it is the duty of Congress to provide for trial by jury._
But another of Mr. Webster’s assertions is still more extraordinary. He says “nothing is more false than that such jury trial, [a trial by jury for an alleged slave, or for a freeman claimed as a slave,] is demanded by the constitution, either in its letter or in its spirit.”
I make a preliminary remark upon the grossness of the error embodied in the form of this proposition.
“_Nothing is more false_;” that is, if I, or any one, had affirmed that our constitution forbids trial by jury, in all cases, under penalty of death; or that it creates an hereditary despotism; or that it establishes the Catholic religion, with the accompaniment of an inquisition for each state; or that it does all these things together; it would not be more “_false_” to the “_spirit_” of the constitution, than to say that it demands the trial by jury, when a man who is seized as a slave, but who asserts that he is free, invokes its protection.
But this pertains to the _form_ only of his assertion, and is immaterial to the argument. I proceed to inquire whether its substance be not as indefensible as its form.
In another part of Mr. Webster’s letter, he says, that he sees “no objection to the provisions of the law” of 1793. Of course; for he sees no objection to Mr. Butler’s bill, and its amendments; but prefers them to Mr. Seward’s. And he now says, there is nothing in the letter or in the “spirit” of the constitution, which demands the jury trial for an alleged slave, or for a freeman captured and about to be carried away as a slave.
Feeble and humble as I am, great and formidable as he is, I join issue with him on this momentous question, and put myself upon the country.
Our constitution, as the present generation has always been taught, yearns towards liberty and the rights of man. The trial by jury, in the important cases of life, liberty, and property, is essential to these rights. The two, therefore, have such close affinity for each other, as to render it highly probable, if not morally certain, that the framers of the former would make provision for the latter; that they would lay hold of it, as by a law of instinct, to carry out their beneficent purposes. The trial by jury was necessary to the vitality of the constitution; and, I think, it would not be too strong an expression to say that the constitution, as it came from the hands of its founders, necessitated the trial by jury.
The object for which the constitution was framed, as set forth in its preamble,--namely, to “establish justice,” “promote the general welfare,” and “secure the blessings of liberty,” to the people,--could never be accomplished without the trial by jury. The preamble is not appealed to as a source of power; but it touches, as by the finger, the objects which it contemplated; it suggests the means by which its beneficent purposes were to be fulfilled, and it indicates the rules of interpretation by which all its provisions are to be expounded.
And not only the objects for which the constitution professes to exist, but historical facts from the time of Magna Charta, and before that time; the practice of the English and of our Colonial and Provincial courts before the revolution and during the confederacy;--in fine, all analogies and tendencies of constitutional law, and whatever belongs to ideas of freedom, conspire to force the expectation upon us, that, in a matter of such vast concernment as the life-long liberty or bondage of a man and his offspring, it has _not_ left us without the right of trial by jury.
The very first law “for the general good of the colony of New Plymouth,” (1623,) was, “that all criminal acts, and also all matters of _trespasses_ and DEBTS, between man and man, should be tried by the verdict of twelve honest men.”
In that fearful array of crimes which the Declaration of Independence charges home upon the king of Great Britain, that sublime instrument enumerates the following as among the most flagitious: “For depriving us, in many cases, of the benefits of trial by jury,” and “for protecting his troops, _by a mock trial_, from punishment for any murders which they should commit on the inhabitants of these states.”
According to Blackstone, the right to a trial by jury had been held, “time out of mind,” to be the birthright of Englishmen. The 29th chapter of the Great Charter guarantied this right, not only in cases of liberty, life, and limb, but in cases of property, real and personal.
In England, it has become a traditional saying, and drops from the common tongue, that the great object of king, lords, and commons, is to get twelve men into the jury box.
Judge Story says, “When our more immediate ancestors removed to America, they brought this great privilege with them, _as their birthright and inheritance_, as a part of that admirable common law which had fenced round, and interposed barriers on every side, against the approaches of arbitrary power. It is now incorporated into all our state constitutions, as a fundamental right; and the constitution of the United States would have been justly obnoxious to the most conclusive objection, if it had not recognized and confirmed it in the most solemn terms.”--3 _Com._ 652, 3.
Is it conceivable, then, that the heroes and sages of the revolution, who rose in resistance to the most formidable power on earth; so many of whom rose against their own kindred in the mother country, because they loved liberty better than father or mother, or brother or sister, and who endured the privations and horrors of a seven years’ war;--is it conceivable, I say, that, when they had achieved their independence, and there was no longer any earthly power to control them, they should have framed a fundamental law, and should not have imbued that law with the “_spirit_” of the trial by jury, as its breath of life? As British subjects, they were entitled to this trial. As Americans, did they renounce it? Did they wage war for seven years in order to place themselves in a worse condition than they had been placed in by their “tyrant”? Mr. Webster says they did. He charges this infinite folly and blindness upon them, singly and collectively, one and all.
I will now fortify this historical view, by a reference to some decisions of the supreme court which explain and define the meaning of the seventh amendment.[10]
What is the true meaning of those descriptive words, “suits at common law”? Has not Mr. Webster, relying on his high reputation, disposed of this matter a little too summarily? He says, “The constitution declares that in suits at common law, the trial by jury shall be preserved;” but he adds, “The reclaiming of a fugitive slave is not a suit at common law.”
But the supreme court of the United States has furnished us with an authoritative interpretation of the words of the constitution bearing on this subject. In the case of _Cohens_ VS. _Virginia_, 6 Wheaton, R. 407, they define what is meant by a “suit.” These are their words:--
“What is a _suit_? We understand it to be the prosecution, or pursuit, of some _claim_, demand, or request. In law language, it is the prosecution of some demand in a court of justice. ‘The remedy for every species of wrong is,’ says Judge Blackstone, ‘the being put in possession of that right whereof the party injured is deprived,’ The instruments whereby this remedy is obtained are a diversity of _suits_ and actions, which are defined by the Mirror to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta express it in the words of Justinian, ‘_jus prosequendi in judicio quod alicui debetur_,’--(the form of prosecuting in trial, or judgment, which is due to any one.) Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which he has a right.
“To commence a suit is to demand something by the institution of process in a court of justice; and to prosecute the suit is, according to the common acceptation of language, to continue that demand.”
According to the supreme court, then, a _suit_ is the prosecution of some _claim_, demand, or request. Now, the proceedings for a fugitive slave, according to the very letter of the constitution, are instituted to prosecute a _claim_. The person held to service or labor is to be delivered up, “on _claim_ of the party to whom such service or labor may be due.”
Still further, in a decision bearing directly on the right to a trial by jury, the supreme court have defined the term “common law” in special reference to its meaning in the amendment to the constitution, which secures this right “in suits at common law.” These are their words:--
“It is well known that in civil causes, in courts of equity and admiralty, juries do not intervene; and that courts of equity use the trial by jury only in extraordinary cases, to inform the conscience of the court. When, therefore, we find that the [7th] amendment requires that the right of trial by jury shall be preserved, in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By _common law_ they meant what the constitution denominated in the third article ‘law;’ not merely suits which the _common_ law recognized among its old and settled proceedings; but suits in which _legal_ rights were to be ascertained and determined, in contradistinction to those in which equitable rights alone were recognized, and equitable remedies were administered, or in which, as in the admiralty, a mixture of public law, and of maritime law and equity, was often found in the same suit. Probably there were few, if any, states in the Union, in which some new legal remedies, differing from the old common law forms, were not in use; but in which, however, the trial by jury intervened, and the general regulations in other respects were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited as examples variously adopted and modified. _In a just sense, the amendment, then, may well be construed to embrace all suits, which are not of equity or admiralty jurisdiction_, WHATEVER MAY BE THE PECULIAR FORM WHICH THEY MAY ASSUME TO SETTLE LEGAL RIGHTS.”--_Parsons_ VS. _Bedford_, 3 _Peters’s Rep._ 456, 7.
The last sentence I have underscored. In this sentence, the supreme court plainly say, that, if the subject matter of the litigation, or the object of the proceeding, be to determine a “legal right” which was formerly determined by a “suit at common law,” then such proceeding is embraced in the seventh amendment, and either party in interest has a right to the trial by jury. Now, is it not clear that any proceeding which determines whether a man owns himself, or is owned by another man, and which delivers one man into the custody of another, as his slave, or refuses so to deliver him, is, “whatever peculiar form it may assume,” a proceeding “to settle a legal right,”--the highest legal right? It is not a right in equity, in admiralty, or under the maritime law; but strictly and exclusively a _legal right_, and nothing else. According to the doctrine of the supreme court, then, in the above-cited case, the parties to such a proceeding have a right, under the seventh amendment, to a trial by jury. At least, is not such the “_spirit_” of the amendment?
But there is another well-known fact, which gives pertinence and stringency to the above view. At common law, the writ _de homine replegiando_,--the writ of personal replevin, or for replevying a man,--was an original writ; a writ which the party could sue out of right; one to be granted on motion, without showing cause, and which the court of chancery could not supersede. It was, according to the very language of our supreme court, recognized by the common law “among its old and settled proceedings.” The form of it is found in that great arsenal of common law writs, the _Registrum Brevium_. A man, says Comyn, may have a _homine replegiando_ for a negro; or for an Indian brought by him into England and detained from him; or it may be brought by an infant against his testamentary guardian; _or by a villein against his lord_. (Dig., Title Imprisonment, L. 4.)
If it could be brought by a villein against his lord, then it was the very writ for an alleged slave against an alleging owner. It was the mode provided by the common law for the determination of the _legal right_ asserted in a human being. I have always understood that, before the revolution, and before the framing of our constitution, Comyn’s Digest was a work of the highest authority. It must have been well known to all the lawyers in the convention. Did they expect, then, that when an alleged slave, or a known freeman, should be seized, that he should be hurried into bondage without any right to this ancient muniment of the subject’s liberties?
But “the reclaiming of a fugitive slave,” says Mr. Webster, “is not a suit at the common law.” The proceedings provided for by the statute of 1793, to which he “sees no objection,” have no analogy to the writ _de homine replegiando_. But can you destroy the right to a jury trial by changing the process? A sand-hiller from Georgia or North Carolina cannot come to Massachusetts and eject Mr. Webster from his Marshfield farm without being compelled to submit the question of title to a jury. But suppose Congress should say, in effect, that any one of the seventeen thousand postmasters in the United States might be brought into Massachusetts, (and, among so numerous a body, it is no libel to say there are some reckless men,) and that the said sand-hiller might go before the said imported postmaster, and after proof “to his satisfaction,” “either by oral testimony or by affidavit,”--an affidavit, be it remembered, taken any where in the United States,--then the claimant shall be put into immediate possession of the said farm, with a right to recover costs; and suppose Mr. Webster should spurn the authority of this illegitimate court, and demand an observance of the ancient forms of law, and a trial by jury under the seventh amendment; then the claimant has only to borrow Mr. Webster’s own words, and say, “This is not a suit at the common law:”--suppose all this, I say, and I would then ask if such a proceeding would be satisfactory to the last-named gentleman? The common sense of mankind is authority good enough to answer such a question; but we have high legal authority in addition.
In _Baker_ VS. _Riddle_, Mr. Justice Baldwin, one of the judges of the supreme court of the United States, held that it was not in the power of Congress to take away the right of trial by jury, secured by the seventh amendment, either,--“1. By an organization of the courts in such a manner as not to secure it to suitors;” or,--“2. By authorizing the courts to exercise, or their assumption of, equity or admiralty jurisdiction over cases at law.” “This amendment,” says he, “preserves the right of jury trial against any infringement by any department of the government.”--_Baldwin’s Rep._ 404.
Now, what was Mr. Butler’s bill but “a new organization of the courts,” or, rather, a new creation of some twenty thousand courts, “in such a manner as not to secure [the right of trial by jury] to suitors?” It was, indeed, a violation of both of the principles laid down by Judge Baldwin. It was the creation of tribunals unknown to the common law, and authorizing those tribunals to decide upon rights not belonging to either “equity or admiralty jurisdiction.”
In this connection, I will refer to the case of _Lee_ VS. _Lee_, 8 _Peters’s Rep._ 44.
By act of Congress of April 2, 1816, it was declared that no cause should be removed from the circuit court of the District of Columbia to the supreme court by appeal or writ of error, “unless the matter in dispute shall be of the value of one thousand dollars or upwards.” The plaintiffs in error were claimed as slaves. Their petition for freedom in the court below had been decided against them; and from this decision they appealed. The defendant in error took the objection that they,--their bodies and souls,--were not worth one thousand dollars, and therefore that they had no right to appeal. But the court said,--
“The matter in dispute, in this case, is the freedom of the petitioners. The judgment of the court below is against their claims to freedom; the matter in dispute is, therefore, to the plaintiffs in error, the value of their freedom, _and this is not susceptible of a pecuniary valuation_. Had the judgment been in favor of the petitioners, and the writ of error brought by the party claiming to be the owner, the value of the slaves as _property_ would have been the matter in dispute, and affidavits might be admitted to ascertain such value. But affidavits estimating the value of freedom are entirely inadmissible; and no doubt is entertained of the jurisdiction of the court.”
Now, if the supreme court of the United States, in construing a law, felt constrained by their oaths to hold the freedom of a man,--of any man, though he might be a drivelling idiot, or stretched upon his death bed, with only another hour to breathe,--to be worth more than a thousand dollars, how can a senator of the United States say, that in passing a law, under which human liberty may be retained or lost, he is not bound at least by the “_spirit_” of the constitution, if not by its letter, to hold that human liberty to be of greater value than twenty dollars, and therefore to provide the trial by jury for its protection? What can prove more strikingly that Mr. Webster violates the whole “spirit” of the constitution, when the framers and ratifiers of this amendment covenanted for and decreed the trial by jury, for such a paltry sum of money; and when the judges of the supreme court held human liberty to be worth more than any nameable sum of money, while he regards it as a thing to be disposed of by any corrupt postmaster, which any corrupt administration may corruptly appoint. Yet he says, “Nothing can be more false than that a jury trial is demanded in cases of this kind by the constitution, either in its letter, _or in its spirit_.”
I wish I could find, or felt at liberty to coin some milder word; but for want of a better, I must say that Mr. Webster seems to me, throughout this whole matter, to _dogmatize_. He makes strong assertions without offering even weak reasons. Of this character was his annunciation of the discovery of a new law,--“the law of physical geography,”--which was to suspend moral agency, and take from man his power to commit crime against his brother; as though in ascending hill-sides, freedom and slavery lie in different atmospherical strata, and are bounded by each other impassably; as though there were any mountain so “exceeding high,” to whose top even Jesus Christ could go, that Satan could not go there to tempt him. This does not strike the common mind like a true discovery;--like the law of gravitation, for instance, discovered by Newton, or the existence of the planet Neptune, by Leverrier. It is rather like that earliest pretended discovery on record, which was designed to seduce, and did seduce, the first parents of us all. _Ye may eat of the forbidden tree, for ye shall_ NOT _surely die_. So Mr. Webster says, Let slaves be driven in coffles, or carried in ships’ holds to the new territories; they cannot live there. Will not the results of the two experiments bear a lively analogy to each other, and be likely to reflect similar credit upon their authors?
So, too, when he tore some of the brightest pages from the New Testament, by proclaiming that “there is to be found no injunction against that relation [of slavery] between man and man, in the teachings of the gospel of Jesus Christ, or of any of his apostles”! Upon how many Christian hearts did this sentiment fall like an anathema against all truth. He does not say any _express_ injunction, but “no injunction;”--none of any kind. No _positive_ injunction against slavery in the New Testament!--a book designed to regulate our life and condition for two worlds; yet, altogether, not so large as many a congressional report; less voluminous than the ordinances of many of our city governments;--a book, therefore, which, from the necessity of the case, must deal with great and immortal principles, and could not descend into specification and detail;--and because such a book as this contains no _express_ injunction against slavery, therefore slavery is not forbidden by it, but has the implied approval of its silence! Surely, never was there a more sinister, unsound, unchristian argument uttered by infidel or pagan. Is there any _express_ injunction “in the teachings of the gospel of Jesus Christ, or of any of his apostles,” commanding us to declare the African slave trade piracy? Is there any _express_ injunction “in the teachings of the gospel of Jesus Christ, or of any of his apostles,” against cannibalism? Do they any where say, “Ye shall not eat one another?” Yet what enormity and flagitiousness would it be to infer, that, therefore, men and women may turn ogres and ogresses, and eat human flesh as they do mutton and sirloin. The inference in the latter case is every whit as warrantable and as sound, as in the former. Yet I consider that this theological argument does not violate the “spirit” of the gospel, any more than his constitutional argument violates the “spirit” of the constitution. John Wesley, who had lived amid slavery, denominates it the “sum of all villanies,” and if Christ came into this world and left it, without permeating and saturating all his teachings with injunctions against the injustice, cruelty, pride, avarice, lust, love of domination, and love of adulation, which are the inseparable accompaniments of slavery, then I think the Christian world will cry out, that so far as this life is concerned, his mission was substantially fruitless.
“O, star-eyed Science! hast thou wandered there, To bring us back these tidings of despair?”
So, if the constitution of the United States contains not even any _implied_ security for the liberty of all the colored population in the free states and territories, and for the trial by jury as the only adequate means of securing that liberty, then would it not be more creditable to its framers never to have put their signatures to it?
Let me here compare the relative value of life or property on the one side, with liberty on the other, and see what inference must be drawn in favor of affording as great a protection to the latter as to the former.
The fifth article of amendment declares that “no person shall be deprived of life, liberty, or property, without due process of law.” The commentators say that these words, “due process of law,” are the equivalent of the phrase “the law of the land,” in the 29th chapter of Magna Charta; and hence that “this clause in effect affirms the right of trial according to the process and proceedings of the common law;” that is, by jury. (See Story’s Comm. 661; 2 Inst. 50, 51; 2 Kent’s Comm. 10; 1 Tucker’s Black. App. 304.)
Now, consider that the general right of trial by jury, in cases of _life_, was expressly secured by the constitution as originally adopted; that, somewhat more than three years afterwards, the same right was expressly secured for _property_, in suits at common law, whenever the value in controversy should exceed twenty dollars; and then say whether there is not the strongest implication in favor of the same right, in cases of human liberty, which is so much more precious than life and property combined. I do not here say it is an implication that binds the courts in administering a law. That is not the point under discussion. But is it not an implication that binds the _legislator_, so that when legislating on the subject, he cannot consciously and wilfully abandon it without infidelity to his oath? I do not believe that many men from the free states will ever be found in Congress who will not take this view of the subject. Indeed, not a few of the best lawyers and jurists have held that the implication binds the courts; and therefore that the statute of 1793 is unconstitutional.[11]
Mr. Webster treats the two cases, of fugitives from justice and fugitives from service, alike; although one can almost adopt his own language, and say that “nothing is more false” than that they are alike. In regard to the first class, the constitution says, a person “_charged_” with treason, &c.; but in regard to the second class, it says no person “_held_,” &c.
According to the obvious intent of this language, the alleged fugitive must be _proved_ to be _held_, _bound_, _obligated_. It is not enough that he be _charged_ to be “held” to service, though it is enough that a man be “_charged_” with crime. To bring the first case within the legal category of the second, its terms should be, “a person _guilty_ of treason,” &c., shall be delivered up. Were such the phraseology, would any one doubt that proof of guilt should precede delivery, and that there could be no other foundation for it?
Mr. Webster says, “perhaps the only insuperable difficulty” to a trial by a jury, “has been created by the states themselves.” Suppose this to be so, I would ask whose duty is it to act first,--that of Congress to provide the trial, or that of the states to remove the impediment? Shall the states repeal their laws first, and leave the liberty of the citizens in jeopardy; or shall not Congress legislate first, and secure that liberty? Which is of the greater importance, that the owner should recover his slave, or that the citizen should retain his freedom? I answer according to the language which the criminal law uses respecting guilt and innocence, that it is better that nine hundred and ninety-nine, that is, an indefinite number of slaves should escape, than that one free man should be delivered into bondage.
Besides, I think no state legislated on the subject for the protection of its own citizens, until 1842. This was after Congress had neglected, for more than fifty years, to do its duty. Why, then, should Mr. Webster cast the blame upon the states which forbore for more than fifty years to act protectively for themselves, when Congress, of which he had been a leading member for nearly forty years, had endangered, instead of securing, the liberty of their citizens? When he said that “every member of every northern legislature is bound by oath to support the constitution of the United States,” why did not the retort suddenly rise to his mind that _he_ was bound by oath not less than they; and that his oath embraced the men that owned freedom, not less than the men that owned slaves? Besides, he charges only a _part_ of the free states with being guilty of unjust legislation. Shall the innocent states suffer because of the others’ offence? Rather shall not Congress first supply the means of protection to the citizens of all?
It seems to me, too, that the fourth amendment has an important “_bearing upon the subject_,” because it shows that the master-thought of our fathers, in forming the constitution, was to secure the liberties of the citizen. It provides against “unreasonable seizures” of “persons.” I suppose the main idea of this amendment was to secure the citizen against “unreasonable seizure,” even in cases where he should afterwards, and at _some time_, be brought to trial according to the forms of the common law. But what “seizure” can be more “unreasonable,” than one whose object is, not an ultimate trial, but bondage forever, without trial? Can mortal imagination conceive of any seizure less entitled than this to be called “reasonable?” With what indignation did our fathers frown because they were transported beyond seas _to be tried_; yet, by our present law, and by the law which Mr. Webster promises to support, a free man may be transported, if not beyond seas, at least beyond lands, and beyond states, _not to be tried_, but to be held in slavery forever without trial. If a free citizen of Massachusetts should be seized and plunged into a Massachusetts prison, to be kept there for life; and his children, as a consequence of his fate, were put into the same, or into other prisons, as fast as they were born, to be also kept for life; and such was the original object and avowed purpose of the seizure, would not this conflict a little with the “_spirit_” of the fourth amendment? And does this proceeding conflict with this “_spirit_” any the less, because the prison is a southern rice swamp, or cotton field, where the nearest door or outlet of escape is more than a hundred miles from the spot of confinement? In common law actions, trover, detinue, replevin, &c., &c., the trial is to be in the vicinage, except there is some overpowering reason for changing the venue, or place of trial. But here is a transfer of the party, not for a trial, but for evading a trial.
I submit, then, to the public, that here are three provisions of the constitution, each one of which does have “_a bearing on the subject_.” Each strengthens the other. They form a triple implication, if not a _trinoda necessitas_, which no man, however powerful he may be, can break.
The argument which the lawyers call _ab inconvenienti_,--the argument from inconvenience,--has been pressed into the service of the slaveholder to endanger the liberties of the citizen. I answer, there are two sides to this argument; nor was it wise in the slaveholder, or his northern friends, to suggest it. It seems to me quite as _inconvenient_ for a free man to lose his liberty, as for a slaveholder to lose his slave. If a southern man sues a northern one for the value of a bale of cotton or a barrel of rice, must not the plaintiff await the next term of the court before he can enter his action, abide by the rules of the court respecting continuances, and submit to the order of business in taking his turn before a jury? To obviate this inconvenience, has any legislature or any court ever proposed to set aside or annul, at once, all the securities by which we hold property and life? And how stands the question respecting evidence or proof? If difficult for a slave claimant, from Texas, to prove title to his slave in Massachusetts, how infinitely more difficult for a citizen of Massachusetts to prove title to himself in Texas. But Mr. Webster says there are independent courts at the south, “always open and ready to receive and decide upon petitions or applications for freedom.” Suppose this to be true; how is a man or a woman, whose master knows that he or she is free, to get to the courts? Mr. Webster seems to think that as soon as a kidnapping slave dealer shall transport his human prey to the south, he will at once take him to, or allow him to go before a court of justice, or will sell him to some brother Samaritan who will do so. Does not every body know that any man, who is capable of the enormous guilt of seizing or buying a freeman, will make it impossible for that freeman to regain his birthright?
Mr. Webster says, persuasively, that the alleged slave “is only remitted, for inquiry into his rights, to the state from which he fled.” But suppose he had never “fled,” but was demeaning himself as a peaceable citizen, under the solemnly pledged protection of the government, on the soil where he was born! This is the false idea that underlies the whole of Mr. Webster’s seductive letter, that under such a bill as Mr. Butler’s, nobody but a slave would ever be arrested.
I have no doubt that what Mr. Webster says about southern courts being “fair and upright,” is very generally and extensively true; but I have had a little personal knowledge of southern courts, and I have no hesitation in saying that there has been one, at least, before which, if a slave were suing for his freedom, and any popular clamor against him should exist, he would have no more hope of obtaining his liberty through the “fairness” of the court, than, if thrown overboard in the middle of the Atlantic ocean, he would have of saving his life by swimming ashore.
Mr. Webster holds Massachusetts up to the ridicule of the world, because, as he says, she “grows fervid on Pennsylvania wrongs;” and he has deemed it his duty to inquire how many seizures of fugitive slaves have occurred in New England within our time. Is this the Christian standard by which to estimate the evil of encroachments upon the most sacred rights of men? If I repose in contentment and indifference, because my own section, or state, or county, is as yet but a partial sufferer, why should I not continue contented and indifferent while I myself am safe? In providing for the liberties of the citizen, under a common government, I think Massachusetts worthy of all honor and not of ridicule, because she does “grow fervid on Pennsylvania wrongs,” and on the wrongs of an entire race, whether in Pennsylvania or California, or any where within the boundaries of our own country. I see no reason why my sympathies as a man, or the obligations of my oath as an officer, in regard to the nearer or the remoter states, should be inversely as the squares of the distances. Even with regard to foreign countries, did Mr. Webster think so, in those better days, when his eloquent appeal for oppressed and bleeding Greece roused the nation, like the voice of a clarion. Did Mr. Webster deem it necessary to make inquisitions through all the New England States, to learn how many Hungarian patriots they had seen shot at the tap of drum, or how many noble Hungarian women had been stripped and whipped in their market places, before he thrilled the heart of the nation at the wrongs of Kossuth and his compatriots, and invoked the execrations of the world upon the Austrian and Russian despots? I see no difference between these cases, which is not in favor of our _home interests_, of our own _domestic rights_, except the difference of their bearings upon partisan politics and presidential rivalries. Mr. Webster quotes and commends Mr. Bissell, who said that those southern states which had suffered the least from loss of slaves, made the greatest clamor. That statement of a fact was well put by Mr. Bissell; but was it well applied by Mr. Webster? In the statement, it was a question as to the loss of property. In the application, it is a question as to the loss of liberty. The latter is not, therefore, the “counterpart” of the former. Blindness to the distinction between the value and the _principle_ of property, and the value and the _principle_ of liberty, could alone have permitted the comparison.
But I have extended this communication greatly beyond my original purpose. Several other topics contained in Mr. Webster’s speech, or growing out of what has since happened in relation to it, and hardly less important than those already considered, must await another opportunity for discussion; unless, indeed, some disposal of the question shall render further discussion unnecessary.
I am not unmindful of the position in which I stand. I am not unaware that circumstances have placed me in an antagonist relation to a man whose vast powers of intellect the world has long so vividly enjoyed and so profoundly admired. I well know that a _personal_ contest between us seems unequal, far more than did the impending combat between the Hebrew stripling and that champion of the Philistines who had a helmet of brass upon his head, and greaves of brass upon his legs, and the staff of whose spear was like a weaver’s beam. But the contest is not between _us_. It is between truth and error; and just so certain as the spirit of Good will prevail over the spirit of Evil, just so certain will Truth ultimately triumph. In such a case as this, there is one point of view in which Mr. Webster is a desirable antagonist; for the thick and far-beaming points of light which he has left all along his former course of life, cannot fail to expose, to all eyes but his own, the devious path into which he has now wandered.
HORACE MANN.
WASHINGTON, June 6, 1850.
* * * * *
Several editions of the preceding Letters having been exhausted, another was printed, under date of July 8, 1850, with Notes.
FOOTNOTES:
[9] All my quotations from Mr. Webster are taken from the edition of his speech which he dedicated to the “PEOPLE OF MASSACHUSETTS,” March 18, 1850. Among the numerous readings which have appeared, I suppose this to be the most authentic.
[10] This argument may be found repeated and enlarged upon in a subsequent part of the present volume, p. 409, _et seq._ It is retained here only to preserve the logical and legal symmetry of the letter.
[11] See an elaborate opinion of Chancellor Walworth, 14 Wend. 507, _Jack_ VS. _Martin_.
NOTES
TO THE PRECEDING LETTERS.
I had hoped not to be required to say more on the subject discussed in the above Letters; but, during the last week, Mr. Webster has issued, in a pamphlet form, a speech made by him in the Senate on the 17th ult., accompanied by his letter, dated on the same day, to some gentlemen on the Kennebec River. In this letter, Mr. Webster has referred to me again; and I regret exceedingly to say, that he seems to have given himself full license to depart from all the rules of courtesy belonging to a gentleman, and to disobey the obligations of truth belonging to a man.
That I may not be supposed to make any over-statement respecting the character of Mr. Webster’s language towards me, as expressed in this letter, I quote a specimen or two from it.
“A pamphlet has been put into circulation,” says he, referring to the first of the above two letters, “in which it is said that my remark is ‘undertaking to settle by mountains and rivers, and not by the Ten Commandments, the question of human duty,’ ‘Cease to transcribe,’ it adds, ‘upon the statute book what our wisest and best men believed to be the will of God, in regard to our worldly affairs, and the passions which we think appropriate to devils will soon take possession of society.’” He then adds, “One hardly knows which most to contemn, the nonsense or the dishonesty of such commentaries on another’s words. I know no passion more appropriate to devils than the passion for gross misrepresentation and libel,” &c., &c.
The angry and reproachful language, in which Mr. Webster has here indulged himself, releases me from all further obligation to treat him with personal regard. Yet I do not mean to avail myself of this release. Under our present relations, however, I do feel at liberty to use considerable plainness of speech.
1. Let me first refer to a misrepresentation by Mr. Webster of a plain matter of fact. In professing to quote, from his 7th of March speech, a passage on which I had made a criticism, he alters the passage so as to evade the criticism, and then condemns me for making it. The original passage in his speech read as follows: “I would not take pains to reäffirm an ordinance of Nature, nor to reënact the will of God.” This was the sentiment I criticized. It appears in these words in the _National Intelligencer_, in the _Washington Union_, in the _Republic_, in the _Globe_, and in the pamphlet edition of his speech, which he dedicated to the people of Massachusetts. But in the Kennebec letter, in order to elude the point of my criticism, he has interpolated a word into the sentence, which changes its whole meaning. Affirming that he quotes himself, he says, “I would not take pains USELESSLY to reäffirm an ordinance of Nature, or to reënact the will of God.” By foisting in the word which I have underscored, he changes the entire character of the sentiment advanced. As now stated, nobody can dissent from it; for who would announce, in a distinct proposition, that he would _uselessly_ do any thing? But, as originally stated, nobody can assent to it. This alteration of his language, after my criticism upon it was made, is not only unjust towards me, but it contains a latent confession that he knew he was wrong, but thought this surreptitious changing of his doctrine to be a less evil than a frank acknowledgment of his error. Had he truly quoted the original false sentiment, the world would have seen that I was right; but, in his dilemma, he falsely interpolated a true sentiment, not only to evade the force of my criticism upon him, but to make occasion for an unfounded imputation against me.
I shall not undertake to define or describe a proceeding like this in words of my own. But I may be permitted, without discourtesy, to use a sentiment advanced by himself, and leave its application to be made by its author. It is in the same connection that Mr. Webster makes the following remark: “I know no passion more appropriate to devils than the passion for gross misrepresentation and libel.” Can any mortal specify a grosser instance of “gross misrepresentation and libel” than when one of the parties to a public discussion has uttered an obnoxious sentiment, and when this sentiment has met with very general reprobation, and when, in the progress of the discussion, the guilty party professes to restate the case, that he should then expunge the false sentiment he originally advanced, foist a trite and common-place one in its stead, then apply the criticism made on the suppressed sentiment to the forged one, and proceed to condemn his critic for “nonsense” or “dishonesty”? Is it not as palpable a case of alteration, as to change the date of a note of hand in order to take it out of the statute of limitations, or to obliterate the description of the premises in a deed, and put a more valuable estate in its place? This proceeding is worse, if possible, than the former “misrepresentation and libel” of my argument and myself, contained in the Newburyport letter. But the subject is painful, and I leave it.
2. Following up his attack upon me, Mr. Webster proceeds to say:
“In classical times, there was a set of small but rapacious critics, denominated _captatores verborum_, who snatched and caught at particular expressions; expended their strength on the _disjecta membra_ of language; birds of rapine which preyed on words and syllables, and gorged themselves with feeding on the garbage of phrases, chopped, dislocated, and torn asunder by themselves, as flesh and limbs are by the claws of unclean birds.”
May I most respectfully ask Mr. Webster on what authority he says there was, “in classical times,” any such “set” of “small but rapacious critics,” as he here speaks of--or exemplifies? In my ignorance, I have always supposed the “_captator_” of classical times, to be a kind of “genius” the very opposite of what Mr. Webster describes. Horace, Juvenal, and Livy represent him as a selfish, sycophantic gift-seeker, or fortune-hunter; not a twister, torturer, or interpolator, even, of words and phrases. If _captator_ meant a cavilling, cynical critic, then _captatrix_ should mean a scold, a vixen, or virago; but its true meaning was “a fawning gossip,” or “mean flatterer.”
No mistake could well be greater than that the old _captatores_ “expended their strength on the _disjecta membra_ of language,” or “gorged themselves with the garbage of phrases, chopped, dislocated, and torn asunder, by themselves.” On the contrary, they were “gentle as a sucking dove.” The accompanying words descriptive of the “_captator_” were not _torve_, _ringi_, and so forth; but _collide_, _blande_, or _blandicule_. There was nothing like the harpy about them, as Mr. Webster seems to suppose, in this remarkable description of his, which is as rhetorically unsavory as it is classically untrue.
So far from there being any “set” of critics, in classic times, denominated and known as _captatores verborum_, I doubt whether even the abstract noun “_captatio_” occurs half a dozen times, in all the classics, in connection with the genitive of his pretended appellation. He could hardly have made a greater or more ludicrous mistake. It is exceedingly to be regretted, after the numerous instances we have lately had of Mr. Webster’s bad logic, and bad humanity, and bad discoveries of natural law, that he should now offend the classical taste of the country, and bring discredit upon the New England colleges, by his bad Latin. This whole anti-classical paragraph about “_disjecta membra_,” and “chopping,” and “gorging,” and “uncleanness,” is an unclean conception of his own; not a pure but an impure invention, and seems more epigastric than intellectual in its origin.[12]
3. I will now give a specimen or two of Mr. Webster’s errors in geography, and of his false citation of authorities. It will then be seen that his geographical statements are worthy to be placed side by side with his classical. In the same letter, he says the extent of New Mexico, north and south, on the line of the Rio Grande, “can hardly be less than a thousand miles.” This makes a little more than _fourteen_ degrees of latitude. Now, as its northern boundary is in 42°, its southern must be as low as 28°. This is _four_ degrees below El Paso del Norte. Yet Mr. Webster, on the 13th of June last, declared himself in favor of fixing the northern boundary of Texas at or near El Paso, and more than four degrees of latitude north of what he here says is the southern boundary of New Mexico. He also supported that part of the compromise bill which proposes to give Texas, not only these four degrees of latitude, but millions of money also, for taking what, as he now says, belongs to New Mexico and the United States. How can these views stand together?
In his 7th of March speech, Mr. Webster declared it to be a natural impossibility that African slavery could ever exist “in California or New Mexico.” (p. 42.) He now defines the southern boundary of New Mexico. It can hardly be less, says he, than “a thousand miles” from the forty-second degree of north latitude. This places it four degrees south of El Paso. He is in favor of that part of the bill which gives these four degrees to Texas. According to him, therefore, should Texas get possession of these four degrees of what is now New Mexican territory, slavery will exist, as far up as the old southern boundary line of New Mexico, by virtue of the laws of Texas, but beyond this line, although within the bounds of Texas, it will not exist, because forbidden by the “will of God.” Hence the extraordinary spectacle will be exhibited, of the existence of slavery coming plump up to the south side of an imaginary line, by the laws of Texas, while on the north side of the said imaginary line, its existence will be cut square off by the “will of God,” although both sides are within the same political jurisdiction. This will be a miracle, compared with which the supposed miraculous preservation of the Jewish feature and complexion, for two thousand years, will be unworthy to be mentioned. It remains to be seen, however, whether this miracle will be vouchsafed to Mr. Webster, as a proof of the divine favor.
On the 5th of June, Mr. Webster voted against incorporating the “Proviso” into the governments for New Mexico and Utah, because slavery was already prohibited there by “Asiatic scenery” and the law of “physical geography.” On the next day, too, he voted against the following amendment, offered by Mr. Walker: “And that peon servitude is forever abolished and prohibited.” Whether he so voted because this species of slavery, (which is an existing institution at the present time,) was prohibited by “scenery” and “geography,” does not appear.
But on the 17th of June, Mr. Webster, in the Senate, suggested a qualification of his doctrine as laid down on the 7th of March, viz., that “every foot of territory of the United States has a fixed character for slavery.” An uncertainty as to the boundary line between New Mexico and Texas, gave rise to this qualification. “Let me say to gentlemen,” said Mr. Webster, “that if any portion which they or I do not believe to be Texas, should be considered to become Texas, then, so far, that qualification of my remark is applicable.” (_Cong. Globe_, 31st Cong., 1st session, p. 1239.) That is, if the compromise bill should so establish the boundary line between New Mexico and Texas, as that “any portion [of New Mexico] which they or I [other gentlemen or Mr. Webster,] do not believe to be Texas, should be considered to become Texas,” then _as Texan territory_, it might lose its “fixed character,” and become slave territory, notwithstanding the “ordinance of Nature” and the “will of God,” to the contrary. But, strange to say, on this same 17th of June, the Kennebec letter was written, which carries the southern boundary of Mexico, on the east side of the Rio Grande, four degrees below El Paso, and, of course, includes all that region within New Mexico, and therefore within the “ordinance of Nature” and the “will of God!” So that, after all, he acknowledges that the “ordinance of Nature” and the “will of God,” as he expounds them, may be overridden by the laws of Texas;--in which view he is undoubtedly right.
But his citation of authorities is among the most surprising of all his aberrations from fact. He first quotes Major Gaines, who, as he says, “traversed a part of this country during the Mexican war.” By “this country,” I suppose he means New Mexico. If he does not mean New Mexico, then the citation has no relation to the subject. If he does mean New Mexico, then he asserts what is untrue. Major Gaines did not go within four or five hundred miles of New Mexico during the war; and if the quotation from him was designed to create the belief that, in what Major Gaines said, he was speaking of New Mexico, it was as gross an imposition as could well be made.
The next citation is from Colonel Hardin. Two sentences are taken. I transcribe the first with Mr. Webster’s italics.
_“The whole country is miserably watered; large districts have no water at all. The streams are small, and at great distances apart._ One day we marched on the road from Monclova to Parras, _thirty-five miles, without water_; a pretty severe day’s march for infantry.”
And what country does this describe?
“From Monclova to Parras, thirty-five miles”! says Colonel Hardin. And where is Monclova? Away down south, in Coahuila, hundreds of miles from any part of New Mexico.
I submit the following notes, one from the colonel of the regiment in which Mr. Gaines was a major; and the other from a major in the regiment of which Mr. Hardin was colonel. Both letters are from gentlemen who are now members of Congress.
HOUSE OF REPRESENTATIVES, June 27, 1850.
SIR; In reply to your note of this date, I state that Major Gaines did not, during the Mexican war, travel through any part of New Mexico. Major Gaines entered Mexico at Camargo, on the Rio Grande; was engaged near Saltillo, until he was captured and taken to the city of Mexico; and thence he returned to the United States by the way of Vera Cruz.
I am, sir, very respectfully, &c.,
HUMPHREY MARSHALL.
P.S. In reply to your verbal inquiry, whether Colonel Hardin was in New Mexico, I state, that Colonel Hardin was attached to General Wool’s command, and passed from San Antonio de Bexar, by the Presidio de Rio Grande, Monclova, and Parras, to Saltillo; so that he did not enter New Mexico.
H. M.
Hon. H. MANN.
HOUSE OF REPRESENTATIVES, June 28, 1850.
HON. H. MANN. SIR; In reply to your note of this date, I have the honor to say, that I was an officer of the first regiment, Illinois volunteers, commanded by Colonel J.J. Hardin, during the Mexican war, and that during the time Colonel Hardin was in command of the regiment he was not in New Mexico. His nearest point to New Mexico was Monclova or Parras, which was several hundred miles distant. In my opinion, Colonel Hardin was never in New Mexico; he certainly was not in that country during the Mexican war.
Respectfully,
W. A. RICHARDSON.
Now what possible excuse can be offered for these misleading citations? What information would be given of the soil of the Genesee valley of New York, by proving the condition of the sands of Cape Cod?
Mr. Webster next quotes, for the second time, the letter of Hugh N. Smith, Esq. This letter, if taken by itself, would render it improbable, in Mr. Smith’s opinion, that slavery would go into New Mexico; but it by no means proves the physical impossibility of its existence there. But what different language has Mr. Smith since held in his address to his constituents in New Mexico itself? I will quote a few passages from this address to show its general drift and intent.
“Your state, [New Mexico,] is threatened with dismemberment, and _what is yet more fatal, the introduction of slavery into its bosom_.” (p. 1.)
“The most formidable part of this combination against you is that which originates in the slave interest. It not only rallies against you the whole slaveholding south, but all the influence of selfish, venal, and ambitious men in the north, _looking to speculations in discredited bonds and land jobbing, or to the political honors which the combined vote of the south may promise_.” (p. 2.)
“The doctrine of the slaveholding states, in regard to their domestic institutions, is non-intervention; but with regard to yours, it is _instant intervention_, to set at nought the prohibition of slavery, which you brought with you into the Union,” &c. _Ib._
“I am myself a native of the section, [Mr. Smith is a Kentuckian,] whose fate I deplore, and if my duty did not require, I would be the last to advert to the malady that preys upon its life.... The schemes of those who would bind you to the destiny of the slave states, render it necessary that your representative should be excluded from the halls of Congress.” (p. 3.)
“_You are left prostrate, that Texas may dismember and divide New Mexico, and subject her to southern influence; that negro slavery may be introduced into the remnant of territory that may not be appropriated to Texas; and, finally, that the region thus secured to southern policy may become the stock on which to graft new conquests from Mexico._” (p. 4.) [_These_ are Mr. Smith’s italics.]
“The first step in this process is to supplant the fundamental municipal institutions brought by New Mexico with her into the Union, by a territorial government, which, by omitting the inhibition against slavery in the Congressional act, failing to reserve that contained in the Mexican code, and preventing the people of the territory from legislating upon the subject of slavery, and from reënacting the prohibitory clause, will unquestionably abolish all protections against that institution; and, indeed, more effectual legislation for the extension of slavery into New Mexico could not be enacted.” (p. 5.)
“The whole body of southern influence, now that mining is a mania, would combine to pour an immense colony of slaves into New Mexico. The consequence of this would be to level the whole population of New Mexico with the new caste brought into competition; and you, my Mexican fellow-citizens, who till your own soil with your own hands, would be compelled to fly your country, or be degraded from your equality of freemen, forfeiting your hopes of rising to the new elevation promised by your alliance with the great North American republic, and living only to witness the ruin of all that renders life desirable.” (p. 6.)
This is what Mr. Smith says, when he writes home to his own people, who know all about their own country, and its danger of being invaded by slavery.
Now, let the reader suppose himself to have read from Mr. Smith’s address, as much more of the same kind as the above, and then say how far his evidence goes to sustain Mr. Webster’s discovery, that slavery can never go into New Mexico. Mr. Smith’s address has been published for two months; it has been on the tables of members, published, and quoted from in the newspapers, and yet Mr. Webster continues to cite Mr. Smith as a witness in his favor. What influences were used to induce Mr. Smith to withhold, in the letter to Mr. Webster, the facts and views which he has so clearly brought out in the letter to his constituents?
The next and last citation is from an officer at Santa Fe. No name is given. We are informed neither of the character of the author nor of his means of information; and if this authority is as fallacious and deceptive as the preceding, it is a great deal worse than nothing. It would be like the testimony sometimes offered in court, which ruins the cause and dishonors the counsel.
4. In his Kennebec letter, Mr. Webster says, “I have studied the geography of New Mexico diligently, having read all that I could find in print, and inquired of many intelligent persons, who have been in the country, traversed it, and become familiar with it.” He sets forth his knowledge in this confident tone, so that his impressions in favor of the _natural_ prohibition of slavery may be more readily received. According to this statement, he must have read the letters of Mr. James S. Calhoun, Indian agent at Santa Fe, communicated to Congress by the President, on the 23d of January last. Speaking of the Navajoes, a tribe of 7,000 Indians, within the limits of what it is proposed to include in New Mexico, Mr. Calhoun says, that it is “not a rare instance for one individual to possess 5,000 to 10,000 sheep, and 400 to 500 head of other stock,” (p. 184;) and that their country “is rich in its valleys, rich in its fields of grain, and rich in its vegetables and peach orchards.” (p. 199.) “We encamped,” says he, “near extensive cornfields, belonging to the Navajoes.” (p. 197.) Their “soil is easy of cultivation, and capable of sustaining nearly as many millions of inhabitants as they have thousands.” (p. 202.) Look at this: A country owned by one tribe capable, according to Mr. Calhoun, of sustaining nearly 7,000,000 inhabitants, and yet, as Mr. Webster avers, inaccessible to slavery, on account of its barrenness!
Speaking of the Indians, (Pueblos,) on the Rio Grande, Mr. Calhoun says, “These people can raise immense quantities of corn and wheat, and have large herds of sheep and goats. The grazing for cattle generally is superior.” (p. 206.) Of the more western Pueblos, he says, they have “an extent of country nearly four hundred miles square”;--more than twenty times as large as Massachusetts;--“they have rich valleys to cultivate, grow quantities of corn and wheat, and raise vast herds of horses, mules, sheep, and goats, all of which may be immensely increased by properly stimulating their industry, and instructing them in the agricultural arts.” (p. 215.)
I might cite much more from the same authority, to the same effect; but I do not refer to Mr. Calhoun so much for the purpose of showing the agricultural capabilities of New Mexico, as of asking why Mr. Webster did not quote from this recent official work, which has been lying on the tables of members for months, instead of quoting descriptions from military officers respecting a country which he well knew they had never seen?
There is good reason to believe that there are wide tracts of fertile land lying between the Sierra de los Mimbres and the Sierra Nevada, on the east and west, and the 32d and 35th degrees of latitude. The waters at the mouth of a river give no doubtful indication respecting the country from which they flow. If the volume be large, we know it must drain an extensive region; for the waters of a great river cannot be supplied from a narrow surface. So if the water be muddy, as is said to be the case with that of the Colorado, it is proof that it courses through a diluvial country. But however this may be, all accounts concur in representing New Mexico to be rich in mines; and mines are the favorite sphere for slavery, as the ocean is for commerce.
In his late speech in the Senate, Mr. Davis, of Massachusetts, said, that however it might be with regard to employing slaves in New Mexico for raising crops of corn or cotton, there was still one purpose to which they might be applied,--the most odious of all purposes,--to raising crops from themselves. From this “Southern Hive,” the markets of Texas and Louisiana might be supplied with “vigintial” crops of human beings. It will be incumbent on Mr. Webster to invent some new “physical” law to meet this astute suggestion of his colleague. “Asiatic scenery” will hardly answer his purpose here.
Within the limits of the proposed territory of New Mexico, it is said, on the authority of Humboldt, that that powerful and comparatively civilized people, the Aztecs, once resided. Can any person for a moment believe that the Aztecs ever grew to opulence and power, in any such sterile and desolate region, as Mr. Webster’s “diligent reading” portrays?
But what must satisfy every man whose blindness is not of the soul rather than of the senses, is the fact that the people of New Mexico, in the constitution which they have just framed, have embodied a prohibition of slavery in their fundamental law. Had slavery been forbidden there by any “Asiatic scenery,” or by any “law of physical geography,” who should know it better than they? They have had slavery amongst them heretofore, and therefore they know it can invade them again, and therefore they forbid it; and in the choice of senators to Congress under the new organization, should any candidate put forward the vagary, the phantasm, the fatuity, that slavery _cannot_ exist among them, they would doubtless deem him a less fit subject for the Senate of the United States than for sanitary treatment.
How stands the evidence, then, on the question, whether “California and New Mexico,” from their geology, their geography, or their Asiatic scenery, are inaccessible or not, to the invasion of slavery? It is well known that the war with Mexico was provoked, and violently precipitated upon the country, in order to extend the domain and the power of slavery. In negotiating for the cession of California and New Mexico, the Mexican commissioners strove to introduce a prohibition against slavery into the treaty. This demonstrates that they thought slavery could exist there. Our minister declared that he would assent to no such stipulation, though they would cover all the land a foot thick with gold. This shows the tenacity with which Mr. Polk’s administration, and all its southern friends, adhered to their original purpose of obtaining new territory for slavery. In view of this, the House of Representatives again and again voted to apply the proviso to whatever territory should be obtained. When the treaty was ratified, many of the leading senators voted against the clause for acquisition, foreseeing the present controversy, and hoping to avert it. Even after the treaty was ratified, leading southern Whigs in the House voted against paying the first instalment under it, still clinging to the hope that the territory might be restored to Mexico, and this cause of dissension withdrawn. During all this period, fourteen of the northern legislatures, many of them again and again, voted that the proviso should be applied. The present six months’ contest, in the Senate and House, between the north and the south, is conducted solely on the conviction that slavery _may_ exist in the territories; and that it will or will not exist there, according as the law allows or forbids it. Otherwise it would be the most nonsensical and nugatory discussion ever engaged in out of a lunatic asylum. Once make it as clear as any law of physical nature, that slavery can never transgress the bounds of the new territories, and there is not a man so demented that he would any longer contend either for the proviso, or against it. Mr. Webster was always of the same opinion, and has declared it a hundred times. In his Marshfield speech, September 1, 1848, he said, “He [General Cass] will surely have the Senate, and with the patronage of the government, with every interest that he, as a northern man, can bring to bear, coöperating with every interest that the south can bring to bear, we cry safety before we are out of the woods, _if we feel that there is no danger_ [of slavery] _as to these new territories_.” Up to the 7th of March, 1850, then, when he abandoned all the doctrines and sentiments he had ever before advocated on this subject, and when he incurred the public, hearty approval and encomiums of Mr. Calhoun, by his moral agility in springing, at one leap, from Massachusetts to South Carolina;--until this time, Mr. Webster had always held, that slavery would invade the new territories if not barred out of them by positive law. And what would be still more remarkable, if the doctrines of the 7th of March speech had the least shadow of soundness in them, is, that they have now been before the public for more than four months, and, so far as I know, not a single southern man has been converted by them. Are not Mr. Benton, Mr. Mason, Colonel Davis, and thousands of others, individually, as good judges, or as good witnesses, as he is? Since the speech, the people of New Mexico have prohibited slavery in their constitution, because they knew it to be possible among them. Before the speech, California did the same, and for the same reason. The Nashville convention has just resolved, “That California is peculiarly adapted for slave labor, and that if the tenure of slave property was by recognition of this kind secured in that part of the country south of 36° 30´, it would in a short time form one or more slaveholding states, to swell the number and power of those already in existence.” Even those who seek to apologize for Mr. Webster, avow, at the same time, their disbelief in his doctrine. Such is the evidence, on the one side and on the other, as to the possibility or impossibility of slavery in the territories. Mr. Webster is against the whole world, and the whole world is against him, and this, too, on a question already settled by history and experience. He is just as much to be believed, as a man who looks up into the clear midnight sky, and denies the existence of the heavenly host, while all the stars of the firmament are shining down into his eyes.
To increase the overwhelming proof against Mr. Webster, I add the following:--
HOUSE OF REPRESENTATIVES, June 1, 1850.
HON. S. R. THURSTON, Delegate from Oregon.
DEAR SIR; In a speech delivered by you, in the House of Representatives, in March last, I understood you to say that you had been in the valley of the Great Salt Lake, and that you were acquainted, from personal observation, with a large part of the territory of California. Will you be so good as to give me your opinion, and the reasons for entertaining it, of the probability or improbability of the introduction of slave labor into any part of the territory recently acquired by the United States from Mexico; provided such introduction be not prohibited by law.
I wish to obtain your opinion in regard to other kinds of labor, as well as agricultural; because, as it seems to me, a most unwarrantable, if not a most disingenuous attempt has been made, to lead the public to believe that no form of slave labor will ever be introduced there, because, possibly, or probably, it may not be introduced for agricultural purposes.
A reply at your earliest convenience will much oblige
Yours, very truly,
HORACE MANN.
WASHINGTON, June 10, 1850.
HON. HORACE MANN;
I received a note from you some days ago, making certain inquiries, but which, up to this time, I have been unable to answer. I desire to take no part in the question now dividing the country; but as you have asked my judgment upon a matter which appears to be a disputed point, I cannot, consistently with the law of courtesy, refuse you an answer. That answer will be in conformity with what I have frequently said, heretofore, in private conversation with gentlemen on this subject.
The point of inquiry seems to be, whether slave labor could be profitably employed in Oregon, California, Utah, and New Mexico. If the nature of the climate and resources of these countries are such as to furnish a profitable market for slave labor, it appears to be conceded, on all sides, that it would be introduced, if left free to seek profitable investment, like other capital. The whole point at issue, then, is dependent, as it is conceived, upon the determination of the first point of inquiry. Hence, to that point, only, it is necessary for me to confine my answer.
I need not remind you of the law regulating the investment of capital. It will always go where, under all circumstances, it will yield the greatest return to the owner. Upon this principle I am very clear, that slave labor, if unrestricted, could be employed in Oregon, with at least double the profit to the owner of the slave that it now yields in any state of the Union. I am uninformed as to the usual price of slave labor in the states, but the price paid to Indians in Oregon during the past year, for labor, has ranged from two to three dollars per day. Domestic negro servants, whether male or female, who understand the business of housework, would command, _readily_, five or six hundred dollars a year. I recollect well that there was a mulatto man on board the vessel in which I took passage from Oregon to San Francisco, who was paid _one hundred and eighty_ dollars per month for his services as cook. I will not stop to particularize further, in regard to the inducements Oregon would offer to unrestricted slave labor, but will simply add, that a very large number of slaves might now be employed in Oregon at annual wages sufficiently large to purchase their freedom. I think, therefore, that the point is settled so far as Oregon is concerned, and that slave labor, if it had been left free to seek profitable employment, would readily find its way to that territory.
As to California, I am equally clear. California will always be a mining country, and wages will range high. At present, slave labor in California would be more profitable than in Oregon. And I have always been of the opinion, that wherever there is a mining country, if not in a climate uncongenial to slave labor, that species of labor would be profitable. That it would be in the California mines, is evident. A good able-bodied slave would have commanded, in California, during the past year, from eight to ten hundred dollars per annum. When it is recollected that one hundred dollars per annum, upon an average, is considered a good compensation for their labor in the Southern States, it is idle, in my judgment, to contend that slaves would not be carried to the California market, if protected by law.
The greatest impediment which white labor has to encounter in the mines, is the intensity of the heat, and the prevalence of bilious disease. The one is almost insufferable, while the other is pestilential. Against both of these the negro is almost proof. Now, while white labor is so high, it is evident that no one can hire a white laborer, except at a rate that would consume his profit. Not so with negro labor. That species of labor might be obtained for half the amount which you would have to pay for white labor. The result would be a profit alike to the hirer and seller of slave labor. There is no doubt, in my judgment, that almost any number of slaves might be hired out in California, were the whites willing to allow it, at from eight to ten hundred dollars a year. This is pay so much above what their services command in the states, as to satisfy any one, that could this species of service be protected in California, it would rush to the Pacific in almost any quantity.
Let us next turn our attention to Utah and New Mexico. I have no doubt, from what knowledge I have of those countries, that they will turn out to be filled with the richest mines. I clip the following from a recent paper, containing the news from Texas and Chihuahua:--
“Mr. James was informed, by Major Neighbours and Mr. Lee Vining, that they had been shown by Major Stein, some gold washed out by his troops, on the Gila River, in a short excursion to that stream.
“It is reported, that, at the copper mines above El Paso, there are about one hundred tons of pure copper lying upon the ground. This had been got out by Mexicans, and abandoned when attacked by Indians.
“There are at El Paso, in the hands of different persons, several large amounts of silver ore, taken from the mines in that neighborhood. With guaranties of titles to lands, and protection from Indians, only a short time would elapse before all these mines would be well worked, and we would have large quantities of metal seeking a market through this place.”
And if you consult Fremont’s map, printed by order of the Senate in 1848, you will find, near the source of one of the branches of the Gila River, “copper and gold mines” laid down. And if I am not greatly mistaken, it will turn out that the Mormons are in possession of the richest kind of mines, east of the Sierra Nevada. It is known, too, that silver and copper mines have, for many years, been worked in New Mexico; and I am informed by Hugh N. Smith, Esq., that there are, in that territory, gold, silver, copper, lead, and zinc mines of the richest quality, and that the reason why they have not latterly been worked more extensively is, that it is prevented by the incursions of the Indians. He is of the opinion, and he is borne out by what history we can get on the subject, that when these mines shall come to be explored, their wealth will turn out to be enormous. When you have once cast your eye over the country lying west of the Rocky Mountains, and east of the Sierra Nevada, and are informed of the peculiarity of the gold bearing region, you at once become convinced that the United States is in possession of mineral wealth so vast, that ages will not be able to measure its extent. And when these mines shall begin to be developed, and their unquestionable richness known, population will set that way, attended with the usual consequences, high prices, and a demand for labor. If slave labor is like other capital, if it will go where it is best paid, then we have a right to say it will seek these mines, and become a part of the producing capital of the country where those mines are located. That these whole regions are filled with rich mines, is little less than certain, and that they can be profitably worked by slave labor is sure. Hence, were I a southern man, and my property invested in slaves, I should consider the markets of New Mexico, Utah, and California, for slave labor, worthy of an honorable contest to secure.
I am, sir, with due consideration, yours, truly,
SAMUEL R. THURSTON.
5. The Kennebec letter has another most extraordinary and discreditable passage. It is near the close. Mr. Webster quotes from a speech delivered by him in the Senate, March 23, 1848, says it was published in newspapers and circulated in pamphlet form, and that that speech contained the same doctrines in regard to the “legal construction and effect of the resolutions” for admitting Texas, as are contained in the speech of the 7th of March. He says nobody complained then, and he wonders that any body should complain now.
It is very remarkable that such a man as Mr. Webster should furnish, in the very quotation which he offers, the means of utterly confuting the assertion which he makes. I suppose this can be accounted for only on the ground, that he now occupies a position so antagonistic to that which he has abandoned that he can hardly refer to his former views without self-impeachment and self-conviction. Let passages from the two speeches be placed side by side, to show, not their identity, but their utter irreconcilability.
MARCH 23, 1848.
[_A passage quoted by himself._]
“It shall be _in the power_ of Congress hereafter to make _four_ other new states out of Texan territory.”
MARCH 7, 1850.
“I wish it to be distinctly understood, to-day, that, according to my view of the matter, this government _is solemnly pledged by law and contract_ to create new states out of Texas,” &c. (p. 42.)
The first quotation only asserts a “power” in Congress to create new states; the last affirms an obligation, “by law and contract,” to do so. How could Mr. Webster have expected that this broad distinction between _power_ and _duty_, between _option_ and _obligation_, could escape the attention of his readers?
But there is another discrepancy or contradiction still more remarkable:
MARCH 23, 1848.
“It shall be in the power of Congress hereafter to make _four_ other new states out of Texan territory.”
MARCH 7, 1850.
“----the guaranty is, that new states shall be made out of it, and that such states as are formed out of that portion of Texas lying south of 36° 30´, may come in as slave states to the number of _four_, in addition to the state then in existence.” (p. 29.)
The first speech speaks of the _power_ of Congress, but the last of the _obligation_ of Congress, to admit new states out of Texan territory. The first speaks of “four other new states;” but the last of the “guaranty” to admit “SLAVE states to the number of four.” Yet the first speech is cited, to men who can read and write, as identical “in legal construction and effect” with the last. The motto under which Danton attempted to carry himself through his bloody career, was: “_L’audace, l’audace, toujours l’audace_.” “Audacity, audacity, always audacity.”
But what else did Mr. Webster say, in his speech of the 23d of March, 1848? Referring to the debate which took place in December, 1845, on the final act for admitting Texas, Mr. Webster said: “And I added, that while I held, with as much faithfulness as any citizen of the country, to all the original arrangements and compromises of the constitution under which we live, I never could, and I never should, bring myself to be in favor of the admission of any states into the Union as slaveholding states.”[13] This is what Mr. Webster reports himself to have said when the final vote on the admission of Texas was immediately to be taken, and when he commenced his speech by saying, “I am quite aware, Mr. President, that the resolution will pass,”--meaning the resolution for the admission of Texas. Mr. Webster’s “never could and never should” covered the exact case of the then contemplated future slaveholding states to be formed out of Texas. While in the broadness of its terms it embraced all slaveholding states, whensoever, or whencesoever they might come, it had special and pointed application to any slave state to be thereafter formed out of Texan territory.
In the same speech of December 22, 1845, Mr. Webster spoke as follows:--
“It may be said that according to the provisions of the constitution, new states are to be admitted on the same footing as the old states. It may be so; but it does not follow at all from that provision that every territory or portion of country may at pleasure establish slavery, and then say we will become a portion of the Union; and will bring with us the principles which we may have thus adopted, and must be received on the same footing as the old states. It will always be a question whether the old states have not a right, (and I think they have the clearest right,) to require that the state coming into the Union should come in upon an equality; and, if the existence of slavery be an impediment to coming in on an equality, then the state proposing to come in should be required to remove that inequality by abolishing slavery, or take the alternative of being excluded.”
He also said, in the same speech, “I agree with the unanimous opinion of the legislature of Massachusetts.”
And what was this “unanimous opinion of the legislature of Massachusetts”? Among many other things equally decisive, the Massachusetts legislature, on the 26th of March, 1845,--and, of course, long after the annexation resolutions had been passed,--declared as follows:--
“And whereas the consent of the executive and legislative departments of the government of the United States has been given, by a resolution passed on the 27th of February last, to the adoption of preliminary measures to accomplish this nefarious project, [the admission of Texas, with the stipulation to admit four more states out of its territory;] therefore, be it
“_Resolved_, That Massachusetts hereby refuses to acknowledge the act of the government of the United States, authorizing the admission of Texas, as a legal act, in any way binding her from using her utmost exertions, in coöperation with other states, by every lawful and constitutional measure, to annul its conditions, and defeat its accomplishment.
“_Resolved_, That no territory hereafter applying to be admitted to the Union, as a state, should be admitted without a condition that domestic slavery should be utterly extinguished within its borders, and Massachusetts denies the validity of any compromise whatsoever, that may have been, or that may hereafter be, entered into by persons in the government of the Union, intended to preclude the future application of such a condition by the people, acting through their representatives in the Congress of the United States.”
Such were the opinions which Mr. Webster then openly expressed, and such the resolutions of the legislature of Massachusetts, which he fully indorsed. Yet he now professes to wonder that any body can see any difference between the doctrine of those speeches and resolutions, and those of his speech delivered on the 7th of March.[14]
6. A reference to a few other misstatements of facts will close my remarks on this subject.
Mr. Webster says that, previous to writing his Newburyport letter, he made “diligent inquiry,” of members of Congress from New England, to ascertain how many arrests of fugitive slaves had been made in their time; and he adds, “the result of all I can learn is this: No seizure of an alleged slave has ever been made in Maine.”
Now, two such cases have happened in the State of Maine. One took place in the eastern part of the state, about 1835 or ’36. The other happened at or near Thomaston, a little later. In this latter case, the fugitive came to Maine in a Thomaston vessel, whose master was afterwards demanded as a fugitive from justice. This demand gave rise to a prolonged correspondence, I think, with no less than three governors of Maine. This correspondence was extensively circulated through the newspapers, or referred to by them, and it would seem hardly possible that Mr. Webster should not have seen it. Since the Newburyport letter was published, this misstatement of fact has been noticed in the Maine newspapers, yet no retraction is made. The misstatement is allowed to be spread over the whole country, uncorrected by its author. Mr. Webster then adds, “No seizure of an alleged fugitive slave has ever been made in Vermont.” Tradition, and, as I believe, authentic history, contradict Mr. Webster here. It is said by “members of Congress” from Vermont, that an alleged fugitive was carried before Judge Harrington of Vermont, in 1807, and on his being asked what evidence would satisfy him that the person was a slave, he replied, “A bill of sale from Almighty God.”
But even if these statements of Mr. Webster, with regard to the New England States, were all true, it would avail him nothing; for, in the eye of patriotism, it matters not where such seizures are made. I refer to it only to show that Mr. Webster is not to be relied upon in these matters, either for the accuracy of his original positions, or for a retraction of them, when their error is pointed out by the public press. I wish not to be understood, _on this particular point_, as imputing to Mr. Webster an intentional misstatement; because he accompanied his original statement with a salvo. He confessed,--and he is entitled to the full benefit of the confession,--that his information might not be “entirely accurate,” though he supposed it not to be “materially erroneous.” It is “materially erroneous;” and though one error has been exposed in the Maine papers, he does not rectify it. Possibly he does not know it.
While holding Massachusetts up to reproach for “growing fervid on Pennsylvania wrongs,” Mr. Webster draws succor and encouragement from the Society of Friends, and especially from the Friends of Pennsylvania. He says that they remain “of sound and disposing minds and memories;” and he contrasts their wisdom and composure with the “vehement and empty declarations, the wild and fantastic conduct of both men and women which have so long disturbed and so much disgraced the commonwealth” of Massachusetts. He then adds, “I am misled by authority which ought not to mislead, if it be not true, that that great body, [of Friends,] approves the sentiments to which I gave utterance on the floor of the Senate.” I will now show that this alleged approval by the Friends, though worthy of any price but truth, was too dearly bought.
It is well known that the Friends are divided into two great denominations. Each has its periodical, one now in its eighth, the other in its fourth year. In the numbers published since the appearance of the Newburyport letter, both these periodicals do not “approve,” but repudiate and denounce the sentiments to which Mr. Webster gave utterance “on the floor of the Senate.”
The _Friend’s Intelligencer_ deals at length with Mr. Webster’s “sentiments” on the “Fugitive Slave Bill;” on the legislation of the north for the protection of its own citizens; on his pseudo discoveries in “physical geography;” and on the “legal construction and effect” of the Texas resolutions; and it condemns them all.
The _Friend’s Review_ dissents not less positively from Mr. Webster’s positions; and both call him severely to account for the defamation of themselves, which his letter implies.
On his “sentiments” respecting fugitive slaves, the “_Review_” observes that they have yet to learn “that that part of his speech was approved by any member or professor of the society.”
I wish I had space to quote from these able articles, but must forbear.
John G. Whittier, Esq., speaking for the Quakers of New England, gives “a peremptory denial” to Mr. Webster’s statement. I quote the following paragraph from him:--
“Now, we undertake to say that there is not a member of the Society of Friends, in free or slave states, who, whether acting as a magistrate or as citizen, could carry out the provisions of this most atrocious bill, without rendering himself liable to immediate expulsion from a society whose character would be disgraced, and whose discipline would be violated, by such action. It has been, in times past, the misfortune of the Society of Friends to be vilified, caricatured, and misrepresented; but we remember nothing, even in the old days of persecution, so hard to bear as the compliments of the Massachusetts senator. Whatever his ‘authority’ may have been, we do not hesitate to pronounce it unqualifiedly false to the last degree.”
Now what shall be thought of a cause that requires such a series of fabrications as Mr. Webster is here proved to have made, or of the man that can make it!
There are many other points presented by Mr. Webster’s speech of the 7th of March, or by what he has since said and written to defend it, which seem to me as unwarrantable in fact, and as reprehensible in principle, as any above enumerated. I shall close these notes, however, with one comment more; reserving others,--though sincerely hoping never to have occasion to use them.
Among the excoriations with which Mr. Webster amused himself and his southern new-born pro-slavery admirers, on the 7th of March last, he flayed nobody half so deeply or so complacently, as he did his old fellow-senators, Messrs. Dix, of New York, and Niles, of Connecticut. He scored them to the living flesh, and then soothed their smarting wounds by vitriol and caustic, as though he loved them. Their agency in the Texas swindle, he made odiously conspicuous. He taunted them with heart-piercing innuendo for their compulsory retirement from public life. And then he portrayed them as occupying their enforced vacation in attempting to rouse the people to save those regions from the curse of slavery, which, but for their sins, never would have been exposed to it. He worked up the scene so graphically, that every one mocked at their contemptible plight, and at the ridiculous contrast between the swiftness of their offence and the lameness of their expiation. The effect was dramatic. The pro-slavery part of the gallery and the floor responded with a shout of laughter. Yet devoted and long-tried friends of Mr. Webster were there, whom no darkness of blindness could prevent from seeing that his bitter sarcasm against the ex-senators, though calculated to make the “unskilful laugh,” must make the “judicious grieve.” They could not fail to see that he, Mr. Webster himself, at that very moment, was occupying precisely the same pro-slavery ground, which Messrs. Dix and Niles had occupied, when they brought in Texas and “reännexed” California and New Mexico. He was exerting all his great talents to do an act of precisely the same character which Messrs. Dix and Niles had done;--that is, to open new territory to slavery. And doubtless the first thought which arose in many a mind was the same melancholy one which spontaneously arose in my own, that should he succeed in arguing down, or laughing down the “_Wilmot_” as he twice scornfully called the great proviso of freedom; and should he then betake himself to penitence and prayer, and by years of effort, strive to stay back from slavery the regions he had doomed to it, he would only have elevated himself to the very “platform” on which Messrs. Dix and Niles stood _when he made them the objects of his taunts and ridicule_!
FOOTNOTES:
[12] The above criticism on Mr. Webster’s latinity aroused many self-supposed scholars, or at least fair proficients in the Latin grammar, to take up the pen in his defence. But unluckily, the quills they seized were plucked, not from the Roman eagle, but from the wings of some of those “unclean birds,” to which Mr. Webster had introduced them. Among the most conspicuous of these defenders of Mr. Webster’s ludicrous blunder, was Professor Felton, of Harvard College. If any person wishes to see one of the most neat, elegant, and at the same time thorough cases of _deplumation_, any where to be found in literary history, in which an individual who strutted on to the stage as a _peacock_, was soon obliged to leave it as a _daw_, he has only to read Dr. Beck’s articles in “The Literary World,” in which the fabricated quotation of Mr. Webster, and Professor Felton’s defence of it, are shown to be exceedingly bad as Latin, and much worse as logic.
[13] Cong. Globe, 1st session 30th Congress, p. 533.
[14] Professor Stuart, in a pamphlet entitled “Conscience and the Constitution,” pp. 78, 9, steps in to defend Mr. Webster’s position that we are bound, by contract with Texas, to admit from her territory, “slave states to the number of four;” and he incidentally refers to and combats my views on this subject.
I respectfully submit to the revered and learned professor a single consideration, which I trust will convince him that I am not in error.
For argument’s sake, admit the contract with Texas to be unimpeachable; although, if it be so, I see not why any one Congress may not absorb and exhaust all the power to admit new states, which the constitution contains, by making contracts for centuries to come, for all the new states that shall be admitted; and for all the applications for admission that shall be rejected. But, admitting the validity of the Texan contract, what does it purport? That “new states,” “not exceeding four,” “may be formed out of the territory thereof.” Those south of 36° 30´, may be slave; that, or those, north of 36° 30´, shall be free; the whole “not exceeding four.” Here, then, is an executory and mutual contract. It is executory; because it is not to be executed at the time of making, but _in futuro_. It is mutual, because, for the State of Texas, and for the one or more slave states, south of 36° 30´, there are to be one or more free states north of it.
Now, the principle is so clear that I think no one will for a moment dispute it, that when an executory and mutual contract is to be executed, say at four different times, each preceding act of execution must be such as to allow of the ultimate execution of the whole. Neither the first, second, nor third act of execution, must be so executed as to render the fourth impossible. Neither the first, second, nor third act, must be so executed in favor of either of the parties, as to render the execution of the fourth, in favor of the other party, impossible. But if Texas can have “_slave_ states to the number of _four_,” formed in succession out of her territory, then, as the whole number to be formed is not to exceed “four,” there can be _no_ free state formed, under the alleged contract.
It is not within my knowledge that such an interpretation of this supposed contract was ever suggested by any Texan citizen, or by any southern man. I suppose it to have been advanced, _first_, by a northern senator; and seconded, _first_, by a northern divine.
LETTER
ANSWERING AN INVITATION TO CELEBRATE THE ANNIVERSARY OF THE ORDINANCE OF 1787, AT CLEVELAND, OHIO.
WEST NEWTON, July 9, 1849.
GENTLEMEN;
I have received your kind invitation to be present at Cleveland, on the 13th inst., to celebrate the anniversary of the great “Ordinance” which excluded slavery forever from, and secured freedom forever to the North-western Territory. If I could tell you how deeply I sympathize with you in this movement, and how much my soul desires, not merely to celebrate, but to hallow the event, you would then believe me when I say, that I have had a sharp struggle not to forego all considerations of business and of health, for the purpose of joining in your festival. I regard the Ordinance which redeemed a territory of more than _two hundred and sixty thousand square miles_, from the unspeakable sin and curse of slavery, and consecrated it to freedom, as one of the grandest moral events in the annals of mankind.
Without that Ordinance, the Declaration of Independence itself, in its application to that vast and fertile region, would have been deprived of its power to confer blessing and prosperity upon it; and it is a fact never to be forgotten, that the original Declaration and the original Ordinance were both drawn up by the same great champion of human rights, whose hatred of slavery grew strong and deep by his personal knowledge of its wrongs and its calamities.
Without the Ordinance, the Revolution itself, in its application to that territory, and the treaty of 1783, by which its ample domain was secured to the Union, would have been shorn of their glory, and robbed of their value.
Without the Ordinance, the discovery of this Western continent, so far as that territory constitutes a part of it, would have given us no occasion to remember the name of Columbus with gratitude.
Without the Ordinance, it would have been better, at the creation of the world, that all that part of it which now constitutes your five beautiful and flourishing states, with a residuum of space large enough for still another, had been left as a “Dead Sea,” whose bitter and poisonous waters would not have allowed a live thing to swim beneath its surface, nor to fly above it, nor a green thing to grow by its shores.
And without the Ordinance, it is no irreverence to say, that even the omnipotent Spirit of God, working through natural laws, for human progress and human blessedness, would have met with bafflings and threatenings in its operations and influences for the redemption of the race.
Accept, gentlemen, the assurance of my sympathy and regard.
HORACE MANN.
Messrs. J. C. VAUGHAN, } Committee. THOMAS BROWN, }
LETTER
ACCEPTING THE NOMINATION OF THE FREE SOIL CONVENTION FOR REPRESENTATIVE TO THE THIRTY-SECOND CONGRESS.
WEST NEWTON, Oct. 24, 1850.
HON. C. F. ADAMS;
Dear Sir,--Your favor of the 21st inst., is this day received. It informs me that at a convention, (over which you had the honor to preside,) held at Dedham, on the 16th inst., I was unanimously nominated as a candidate for Representative to the thirty-second Congress of the United States. For the kind terms in which your communication is expressed, be pleased to accept my thanks.
This nomination places me in no new relation to the friends of freedom and humanity, wherever they may be found. I believe my name was first suggested to the voters of this district, (now nearly three years ago,) on the ground of my supposed devotion to the rights of men. The resolutions passed at all the conventions by which I have been nominated, and especially those passed so repeatedly and unanimously by our state legislature, have been in the nature of instructions; or, at least, of urgent advice and solicitation, in regard to my course on the great questions which have since agitated the country. My own convictions of duty so fully and entirely corresponding with the injunctions thus laid upon me, it has been easy for me to act in full conformity to the wishes of the great majority of my constituents and of the state, as those wishes have been repeatedly expressed. This renders any detailed exposition of expectations on your part, or of assurances on mine, unnecessary. I know that the leading and most valued article in your creed is the sacredness and security of human freedom. You know that I embrace this same article of faith with my whole heart. Other matters may be very important, but still are subordinate. Peculiar forms of organization are comparatively non-essentials. They are but means to ends; and, in regard to them, a large allowance is to be made for honest differences of opinion. But the natural right of every human being to the liberty which God has given him, until forfeited by crime of his own; the duty of our government to save every part of this earth over which it has jurisdiction from the direst of all earthly curses and the greatest of all social crimes,--the curse and the crime of slavery;--these are among the first of the dread accountabilities that attach to rational and immortal creatures.
I believe it also to be the duty of government to provide for the economical or pecuniary welfare of the people; to encourage industry by securing the rewards of labor to the laborer, and to discourage the competitions into which those who rule and control the impoverished, degraded, and almost brutified laborers of other countries, are striving to enter with our own people,--competitions, which, if not prevented, will, to a great extent, reduce our laborers to the wretchedness and privation of theirs. I believe that the money, and the comforts purchasable with it, which such competitions take from the workman here, do not go to improve the condition of the workman there, but are intercepted and appropriated by others. I make this statement of my views all the more readily, because I do not wish to receive an unintelligent vote from any man, and I therefore abjure all disguises and reserves. From my past votes and speeches in Congress my constituents know upon what principles and to what ends I have acted. To them I refer, and deem it unnecessary to say more.
Those who have taken the trouble to read what I have said on the floor of the House, must have seen that, though I have endeavored to express some stern truths, on vital subjects, in unambiguous language, yet that I have never uttered a word designed to inflict unnecessary pain upon our political brethren of the south; or to wound feelings which men may erroneously call honorable. I desire to pursue the same course at all times and with all men. The cause of liberty is one in which the true object of ambition is to make great principles most clear, and not to use harsh expressions respecting the conduct or opinion of others. It is as necessary that the man whom I would convince should be in a calm state of mind, as that I should be in such a state myself. Exasperation paralyzes judgment. The great points on which men and parties so vehemently differ, can only be permanently settled at the tribunal of reason and conscience.
Several laws were passed at the last session of Congress, on which I desired and designed to speak, in the name and on behalf of my constituents. But I was obliged to act upon them, under the silence enforced by the previous question. One of them, in particular, was so hostile to all the principles which history and reason had ever taught me, and so wounding to all the sentiments which I had ever imbibed from benevolence and religion, that I resolved to seize the first opportunity that should be offered to portray some of its features. I refer to the Fugitive Slave act, so called; and I trust this will not be deemed an unfitting occasion to lay bare a portion of its enormities. I will remark, that I had prepared an amendment for the security of our free colored seamen in southern ports, but was shut out from all chance of offering it. It struck me that if new and oppressive measures were to be taken to carry back alleged slaves to bondage, something should also be done to restore freemen to liberty. While the south were seeking new guaranties for men who claim to own other men, it was a time for the north to demand new guaranties for men who own themselves. But all debate was suppressed; property vanquished liberty; and a pure pro-slavery law was enacted, unadulterated by any alloy of freedom.
In regard to this Fugitive Slave act, is it not astonishing that men should ever ask the question, Does the constitution _demand_ the trial by jury? instead of the question, Will the constitution _allow_ it? The first is the tyrant’s question, granting no more than he is compelled to give. The last is the republican’s question, volunteering all that he can grant. In a free government, where the trial by jury is held to be the surest safeguard of personal liberty, the inquiry ought never to be, whether the constitution _secures or necessitates_ this form of trial; for it is enough, if the constitution will _permit_ or _tolerate_ it. Instead of seeking evasions, and close constructions, and hunting among the musty precedents of darker times, in order to shut out the jury trial in cases of personal liberty, the true lover of freedom would ask only for an interpretation that would _warrant_ it. It would not be among his last thoughts; he would not wait until a stern necessity forced such a construction upon him; but his first desire and effort would be to find some legitimate reason for conferring it. He would not ask, in how few cases he must, but in how many he might, admit it. Yet this matter has been discussed, and is still discussed, on one side, as though we were bound to avoid the jury trial if we could; not as though we were bound to grant it, if by fair interpretation we might. It has been discussed as though the jury trial, to protect a man’s right to himself, were an evil; and as though the sudden seizure, “summary” adjudication, and speedy consignment of a fellow-being to bondage, were too precious a blessing to be put in jeopardy, by submission to twelve good and lawful men. Not how much may we do for freedom, but how much can we do for slavery, has been the tacit assumption of the argument. But I pass by this for graver objections.
The Fugitive Slave act purports to confer judicial power upon persons who are not judges. It provides for the creation of scores and hundreds of officers called “commissioners,” and upon these, it is said on high authority, to confer _original_ and _final_ jurisdiction on questions of human liberty. The constitution declares in whom “the judicial power of the United States shall be vested.” It shall be vested in “one supreme court, and in such inferior courts as Congress may from time to time establish.” No commissioner, nor any number of commissioners, constitute one of these courts. “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” A commissioner can be made and unmade on any day. These judges are to “receive for their services a compensation, which shall not be diminished during their continuance in office.” The commissioners are compensated by chance fees, and not by a fixed salary. The President nominates and the Senate confirms judges of the supreme and inferior courts. Commissioners are only the “inferior officers” who may be appointed by “the courts of law.”
I need not enforce the position, that the power which this act purports to confer upon commissioners is _judicial_. It has all the attributes of judicial power. It is _original_, _final_, and _exclusive_. They are “to hear and _determine_.” The fourth section says they “shall have _concurrent_ jurisdiction with the judges of the circuit and district courts of the United States.” The attorney-general of the United States, in a written opinion, given by command of the President of the United States, says as follows: “These officers, [the commissioners,] and each of them, have _judicial_ power, and jurisdiction to hear, examine, and decide the case.” “The certificate to be granted to the owner is to be regarded as the act and judgment of a judicial tribunal having competent jurisdiction.” “Congress has constituted a tribunal with exclusive jurisdiction to determine summarily, and without appeal, who are fugitives from service.” “The judgment of the tribunal created by this act is conclusive upon all tribunals.” The power of a commissioner, therefore, is _judicial_ in the highest sense,--in the sense of the constitution. His decision cannot be reheard or reëxamined by any judge, or by any court, of any state, or of the United States. In no other case can a commissioner perform any judicial act, or issue any executive order, whose validity may not be reëxamined in the court for which he acts, or in some other. He cannot strike a blow, nor fine a dollar, nor punish by imprisonment for an hour. By appeal, by injunction, by mandamus or certiorari, the proceedings of inferior courts or magistrates can be reached, and their legality or constitutionality tested. But here a multitude of tribunals are established, over whose proceedings, not the supreme court of any state, no, not even the supreme court of the United States, has supervision. And what do these commissioners decide? That a man has no right to himself; that his body, limbs, faculties, are the _property_ of another; that he _owes service_. Suppose the question were, whether the respondent owed the claimant a dollar. Could the commissioner give judgment and issue execution for it? Certainly not. But yet he is here authorized to decide questions infinitely more important than any amount of money. He is to decide that a man owes life-long service from himself, and from all the children of his loins.
But the surrender of an alleged fugitive from service has been compared with the surrender of a fugitive from justice; and because the supreme executive of a state is required by the law of 1793 to surrender fugitives from justice, it is claimed that any commissioner may surrender fugitives from service, _without liability to question or reëxamination by any human authority_. But there is a world-wide difference between the cases. When the fugitive from justice is delivered up, he is delivered into the custody of the law. Legal process must have been commenced against him in the state from which he fled. He is returned, that the proceedings thus commenced may be consummated. He is never intrusted to private hands. The shield of the law is continued over him. After arrest, he is merely transferred from the hands of the law in one state to the hands of the law in another state. He is transferred, not to evade trial, but to have one. But the alleged slave is delivered up, not into the custody of the law, where his rights might be adjudicated upon, but into private hands; not into the hands of a neutral or indifferent person, but into the hands of a party interested to deprive him of all his rights;--if he be not a slave, then into the hands of a man-stealer. Mr. Clay saw this, and his plan provided that the alleged fugitive should be sent home _to be tried_. But the south grew bolder and bolder, until a law was passed, by which one class of men have less security for their freedom than another class have for their cattle.
It is nugatory to say, that when an alleged fugitive has reached his claimant’s domicile, he may there petition for freedom. Should he do so, it would be an independent and original proceeding, instituted under _another_ government. Not only would the jurisdiction be different, but the character of the litigants would be changed,--plaintiff for defendant, and defendant for plaintiff. The old case is not to be reheard, but a new one tried. Indeed, a very intelligent writer on this subject has queried whether the certificate of the commissioner may not be pleaded as an estoppel. I say, then, that, in effect, the commissioner, by this act, has _original_, _final_, and _exclusive_ jurisdiction of a “case” “in law,” “arising under the constitution and laws of the United States.” This is the very function of judges and courts. This is the identical power which the constitution of the United States vests in judges who are to be nominated by the President, confirmed by the Senate, to hold office during good behavior, and to be compensated by fixed salaries.
Again, the act consigns a man to bondage, without crime, on evidence which he has had no opportunity to controvert. The claimant must prove three facts before the commissioner,--1st, That the person named in the warrant owes the claimant service; 2d, That he has escaped; 3d, Identity.
Now, according to the act, the first two points,--the facts of owing service and of escaping,--may be proved behind the respondent’s back. This proof may be procured against the alleged fugitive without any notice to him, actual or constructive; without the possibility of his encountering it, or disproving it, however false it may be. If this be not depriving a person of his “liberty” “without due process of law,” what can be? Why not make the whole case provable behind the man’s back,--in another state,--a thousand miles off,--and spurn the forms of justice, after having spurned its substance? This binding of a man by evidence obtained without his knowledge, is unknown to the common law, and abhorrent to it. It is never permitted, not even to deprive the worst man of the humblest right. Our laws save the rights of all parties under disability. Who is under so great a disability as he who knows nothing, and can know nothing, of what is going on against him? Notwithstanding the constitution declares that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” yet it has been held that a judgment obtained in another state, without notice, shall not prejudice the party against whom it was rendered. Such an act violates the first principles of justice. All securities for the life, liberty and property of us all, are swept away if such principles can be established.
Once more: The act says the 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 any other person whomsoever.” According to this, the certificate is a talisman which protects its holder against all law, all evidence, and all judicial power. A kidnapper may seize a free man in Boston, buy evidence that he owes this mysterious _debt of service_, obtain the requisite certificate against his victim, and then neither the mother who bore him, nor the elder brothers and sisters who grew up with him, nor the neighbors who have known him from his cradle, nor the minister who baptized him, can testify that he is free; nor can all the judges and courts in the commonwealth stop the man who is bearing away one of their fellow-citizens to a bondage worse than death, to inquire into his title. He is in a charmed circle that neither law nor justice can enter. Do you ask where is that old, time-honored writ of _habeas corpus_, for which martyrs have died and rivers of blood have flowed, and which the constitution declares SHALL NOT be suspended “unless when in cases of rebellion or invasion, the public safety may require it”? The answer is, that the writ of _habeas corpus_ is nothing but a “process issued” by a court, and the act declares that the holder of the certificate shall be exempt from all “molestation,” “by any process issued by any court.” In one word, the law contains a provision that its own constitutionality shall not be brought into question; at least, until its victim reaches the place of his bondage, and is beyond the reach of rescuing hands.
Now, even if this act does not commit such gross infractions of the constitution that the courts will set it aside, yet it would seem as though no sane man could help seeing that it wars upon all our ideas of justice; that it repudiates and scorns all the great securities for freedom which wise and good men, for centuries past, have given their labors, and their lives, to establish; and that it converts the vast machinery of the social state, not into the means of protecting, but of assailing, the liberties of the citizen. As to the appointment of commissioners, it gives us none of the constitutional securities that improper men will not be invested with these high prerogatives against our dearest rights; and as to the manner in which evidence may be procured, it resembles the missives which the inquisition, in olden times, sent forth against heretics, to seize without law, to try without defence, and to punish without mercy or hope. It resembles the _lettres de cachet_, which, before the great revolution, the despots of France gave, _in blank_, to villain courtiers, and villain courtesans, to be filled up with the names of those persons whose perdition they would compass.
There are other points in this bill whose enormity only needs to be stated to be seen and abhorred. One of them is so unspeakably mean and contemptible, that all northern men must feel the insult more keenly than the wrong. It provides that if a commissioner will doom a man to bondage, his fee shall be twice as much as though he restores him to liberty. Now, every body knows that claimants will rarely, if ever, appear before commissioners without a _prima facie_ case. If there be no defence, the proceedings will be brief. But a case of discharge presupposes a defence and a trial. A case of discharge, therefore, will probably occupy as much time as half a dozen cases of surrender. Yet for this greater labor, the commissioner is to have but half price. In assailing all we love of liberty, could not the framers and supporters of this measure have forborne to wound us in all we feel of honor!
The cases are to be “heard and determined,” as they were under Robespierre, “_in a summary manner_.” Shakspeareenumerates the “law’s delay” among the causes of suicide. Under this act, real suicides will doubtless be occasioned by the _law’s despatch_.[15] This “summary manner” contains the sum of wrong. Does not every lawyer and every client know that when an action is brought for the unfaithful execution of a contract, in building a house or a ship, or for the balance of an account, or for flowing lands, or for defamation or libel, the defendant needs weeks and often months to make ready for his defence. His witnesses may be in another state, or abroad; it may be necessary to examine ancient titles in registries of deeds or of wills, to make surveys of premises, or investigations into character and conduct. It often happens that when process is first served upon a man, he does not know the grounds of his own defence. They may consist of facts which he has forgotten, or of law of which he is ignorant. Our courts, acting upon this well-known truth, have established a rule that a party, even after he has had fourteen days’ notice, shall be entitled to a continuance as a matter of right, unless under special circumstances; and he may always have it on cause shown. I ask any defendant who was ever forced into court to resist a claim of any magnitude or difficulty, whether he was ready to do so, on the instant when process was served upon him? Yet this is what the respondent must do under the Fugitive Slave act. On the 26th day of last September, James Hamlet was peacefully pursuing a lawful occupation in Water Street, New York, and earning an honest support for his wife and children. In three hours, hand-cuffed, in irons, and surrounded by armed men, he was on his way to the house of bondage. No time was given him for procuring the aid of counsel. He declared he was free, that his mother was a free woman, and he a free man. But by another provision in the act, it is declared that “in no trial or hearing under this act, shall the testimony of such alleged fugitive be admitted in evidence.” In all other cases, within the broad compass of the common or statute law of Great Britain or of this country, a party litigant may give evidence pertaining to the suit. In some cases, he may give evidence on the merits; in all cases, he may make affidavit on interlocutory matters. A man who has been in the state prison, a felon scarred with crime, may still make affidavit, in his own case, under certain circumstances, though he can testify neither for nor against any other person. But an alleged fugitive can make oath to no fact, and under no circumstances, for delay or other cause. It would conflict with that “summary manner” in which it is deemed expedient to dispose of human liberty.
Look at this provision under the light of a few facts. In the case of _Mahoney_ vs. _Ashton_, (4 Harris & McHenry’s Maryland Reports,) the petitioner for freedom claimed that a maternal ancestor, _four generations back_, who had been brought over by Lord Baltimore, in the early days of the colony, was free; and, by an extraordinary chain of evidence, he traced his descent from that free source. It was a claim which any court in Massachusetts would have sustained without hesitation.
Now how much evidence of history, of record, of parol, does the bare mention of such a case suggest? Who could have been prepared to try it in three hours; ay, as soon as he could be seized and hurried to a lawyer’s office?
Among the alleged fugitives in the “Pearl cases,” so called, which I assisted in trying in Washington, in the years 1848 and ’49, was the family of Daniel Bell, consisting of his wife and eight or ten children. The mother and children had been freed many years before by deed of manumission, executed by their master in his last sickness, and they had been reputed free ever afterwards. Soon after the grantor’s death, the device was started of proving him to be of “unsound mind,” and thus reclaiming the family to bondage. But the magistrate who prepared the deed, witnessed its execution, and took the acknowledgment, declared that he stood ready to testify to the _competency_ of the grantor, and the validity of the instrument. Years passed away and _he_ died. Immediately the heirs claimed the family as slaves; and, after the loss of the deceased magistrate’s testimony, proved the grantor of “unsound mind,” and so set aside the deed and were adjudged owners of the _chattels_. On the ground of newly-discovered evidence, application for a new trial was made; but the family becoming alarmed lest they should be secretly seized and sent to the south, attempted to make their escape on board the “Pearl,” on the night of the 15th of April. Now, suppose that they had succeeded, and that, after arriving in a free state, they had been seized and carried before a commissioner, to be tried in this “summary manner,” without even waiting for a crier to open the court, and debarred from making affidavit that, in the city of Washington, there existed evidence of their freedom. I will not waste words to point out the impossibility of their defence, and the certainty of their doom! He that hath ears to hear the cry of the oppressed, let him hear!
A few days before the close of the last session of Congress, I was inquired of by a resident in Washington, as to the condition of a family held as slaves in that city. I found they were free by the laws of the District, but they did not know it.
Sir, throughout the Southern States, there are thousands and thousands of reputed slaves, who, legally, and by the laws of those states, too, in which they are held, are as free as the governor of Massachusetts, or the chief justice; but, in their enforced and brutish ignorance, the victims do not know it; and should they come to a free state, and be there hunted, and seized, and carried before a commissioner, they would be debarred from taking an oath as to facts which would furnish grounds for a continuance so that their right to freedom might be established. But, under such obstructions and embarrassments, liberty could not be extinguished in a sufficiently “summary manner.”
According to the constitution of the United States, all _criminals_, from the least to the greatest, are to be informed of the nature and cause of their accusation; to be confronted with the witnesses against them; to have compulsory process for obtaining witnesses in their favor; and to have the assistance of counsel in their defence. Yet here, always in the case of an _innocent_ man, oftentimes in the case of a free man, there is to be no previous notice, no process for obtaining witnesses, and no provision for counsel; and while the court is forbidden to allow delay, without good cause shown, the party whose liberty is at stake cannot make out that cause by his oath; but, with the full knowledge in his own breast that he _is_ free, he must stand dumb before the minister of the law that puts on his fetters.
I will not dwell at any length upon those portions of the act which affect marshals and deputy marshals. If any man chooses not to hold office under such a law, he can decline to accept it, or resign it. It is, however, clear proof of wicked legislation, when humane and conscientious men cannot hold the offices it creates. But the fifth section contains a provision which is atrocious. It makes the marshal or his deputy liable for an escape, whether made “with or _without_ his assent,”--that is, _at all events_. Though the alleged fugitive should disable him, though the enemies of the country should capture him, though the act of God should strike him down, though an armed mob should commit a rescue,--yet he is still liable.
All civilized governments have statutes of limitations. Human welfare requires that claims which have long been voluntarily acquiesced in, should not be revived. Hence our laws bar a right of action, otherwise incontrovertible, after that tacit abandonment of which the mere lapse of time is proof. Personal rights are most generally abandoned by a six years’ neglect to enforce them. Even real estate may be held, by twenty years’ quiet possession, without other title. Crimes partake of this exemption. With the single exception of murder, all crimes are barred in Massachusetts by a six years’ delay to prosecute. But the Fugitive Slave act knows no mercy or compassion of this kind. Unrelentingly it fastens its clutch upon all cases. While life lasts, its fangs strike into the flesh. The alleged slave may have been amongst us for fifty years; he may have earned property, be married, and surrounded by children. It is all the same. The inexorable certificate of a commissioner remands him to bondage and despair.
The act not only remands him to bondage, but, under circumstances to which there will be few exceptions, it orders that he be sent home at the public expense. The constitution says, he shall be “delivered up.” There the obligation of that instrument ceases. It is only the law that adds, he shall be _carried back_. You and I, sir, must help pay the costs of sending a fellow-being into bondage; when we are under no more constitutional obligation to do so, than to pay the expenses of a slave dealer who ships his cargoes direct from Africa.
But the bill has become a law, and the practical question now is, how can the country be exculpated from the crime, and the dishonor. For myself, I do not adopt the doctrine of forcible nullification. I trust I shall never join a mob to resist a law, until I am ready for revolution. The only true and enduring remedy is repeal. Those who would forcibly resist the law, lose half their motive and impulse for repeal; for if we abolish it without repealing it, it will be likely to remain upon the statute book an eternal monument of the nation’s disgrace. Let effort never cease, until the jury trial be obtained.
But this view of civil duty applies only to the _citizen_. It does not touch the fugitive. One liberty the slave always has,--whenever he deems it expedient, he may re-clothe himself in the rights which God and nature gave him, and which, though they may be ravished from him, can never be destroyed.
Until repeal, however, there is one opening for hope. If, as is said by Mr. Crittenden, in the opinion already cited, “Congress has constituted a tribunal with _exclusive_ jurisdiction, to determine summarily, and without appeal;” and if, as he further says, “the judgment of every tribunal of exclusive jurisdiction, where no appeal lies, is of necessity _conclusive upon every other tribunal_, AND THEREFORE THE JUDGMENT OF THE TRIBUNAL CREATED BY THIS ACT IS CONCLUSIVE UPON ALL TRIBUNALS;” then the whole case in all its bearings and relations, its sources and its issues, comes before the commissioner; not even the supreme court of the United States can interfere with him; and the first question for him to “hear and determine” is, whether in truth there be any such _law_, whether the whole disgraceful enactment be not unconstitutional and void; and, therefore, whether his first and only duty be not to dismiss the proceedings, and to “let the captive go free.” I am not without hope that such will be the result; and thus, that many conscientious and law-abiding men will be relieved from the moral anxiety and conflict which now oppresses their minds.
Very truly, your obedient servant,
HORACE MANN.
FOOTNOTES:
[15] Since writing the above, I see that a man in New Jersey was so overcome with fright at the rumor that slave-catchers were in town, that paralysis and death speedily ensued.
SPEECH
DELIVERED AT DEDHAM, NOVEMBER 6, 1850, BY SPECIAL REQUEST OF A CONVENTION OF WHIG VOTERS OF THE EIGHTH CONGRESSIONAL DISTRICT.
GENTLEMEN AND FELLOW-CITIZENS;
Having been specially invited to appear before this meeting, and address it, my friend Mr. Russell has introduced me to you with many kind words; and he has emphatically announced me as “your old friend.” By so doing, gentlemen, he has touched a living chord in my heart; for, as I look around me, I see many familiar and dear faces, and am reminded that, in this town, I spent some of the happiest years of my life. The sight of every object around me awakens remembrances of home. Right opposite to us is the court house, in whose forum my feeble voice was first raised, and where, I thank God, it was never raised in behalf of the oppressor, nor on the side of any cause which I believed to be wrong. Around this church in which we are assembled are the streets where I used to walk, there is the pew where I used to sit, and all around me are persons whom, for years, I saw daily and knew intimately, and knew them only to respect. I feel assured that I do meet “old friends,”--true men, who carry their hearts in their hands, and whose lives are anchored to their convictions of duty.
Gentlemen, it is not without embarrassment that I address you. Yet I might plead a high example for my course, if I were worthy, in any respect, to mention myself in connection with my venerated predecessor, who has made the past history of his country so luminous with his wisdom and purity, and the name of this district which he represented so honored and memorable. Would to God I could carry you to some Pisgah height, and show you, under one view, the past, the present, and the future, as he was wont to do, when, as was his custom, he used to address you on those great topics which employed his energies,--on the principles by which you ought to be guided, and on the dangers to which you were exposed.
We have fallen, gentleman, on momentous times. Great events have occurred, in rapid succession, both in this and in the other hemisphere. There seems to have been a grand upheaving of the elements of society from its deep foundations. We have been so often astonished and amazed, by shock after shock, and convulsion after convulsion, that I fear we are beginning to lose our moral sensibility to political catastrophes, however grand or fatal they may be.
You know there is a spot near the Mississippi River famous for the frequency of its earthquakes. A gentleman who visited there some years ago, told me that soon after entering a hotel, at a place called New Madrid, his attention was suddenly arrested by the rattling of the crockery, the jarring of the household furniture, and the shaking of the chair in which he sat. Starting up in trepidation, he sprang for the door. “O,” said his landlord, “don’t be alarmed. _It is nothing but an earthquake._” These phenomena, it seems, had become so common as to have lost their power of exciting alarm. So, I fear, it is in regard to the late commotions in Europe; and especially in regard to some of the marvellous doings of Congress in our own country. From their astounding character, and their rapid succession, I fear we are becoming insensible to their importance, like the inhabitants who dwell at the base of Mount Etna, whom neither the rumbling of the mountain, nor the lava rivers which pour down its side, can awake from their stupor, until, like Pompeii or Herculaneum, they are buried in the ruins.
In the old world, things seem already to be settling back into their former condition, and hopes are darkening into fears. In this country, I still trust that we shall redeem something of the past, and secure the future. Yet the events of the last few months are of a disheartening character, if any thing could ever dishearten a true lover of his country. It has been my fortune and duty to be in the midst of these events. I have watched the tide of battle with sleepless eye; and when Liberty at last was stricken down, my heart bled with hers.
I believe I understand, gentlemen, what you wish me to do on this occasion; and therefore I shall endeavor to lay before you, briefly but impartially, the humble part which I, as your representative, have taken in those events which have filled the hearts of good men with alarm.
I would, however, premise a few words, in order to show how we have come, step by step, to the fearful position we now occupy.
Very early in our history, as a republic established to maintain the rights of man, an extent of territory was acquired equal to all we possessed before; and this addition accrued to the special advantage of those who maintain, as the first great article in their creed, the wrongs of man. The same European wars which enabled Mr. Jefferson’s administration to purchase Louisiana with fifteen millions of dollars,--a sum mostly paid by the north,--brought the commercial interests of the north also within the destructive sweep of those contests, and the non-intercourse act and the embargo were the consequence. These came upon New England at a time when commerce was her only resource. They brought as great a calamity upon the New England states as it would now be to the south if their whole cotton crop, or to the west if their whole grain crop, were to fail for a series of years. They palsied our industry; and, without industry, men, any where out of Paradise, will be poor. Upon the back of this calamity came the war of 1812, which we bore as well as we could, and performed our full share in carrying the country through it, though it cut off our very means of living. That war revealed a lamentable condition of things. It revealed the fact that, notwithstanding our political independence, we were, in a commercial sense, most deplorably dependent. It pointed to a new policy. It put the country upon achieving its second independence,--its independence, at least for the necessaries of life, of foreign mechanics, manufacturers, and artisans, as it had already achieved its political independence of foreign kings, aristocracies, and ecclesiastics. It gave birth to the American system, in which Calhoun, Lowndes, Cheves, and Clay,--all from the slave states,--took the lead. I mention the first three names, particularly, because they were from the state of South Carolina. So heartily did they enter into the new policy that they took their seats in Congress clad in homespun. They said they would exemplify their principles by their garments, and wear them outside as well as inside of their bodies. I am sorry their principles lasted but little longer than their clothes,--one suit worn out, and all, both without and within, clean gone. Even Mr. Madison boasted that his coat was woven in an American loom. The south led off in this policy, and New England, whose capital had been wrecked on the ocean, was reluctantly compelled to follow their lead. This was the origin of the protective tariff, the child of South Carolina, though, at a later period, adopted by Massachusetts. It was not, however, until 1824, that New England, and Massachusetts particularly, gave in her adhesion to the protective policy. Then our people engaged in manufactures. The streams were dammed, and the mighty powers of nature were set to spinning and weaving, to dyeing and printing, under the guidance of that genius which had been kindled and nurtured in our schoolhouses. Those establishments were founded which have produced so marvellous a change in our household condition, surrounding all with so many comforts, and filling our dwellings with so vast a variety of the refinements and luxuries of life. Those of you who have arrived at my age, and are therefore acquainted with the condition of things throughout our country towns thirty years ago, know that the change is almost magical. Though opposed in its inception by the cities and the merchants, yet it has promoted their prosperity not less than that of the people.
In the year 1820, a national question of a great moral character arose. The south, whose policy had before secured a territory as large as that of the original thirteen, sought to extend slavery over its whole surface. Missouri applied to be admitted into the Union as a slave state. The morality and religion of the north thought the time had come to arrest the strides of slavery, and they opposed the application. Earnest resistance was made. The battle was obstinately fought; but at last, the north, or rather enough recreants of the north yielded, and the day was lost. The south bought or bullied a sufficient number of the invertebrate creatures whom we send to Congress, and triumphed over us. This was the first great surrender of principle on the part of the north, and a fatal surrender it was. We, and humanity, and all that is dearest to the heart and thoughts of man, might have achieved the victory but for a few cases of foul treachery to the cause of freedom. O, that the retributions for that treason had been so terrible, that the coward motive of fear, if not the angel impulse of humanity, might have deterred all men in after times from ever daring to repeat it.
The next great struggle was in 1833, when nullification first reared its hideous head. At that epoch, the south, and especially South Carolina, observing that our capital had been too deeply invested in manufactures to be withdrawn, changed their policy, and sought to reap a double harvest,--both of the manufacturing system they had introduced, and of the free trade system they had abandoned. She therefore set about to strangle that offspring of protection to which she had given birth. Even in Virginia, Mr. Madison’s coat had become an unconstitutional coat, and the idea of American woollens so wrought upon Mr. John Randolph’s gentle affections, that he said he would go a mile out of his way to kick a sheep. The South Carolina resistance was beginning to assume a military form. Then occurred a most admirable opportunity to test the strength of our government,--to learn and know whether the pillars of this Union are made of granite or of pipe-stems. We had a clear case of right. In the chair of state was a man of Roman will, who would have rejoiced in the opportunity to _see that the republic received no detriment._ He contemned the nonsense as much as he despised the fraud, of the cry that the Union was in danger. If it was in any danger, he would have saved it in such a way that it would not need saving again every twelvemonth. But the chance was lost. A compromise was brought forward, by which South Carolina consented to a sort of armed truce, on her part, provided the tariff, though not given up, should be tapered down almost to nothing. Though, on many accounts, I have a high respect for the author of that compromise, yet I regard it as the most unfortunate act ever done,--the most fatal precedent ever set by this government. It taught the south the efficacy of clamoring; it taught them that there are cases where a Bombastes Furioso is as powerful as a Julius Cæsar; and it taught them also, notwithstanding all appearances of solidity and firmness, of what a delicate nervous tissue a money-bag consists.
When that compromise law had had time to reach its legitimate issues, you all know the result. A whirlwind of bankruptcy swept over the land. Its ravages reached even the humblest portions of society. The laborer suffered even more than the capitalist. The latter suffered in his gains, but the former in his bread. All classes perceived the cause; and they rallied, almost as one man, to that tremendous effort to change the policy of the country, which resulted in the election to the presidency of General Harrison. Though, but a few days after his inauguration, the reins of government fell from his lifeless hands, yet the tariff of 1842 was the consequence of his election. This restored the drooping fortunes of New England. Then it was, while we were immersed in our business and our money making, that southern politicians addressed themselves to that great scheme of pro-slavery aggrandizement,--the annexation of Texas. You are all familiar with the details of this transaction, and it is painful to revert to them. The kid was seethed in its mother’s milk. Northern Democrats cast the votes which gave Texas to the south, and destroyed our own prosperity. Texas was admitted just in season to repeal, by her votes in the Senate, the tariff of 1842, by that of 1846. This again put in jeopardy all our means embarked in manufactures. Would to Heaven that nothing more dear than pecuniary interests had been sacrificed by that measure.
I do not blame the south for seeking an equilibrium with the north; but they do not seek the true equilibrium. If they would sustain themselves in a competition with us in economical affairs, they must encourage labor and render it honorable. They must, all of them, labor as we do, in one way or another, with the hand or with the head; or,--which is the only true way,--with both together. They must build schoolhouses to develop the minds of their children, and churches to cultivate their morals. If they would only do this, and not attempt to carry every thing by slave-begotten votes, and by adding new states to beget more slave votes, they would soon surpass us; for nature has done vastly more for them, in soil and climate and in all the means of earthly prosperity, than for us. A superiority obtained in this way, we, as lovers of human happiness, should not repine at, but rejoice in.
The next struggle in which they engaged for political aggrandizement, was the Mexican war. It could, indeed, hardly be called a struggle,--the north so readily and ignominiously yielded. They wanted more territory. Texas, already gravid with future slave states, was not sufficient. And though it was yet somewhat uncertain whether Congress would not interdict the extension of slavery over that country, even should they conquer it; still, as they had always triumphed in their contests with us, they assumed the risk, and trusted to their future prowess and skill to monopolize the plunder. The territory was conquered; and then, perhaps, the most important question arose which has ever come before this country since the Declaration of Independence. The most momentous consequences were suspended on the decision of this question. We had, as it were, a creative power put into our hands. We had the shaping of the destinies of half a continent intrusted to our keeping. Our authority once exercised, the act would be irrevocable, and the doom of all that region would be fixed, as by a decree of Omnipotence. When God gives to the world a generation of children, and they are ruined through parental neglect, he gives another generation, that another trial may be made. But if we once admit slavery into those immense regions, comprising all the unsettled residue of this continent, God will give us no new continent on which the error may be retrieved.
Now, on this great question, what has been done? I grieve to say that I fear the battle has been lost. If not lost, nothing can save it but a vigor and an energy on the part of the north, such as they have not lately put forth. So far as legislation is concerned, the whole battle field is in possession of the enemy. Let me read a passage from one of the acts of the last session of Congress, which settles this fact. By the law for creating the territorial government of New Mexico, it is expressly provided,--
“That when admitted as a state, the said territory, or any portion of the same, shall be received into the Union, WITH OR WITHOUT SLAVERY, as their constitution may prescribe at the time of their admission.”
The act providing a territorial government for Utah contains a provision precisely similar. In regard to Texas, we have gratuitously given her a right to form one more slave state than she was authorized to do by the resolution of annexation. By the third article of the second section of that resolution, Texas was authorized to form new states, not exceeding _four_, of which those south of 36° 30´ should be admitted, with or without slavery, as their people should elect, while in the state or _states_, (and there must, therefore, be at least one,) which should be formed north of 36° 30´, there should be no slavery or involuntary servitude except for crime. But by the act of the last session, for establishing the boundary of Texas, though the United States buys up the claim of Texas to all the territory north of 36° 30´, yet it authorizes Texas to form as many slave states out of the residue of her territory, as she could have formed by the resolution of annexation, both of slave and free. This is manifest, by the following provision:--
“Provided, that nothing herein contained shall be construed to impair or qualify any thing contained in the third article of the second section of the joint resolution for annexing Texas to the United States, approved March 1, 1845, _either as regards the number of states that may hereafter be formed out of the State of Texas, or otherwise_.”
Here, then, instead of three states, four are provided for, with full consent that they shall all be slave states. Now, I ask, if this gift of a slave state is a trifle to be thrown in like the value of a small coin in the settlement of an account? In some of the pro-slavery papers of the north, which have professed to publish this act for the information of their readers, I have observed that this clause has been left out! They did not dare to trust their readers during the present political campaign with a knowledge of it.
I know it is said, by here and there an individual, that slavery cannot go into those territories. But it is to be remembered that all the south, almost as one man, dissent from this proposition. They say it can and shall; and is not their opinion, on such a subject, of greater weight than that of any northern man? They threaten to dissolve the Union if slavery be prohibited from going there. Are they such lunatics as to dissolve the Union, because we assume to prohibit what nature has already made impossible? Slave states border on those territories, and should there be any rush of emigration towards them, as, by the discovery of mines or other causes there may be, a cloud of slaves would immediately overspread them. If it be said that the local law of the territories prohibits slavery, I reply, so it did in Texas. Slavery had been abolished throughout Mexico, of which Texas was a province. But though slavery was no longer legal there, peonage was. Hence the southern planters, at least some of them, when about to remove to Texas, indented their own slaves to themselves, as peons, so that they might hold them by the Mexican law of peonage, until they should become strong enough to pass a law for slavery. It will be no more difficult to introduce slavery into New Mexico and Utah than it was into Texas.
I will not now go back to the questions which agitated the country and the Whig party at the time when General Taylor was nominated for the presidency. Whatever I may have thought of him, and of the propriety of nominating him, it is but justice to say that I now believe that he was a true man, and an anti-slavery man. He intended honestly to carry out the will of Congress, and execute the laws of his country, regardless of slaveholding dictation. He would have crushed the first movement for disunion; or rather, a knowledge of what he would do, would have prevented any such movement. With his own lips, in his own house, he told me that in case any state should attempt to nullify an act of Congress, he should immediately order a naval force to blockade its coast; he would allow nothing to pass into, or to come out of, the rebellious state; and in six months, said he, it would give up its resistance without the shedding of blood. It was President Taylor’s plan, as you well know, to leave the adjustment of the slavery question to the territories themselves; not that he was not prepared to have it settled by Congress, and a prohibition imposed, but because he saw that while a prohibitory act might be passed by the House, it would certainly be rejected by the Senate. He therefore threw himself forward to what he knew the condition of things must be, after all the ineffectual attempts at legislation on the subject had been made; and he adopted that future condition and result of things as his present plan of action. Should the northern members of the House prove true to their constituencies and their pledges, they would never allow the territories to be organized without the proviso; and the fear of such a prohibition would exclude slavery from the territories, as certainly as the prohibition itself. Slaveholders would not venture to carry slaves into a country, where, at any moment an act of Congress might emancipate them. And if slavery could only be kept out of the territories while they remained territories, it would, of course, be prohibited by the state itself, when the condition of territorial pupilage should be succeeded by that of state independence. A boy trained up to virtuous resolves until the day he is twenty-one, will not adopt all the vices the day after.
The recent act has given Texas more than fifty thousand square miles of free New Mexican territory, and the promise of ten millions of dollars in fourteen years, with interest at five per cent. up to that time; which, at compound interest, makes a prospective grant of twenty millions of dollars. This is done on pretence of discharging debts which she owed at the time of her annexation. But those debts, at the highest estimate, do not exceed seven millions, so that a clear gratuity is left to her of at least three millions in addition to the grant of another slave state. The interest of these three millions will support her government, and keep her supplied with the means of fighting the battles of slavery.
There is something most extraordinary in the claim of Texas to the territory for which she has obtained so extravagant a price. Her title was not by conquest, nor by purchase, but by an act of her own legislature. She claimed the territory merely because she had extended her legislation over it, when she had no more right to legislate for it than for Canada. I have brought with me for your inspection, if any of you desire to see them, a series of maps which illustrate the growth of Texas. By Humboldt’s map, of 1804, Texas contained 71,752 square miles. By Tanner’s map, of 1826, it contained 108,097 square miles. By Austin’s map, of 1839, it had grown to 179,567 square miles. The late claim of its legislature was the enormous quantity of 325,000 square miles, which the act of Congress cuts down only to 237,321! By its own legislative assumptions it grew from 70,000 to 325,000 square miles. By good husbandry, in this part of the country, we are able to make greater crops grow on the same land, but in Texas they make the land itself grow. I think Humboldt himself would have been astonished at any such geological theory of the uprising of the earth as would enlarge an area of 70,000 square miles, in an inland country, into more than 300,000, in less than fifty years.
But, fellow-citizens, slavery is already in the territories, whether prohibited by God and nature, or not! The line of 36° 30´ crosses the territory appropriated to the Indians, which is already full of slaves. Whenever the Indian title is extinguished, slavery will be found there in possession of the soil. Utah has slaves to-day, and I was informed by a gentleman chosen as a delegate from that territory to Congress, that the Mormon religion prescribes nothing on the subject.
I need not now dwell on another act of the last session,--the Fugitive Slave Law,--because, as yet, I believe no voice in Massachusetts has been raised in its defence or palliation. It is an act which might turn all of us here, at this moment, into slave hunters; which might break up this meeting at the present time, should an officer, clothed with the authority of the United States, appear at that door and command us to chase an alleged fugitive, perhaps a native-born freeman, over the graves of our Pilgrim fathers.
Standing here, then, before you, my constituents, to give account of my stewardship, I have to say, that with voice and vote, by expostulation and by remonstrance, by all means in my power, I have, to the full extent of my ability, resisted the passage of all these laws. Why have I done so? Because, in the first place, I felt myself a moral and accountable being; and, as such, I could not do otherwise. I have done so, in the second place, because I was your representative, and believed myself to be acting in conformity with your wishes, with the wishes of the Whig party of Massachusetts, and of my constituents generally. Have I been mistaken? [A volley of noes.]
To ascertain what were the wishes of the Whig party, and of those who put me in nomination, I shall refer you to a series of the resolutions of conventions, and of the declarations of the best accredited authorities of that party, on this subject, for years past. The following are among the resolutions of the Whig convention which assembled in this town, March, 1848, to nominate a successor to the Hon. John Quincy Adams. They were unanimously adopted:--
“_Resolved_, That the members of this convention, met together for the purpose of nominating a candidate to supply the vacancy existing in the eighth congressional district, mourn, in common with the state and the nation, the event which has deprived them of the services of that eminent son of Massachusetts, whose voice was ever raised in the cause of freedom, whose vast and varied powers, more than those of any other statesman of his time, were devoted to the service of his country, shedding light upon her institutions, and leading her on in the path of duty, prosperity, and glory.
“_Resolved_, That the loss of his services in the halls of Congress, at this time, is the more deeply to be deplored, when his great weight of character, his influence, his talents, his wisdom, his zeal, and indomitable energy would have been so benignly felt upon the great questions of freedom and slavery, which are to be discussed and settled for our newly-acquired domain, stretching from the Gulf of Mexico to the Pacific Ocean.
“_Resolved_, That it behooves us to unite upon a candidate to represent this district upon the floor of Congress, whose principles shall be in consonance with those of his predecessor, whose fidelity to the great principles of human freedom shall be unwavering, whose voice and vote shall on all occasions be exercised in extending and securing liberty to the human race.”
In September, 1848, the Whig state convention of Massachusetts met at Worcester, when the following resolution, among others, reported by the Hon. Joseph Bell, of Boston, since then president of the Massachusetts Senate, was unanimously adopted:--
“_Resolved_, That being impressed with a profound sense of our responsibility, as the representatives of the Whigs of Massachusetts, that responsibility which attaches to our words, acts, and votes,--we cannot fail, on this occasion, as we have never failed on any other general assemblage of the Whigs of Massachusetts, to record, in the most solemn and deliberate manner, our unqualified opposition to any extension of the institution of slavery into our territory, or any acquisitions of territory, for the purpose of such extension. On this question, the voice of the Whigs of Massachusetts has been unwavering and uniform, and never has that voice spoken with higher eloquence and power than when our distinguished senator in Congress, speaking for himself, and for the whole people of the commonwealth, said, ‘I consent to no further extension of the area of slavery in the United States, or to the further increase of slavery representation in the House of Representatives.’”
In September of the same year, another Whig convention assembled at this place, to nominate a candidate for the Thirty-first Congress. My views, as recorded by my votes on all the questions of slavery, and as expressed in my speech, delivered on the 30th of the preceding June, were then before the people. That convention, among other resolutions, passed the following, by acclamation:--
“_Resolved_, That we cordially approve of the course of the Hon. Horace Mann, and that his position in regard to _free_ principles, _free_ labor, and _free_ speech, sustained with such signal ability, was but a satisfactory fulfilment of the expectations that we had when we nominated him to succeed the illustrious Adams. Regarding the past as the best and only honorable pledge of the future, this convention unanimously present his name to the people of this district for reëlection.”
At the Whig state convention, held at Springfield, September 29th, 1847, Mr. Webster said he would consent to no extension of slavery. Are not the laws which I have just read a consent?--full consent? He claimed the Wilmot proviso as his “thunder,” and said it had been stolen from him. Whether stolen from him, or not, I do not decide. He certainly seems to have lost possession of it; for we now find him thundering on the other side;--yes, from the high Olympus to which the votes of Massachusetts had elevated him, he has hurled his bolts against the dearest interests of his benefactors. But it is said we have registered these acts of pro-slavery legislation, at the dictation of the south, in order to save the Union. When Governor Davis was once asked to surrender the rights of humanity to save the Union, he retorted with the question, “How many times have we got to save the Union?” If we yield to every threat of disunion, we shall have to save the Union whenever any factious and unprincipled member of it shall threaten resistance to the laws. Look at the present threat which has been made by Texas. What resources has she wherewith to oppose the general government? She has no funds except a school fund of $34,000, which her governor, in one of his late messages, declared to be inviolably devoted to education. To be sure, since this cry of rebellion has been raised, he has said that this fund, which could be diverted for no useful purpose, might be appropriated to the treasonable one of resistance. But look at the amount of this fund,--$34,000. Military men tell me it would not support a single regiment of mounted rangers more than a month; and all the more settled parts of Texas are at least one month’s marching distance from Santa Fe, which is the nearest point of attack. There was never any thing more ridiculous than the threats of Texas, that she will take armed possession of the eastern side of the Rio Grande, if it be not surrendered to her. She cannot even protect herself against the Indian tribes that roam through the regions lying between her and the people she threatens to subjugate. Will the disaffected states of the south help her by munitions, money, or men? The only states on which she could place any reliance are Mississippi and South Carolina. Could a military force be organized, and then marched nearly a thousand, or nearly fifteen hundred miles, across the country, to uphold the Texan banner on the borders of the Rio Grande? Were expeditions to be sent by sea, could not the mouth of the Mississippi, the harbor of Charleston, and that gateway of the Gulf of Mexico, which lies between the capes of Florida and the West India Islands; ay, the whole Texan coast itself, be blockaded and guarded, so as to make a hostile irruption into New Mexico impossible? Talk about Texan resistance to the government of these United States, my fellow-citizens; it is so ridiculous that nothing can be conceived which is not less ridiculous, and which would, therefore, by the very comparison, relieve the supposition of a portion of its nonsense. This surrendering to the threat of disunion, is like the foolish mother who gave her boy a sugar-plum to stop swearing. Presently he belched out a stream of profanity; and when the mother asked him why he did so, he said, “I want more sugar-plums.” General Taylor embraced the whole subject in a short sentence when he said he was more afraid of Texan bonds than of Texan bayonets. Their bonds have been ten thousand times more powerful than their bayonets in consummating this disastrous compromise.
But it is not only in conventions of the Whig party that sentiments have been expressed wholly incompatible with the great surrenders we have made. Such sentiments have emanated from more authoritative sources. They are the voice of our commonwealth,--the repeated voice, reiterated again and again, through a series of years. Let me select a few from among the many resolves of the Massachusetts legislature, covering the time, and preceding the time, that I have been in Congress. The following was passed in 1847:--
“_Resolved_, _unanimously_, That the legislature of Massachusetts views the existence of human slavery within the limits of the United States as a great calamity, an immense moral and political evil, which ought to be abolished, as soon as that end can be properly and constitutionally attained, and that its extension should be uniformly opposed by all good and patriotic men throughout the Union.”
Again, in 1849, the legislature of Massachusetts
“_Resolved_, That when Congress furnishes governments for the territories of California and New Mexico, it will be its duty to establish therein the fundamental principles of the ordinance of seventeen hundred and eighty-seven, upon the subject of slavery, to the end that the institution may be perpetually excluded therefrom beyond every chance and uncertainty.”
And again, during this present year, and not six months ago, the same general court passed the following resolve. I might read from the printed volume of the “Acts and Resolves of 1850;” but I choose to read from _this official circular_ which I hold in my hand, which is attested by the secretary of state, and was sent to me at Washington, as to all the other members of Congress from Massachusetts, so that we might be informed of the views of the state government, as well as of our respective constituencies, on this important subject:--
“_Resolved_, That the people of Massachusetts earnestly insist upon the application by Congress of the ordinance of 1787, with all possible sanctions and solemnities of law, to the territorial possessions of the Union in all parts of the continent, and for all coming time.
“_Resolved_, That the people of Massachusetts, in the maintenance of these their well known and _invincible_ principles, expect that all their officers and representatives will adhere to them at all times, on all occasions, and under all circumstances.”
And yet, in six months, we are called upon to support these laws. Is this “all coming time”? Are these “invincible principles” of the Massachusetts Whig legislature to melt, like wax, when touched by the breath of party? They notified me, under their seal and sign-manual, that they expected “all their officers and representatives to adhere to them, at all times, on all occasions, and under all circumstances.” And yet, before six months have elapsed, some of the very men who voted to give me such instructions, or injunctions, or whatever you please to call them, having discarded their own solemn asseverations of principle, now upbraid me because I, too, will not be recreant to them. Is this what you are to expect from men whom you have elected by your votes, and to whom the momentous interests of millions, and the honor of the country, have been confided, that their vows should be like those of perfidious lovers, who swear “eternal fidelity”--during the honey moon? We cannot plead the excuse, in regard to these resolves, which a certain hearer of Whitfield did, for appearing unmoved at one of his pathetic discourses, while all others were melted to tears. When asked why he, too, did not weep, he replied that “he did not belong to that parish.” We do belong to this parish. These are the “acts and resolves” of our own state, fresh and unsullied from the mint. We cannot deny their genuineness. If we impute fraud any where, it must be to the motives of those who passed them. Hear, too, what Governor Briggs says on this same subject, in his last inaugural address:--
“Entertaining no doubt of the constitutional power of Congress to exclude slavery from its own territories, and believing that such exclusion is demanded by the highest principles of morality and justice, she never can consent to its extension over one foot of territory where it now is not. If the other free states concur with her in this resolution, the thing will be done, and consequences left to themselves.”
Thus have the Whig party in this state, and its executive, pledged themselves not to extend slavery “one foot.” How many feet in the six hundred thousand square miles, into which the legislation of the last Congress permits slavery to enter?--which legislation the Whig party is now called upon to indorse,--that is, how many myriad pledges do they require us to break?
Let me now quote from another high Whig authority,--General James Wilson, of New Hampshire. For many years, probably no man has been considered a more authoritative expounder of Whig sentiment. He has been employed by the party, or the organs of the party, to traverse the country for the advocacy of Whig principles, and has been every where listened to with great acceptance. In Congress, he spoke as follows:--
“I hold that Congress is bound to take care of the territories, and so execute the trust as will best promote the interests of those who may hereafter be entitled to the beneficial use. As a member of this Congress, I feel that I sustain a part of that responsibility, and it is my desire to acquit myself worthily in meeting it. I desire so to acquit myself that my own conscience will not upbraid me, and that when I shall pass away, no reproach shall fall upon me, or my children after me, for my acts here upon this momentous question. I have, sir, an only son, now a little fellow, whom some of this committee may have seen here. Think you that when I am gone, and he shall grow up to manhood, and shall come forward to act his part among the citizens of the country, I will leave it to be cast in his teeth, as a reproach, that his father voted to send slavery into those territories? No! O, no! I look reverently up to the Father of us all, and fervently implore him to spare that child that reproach. May God forbid it!
“I have said that it is characteristic of the slave power to accomplish all of its political purposes in this government. I must now say that the power and influence of slavery over the action of Congress is impaired, if not entirely gone. [What an infinite mistake!] I make this declaration, not because I have any confidence in the politicians of the day. No, sir, I have none whatever. The politicians are just as ready now to betray their constituents as they ever have been. I am sorry to say there is evidence enough of this. My confidence is in the people. They have taken the matter into their own hands; they have brought themselves into order of battle and line, without the word of command from any political leader. Here they stand, with front rank, and rear rank, and rank of file-closers in position, with bayonets at a charge. They have spoken to their representatives in a voice of thunder, and warned them against abandoning their interests. They have bid them do it at their peril. The constituents have challenged their representatives to betray their trusts, and skulk and retreat upon them, _if they dared_.
“And, sir, the constituencies have spoken ‘upon honor.’ They are determined, and will execute their purposes. There was a time, when, if the slave power had any special work to be done, and wanted a northern man to do it, they hunted him up from New Hampshire. Little, unfortunate New Hampshire was called upon to furnish the scavenger to do the dirty work. That day, thank God, has gone by, and it will not come again very soon. [Wait a short year, Mr. Wilson, and see who the Hazael will be.]
“The north are not disposed to trespass or interfere with the rights of the south. Where slavery exists within the states, the northern people claim no right to interfere with it by any political action of this government. The people ask no action by Congress on the subject of slavery within the states. But gentleman need not ask me for my vote to extend the institution of slavery one single inch beyond its present boundaries. Did I say an inch, Mr. Chairman? Ay, I would not extend it one sixteen-thousandth part of a hair’s breadth. I would not extend it, because it would be doing an irretrievable wrong to my fellow-man; because it would be doing irreparable wrong to those territories for which we are now to legislate; because it would be doing violence to nature and to nature’s God; and because it would be a wicked and wanton betrayal of the trust confided to me by the free, intelligent constituency which has done me the honor to send me here.
“It shall not be in the power of any man to shake a menacing finger at me, and look me in the face with a jibe of contempt, and say to me, in the insulting language of a former representative from Virginia, [Mr. RANDOLPH,] ‘we have conquered you, and we will conquer you again; we have not conquered you by the black slaves of the south, but by the white slaves of the north.’ No, sir, that remark shall never apply to me. Gentlemen need not talk to me, or attempt to frighten me, by threats of dissolution of the Union. Sir, I do not permit myself to talk, or even think of the dissolution of the Union; very few northern men do. We all look upon such a thing as impossible. But, sir, sir, if the alternative should be presented to me of the extension of slavery, or the dissolution of the Union, I would say, rather than extend slavery, let the Union, ay, the Universe itself be dissolved! Never, never will I raise my hand or my voice to give a vote by which it can or may be extended. As God is my judge, I cannot, I will not be moved from the purpose I have now announced.”
And yet this same General Wilson did vote for every one of these laws, excepting, perhaps, the last, which passed in the night,--fit darkness for so dark a deed,--and the next morning he was off for California. How can such a man stop this side of Botany Bay? Now, fellow-citizens, did you want me to disgrace myself, and you, and human nature, too, by such an act of flagrant apostasy? [A crash of noes.] Yet if these measures are adopted and sustained by the Whig party, and if those men who committed these nefarious deeds are justified and upheld by you, then how are you less guilty than General Wilson?[16]
Let me quote a passage or two from a speech delivered by one of my colleagues in Congress, the Hon. George Ashmun, who has, I believe, usually been considered pretty good Whig authority. In a speech made by him on the 27th of last March, referring to the subjects of slavery in the territories and the recaption of alleged fugitive slaves, he said,--
“But I am bound to say, however, if the south persist in uniting to demand the entrance of slavery into our free territories, I, for one, must conform to what are, at the same time, the views of my constituents and the convictions of my own judgment; and if I am driven to the alternative, I shall not hesitate to vote for the proviso.”--_App. to Cong. Globe_, _1st Sess. 31st Congress_, p. 401.
“While I desire to do every thing which may protect the rights of property which are guarantied to citizens of the slave states, I cannot consent to sacrifice the rights of liberty which belong to the citizens of the free states. To secure both these ends, I see no other mode than to have those rights settled before legal tribunals, _by the verdicts of juries and the judgments of courts_.... When a colored man is seized in Massachusetts upon a claim that he is the property of a citizen of a slave state, and he claims to be a citizen of Massachusetts, and invokes the protection of the laws of Massachusetts, is it to be said he may be summarily sent away by the decree of any one magistrate without the privilege of vindicating his title to his citizenship before a jury of the country? Why, sir, it could not be done in the case of a horse escaped from one state to another, and found in the possession of a citizen. It could not be taken by strong hand,--by force. The claimant must resort to process of law. He must sue out his writ of replevin, and the title of the defendant must be tried where he lives. That defendant may be a negro; and surely, if without a trial by jury you may not take that which he claims to be his property, you can hardly claim to seize the man himself, and carry him away, before his title to freedom has been tested by a tribunal, as respectable, at least, and as safe, as that which settles a title to his horse.”--_Ib._ p. 399.
And another of my colleagues, [Mr. DUNCAN,] even as late as the 7th of June last, emphatically declared, in the House of Representatives, as follows:--
“If territorial bills are presented for the government of New Mexico and Utah, I shall vote for the exclusion of slavery from those territories.
Let me fortify these citations by another from one of the acknowledged leaders of the Whig party,--the Hon. Rufus Choate:--
“On all the great questions of the day, but just slavery; on executive power, on internal improvement, on the protection of labor, on peace, and the constitution, we mean to remain the same party of Whigs, one and indivisible, from Maine to Louisiana,--one vast incorporation of consentaneous feeling throughout the land; and upon this question alone we always differ from the Whigs of the south; and on that one we propose simply to vote them down.”[17]
I will quote a passage also from a recent letter of the Hon. Zeno Scudder, late a Whig president of the Massachusetts Senate, and now a candidate of the Whig party for Congress, in District No. 10:--
“I was at the Springfield convention when Mr. Webster said, ‘Not another inch of slave territory; _no, not one inch_!’ By the aid of his remarks on that occasion, I was confirmed in the views which I had before entertained, and have as yet seen no reason to change them.
“In 1847, I had the honor and pleasure of recording my ‘yea’ in favor of the resolves ‘concerning the existence and extension of slavery within the jurisdiction of the United States,’ and ‘concerning the Mexican war and the institution of slavery,’ which passed the legislature of last year; and had I been a member of that body at its last session, I should have given my support to the resolve ‘concerning slavery,’ which was then passed.
“When I recorded my ‘yea,’ and advocated the resolves of 1847, I did not suppose them to be _idle words_, written out to be bandied about and declaimed upon in Massachusetts, and be _laid snugly away_, if ever I should depart the jurisdiction. I supposed them to involve great principles of human freedom, which were to be applied throughout the length and breadth of our country, whenever and wherever the time and place might present legitimate opportunities therefor.”
At the Whig state convention held at Springfield in 1847, a resolution was submitted by Dr. Palfrey, “that the Whigs of Massachusetts will support no men for the offices of president and vice-president, but such as are known by their acts, or declared opinions, to be opposed to the extension of slavery;” and Mr. William Dwight, then of Springfield, is reported to have said, “You cannot vote for a candidate not known to be opposed to slavery extension; _it would be guilt_.”
But, fellow-citizens, I might go on citing authorities of this kind until sunset;--nay, until sunlight should come round again, and still leave the greater part of my resources untouched. I will refer you but to one more,--a resolution passed at the late Whig state convention, only a few days ago, which was as follows:--
“_Resolved_, That Massachusetts avows her unalterable determination to maintain all the principles and purposes she has in times past affirmed, and reäffirmed, in relation to the extension of slavery; and the measure of success which has attended her exertions is a new incentive to continue and persevere in all constitutional efforts, till the great and good work shall be accomplished and perfected.”
And now, gentlemen, let me ask you whether my action has been in accordance with these sentiments, as expressed by the highest acts of the party and the most solemn resolutions of the state? [An acclamation of yeas.]
Here, fellow-citizens, I come to the test question: Did we, as true Whigs, and as honorable men, make all these declarations in sincerity, meaning to stand by them to the end; or was it done, from time to time, to beguile a portion of our fellow-citizens of their votes, on the vile doctrine that “all is fair in politics”? Were we frank and in earnest, or were we hollow and fraudulent?
I know very well what influences have been brought to bear upon us. I know we are a people intent on thriving, and on worldly prosperity. Every young man amongst us sets out in life determined to better his condition. This, to me, is no cause of regret, but of rejoicing. If the spirit of thrift does not transgress the limits of honor and duty, it is not only right but laudable. The animal wants of man must be supplied before he will develop his intellectual or moral powers. You may find individuals who will be virtuous amid want and privation,--heroes in virtue;--but a virtuous community in rags and hunger, you will never find. We must put society in a condition of physical comfort, before it will rise to mental excellence. I am an ardent advocate, therefore, of all measures tending to increase the wealth of the country; but on this ever-present and everlasting condition, that it is done without a sacrifice of principles. Any enlargement of business, any increase of profits, any augmentation of wealth, gained by a community through a dereliction from principle, is as insecure and as ignominious as the gains of an individual through fraud, embezzlement, or peculation.
For the purpose of rewarding our native labor, therefore, I am for a protective tariff. Perhaps some persons may be here present who dissent from this opinion; but I came here to avow, and not to conceal my sentiments and acts. It has always seemed to me that we must protect our labor against foreign labor, or our laborers at home will fall to the condition of the pauper laborers abroad. In Manchester in England, and Glasgow in Scotland, and many other manufacturing towns in Great Britain, there are thousands of wretched, degraded female operatives, who earn scarcely a shilling a day. After their day’s work is done, they visit the dram-shops, roam the streets till midnight, and if not invited away by vicious men, they huddle by scores into filthy lodging-houses, where they sleep, men and women promiscuously, till morning summons them back to their tasks. Now where labor is so scantily paid, fabrics can be produced more cheaply; and if these fabrics can be sent into this country, free of duty, they will undersell ours, until the prices of our labor and the condition of our laborers are reduced to theirs. Nothing is left to protect our industry but the cheaper freight of the materials, and that is too trifling a compensation to be of any account. This is the whole philosophy of the matter, and to me it has always seemed unassailable.
It has been thought and said that if we would yield to the south on the slavery question, they would yield to us on the tariff question. We have surrendered the slavery question. Have we got the tariff? Have we got any thing but disgrace in the eyes of the civilized world? To me, it seems that our chance for a tariff is greatly diminished. For the majority which is necessary to enable us to pass a tariff law, we must depend on our opponents. By our yielding to the south, their party discipline has been immensely strengthened, and it is now more difficult than ever to obtain their votes for any measure conducive to northern interests. Besides, they now say they will retain the tariff question as an open one, in order to keep us on our good behavior. What have those now to say for themselves, who beguiled a portion of our people into the delusion, that they might safely barter human rights for pecuniary advantages, and have left to their dupes both the loss of the advantages, and the disgrace of abandoning their principles!
But an appeal is made to us to ratify this surrender to the slave power, because of our love for the Union. And is our love for the Union always to be converted, or rather perverted, into a pro-slavery motive of action? I join you all most cordially, I join any one, in avowing my regard for the Union, and my resolution to stand by it. But the Union ought to be so used as to extend, and not to abridge human welfare. If, in order to maintain the Union, we must sacrifice all the great objects for which the Union was formed,--the establishment of justice, the promotion of the general welfare, and the securing of the blessings of liberty to ourselves and our posterity,--then the Union no longer represents a beneficent divinity but a foul Dagon, and is worthy to be broken in pieces. A Union which must be secured by such sacrifices as have been lately made in New York, in behalf of the so called “Union Meeting,” abolishes the benefits it was designed to secure. Eight thousand signatures were obtained for calling that meeting; but to procure them, whole streets were scoured, and men were threatened with the publication of their names, and the consequent loss of southern custom, if they refused to join in the call. Many were obliged to pay _hush money_ to prevent exposure. The New York idea is slavery and free trade. Here, it is slavery and tariff. Both cities cannot get the price of their surrender of principle.
No, fellow-citizens, the more we yield to the demands of the south in order to save the Union, the more we may and must. Their longing eyes are already fixed on Cuba. There is more probability and more danger to-day that Cuba will be annexed to this government within five years, than there was of Texan annexation five years before that event took place. I lately said to a Louisianian, “You will soon be for making a slave state of Cuba.” “No,” said he, “we mean to make two of that.”
Gentlemen, I have already occupied your attention too long. But I am constrained to make a few brief remarks on a subject I would gladly avoid. The occasion of your present meeting is known to all. Two years ago, I was nominated by the Whigs of this district as their candidate for the seat in Congress which I now hold. By the favor of my fellow-citizens of all parties, I received more than eleven thousand out of about thirteen thousand votes cast at that election. I felt assured at that time, that I agreed in all essential articles of political faith with those who gave me their support, otherwise I should not have accepted the office at their hands. I have endeavored faithfully, and according to the best of my ability, to carry out the wishes which they then expressed, and which they well knew that I held. Yet, during the last week, a Whig convention, (so called,) assembled in this place to nominate a candidate for the thirty-second Congress; and, after some close voting, they nominated as my successor, the Hon. Samuel H. Walley,--a gentleman, I am happy to say, towards whom I have always sustained relations of personal kindness. In the language of the day, that convention threw me overboard. Now it is known to my whole circle of private friends, that, as soon as Congress passed these pro-slavery measures to which I have adverted, my determination was formed not to be a candidate for reëlection. I resolved to return to the people, and labor at home instead of at Washington, in the cause of human freedom. But it was soon given out, in certain influential quarters, that I should not be returned to Congress again, and that I should be stigmatized by a rejection. Unsurpassed efforts, as you all know, have been made to carry out this threat; even the Secretary of State of the United States has made it the occasion for a practical contradiction of all he had ever said against bringing the influence of the government to bear upon the freedom of elections; and the proceedings of the last week’s convention were the first instalment of the penalty which I am to suffer for defending human rights and unmasking their betrayers. It is said that the convention of last week was a packed convention; that it did not represent the wishes of the people. Decorum forbids _me_ to make any such charge, even though it were probably true. In a few days, this point will be settled by the sovereign of us all, at the ballot-box.[18]
But two or three points, to which I wish to call your attention, are contained in the address put forth by the meeting I have referred to. Let me premise, however, that I take no exception to the fact that my acts and opinions should be made the subject of examination and criticism by any body of men, or by any man. It is better that animadversion should be wrong than that it should not be free. Like Aristides, I would write the vote that should banish me, rather than to fetter or control the voter’s will. And now, having laid down these principles in favor of free speech for others, I proceed to exemplify them for myself.
The first charge preferred against me, in the address, is, that I said, in a letter dated on the 3d of May last, and addressed to a portion of my constituents,[19] that I “sympathized on different points with different parties, but was exclusively bound to none.” Upon this, the address remarks, “If we understand his meaning, it is ... that he cannot be our champion and defend our cause, as our true representative should, whenever and wherever called upon.” No, I reply to this, I will not promise beforehand to be any man’s “champion,” nor to defend any man’s “cause,” “_whenever and wherever called upon_.” This would be to proffer championship and allegiance to men and measures whether they were right or wrong. If any man offers to vote for me on such conditions, I deny him my assistance and disdain his support. Perhaps I do not know what I was made for; but one thing I certainly never was made for, and that is, to put principles on and off, at the dictation of a party, as a lackey changes his livery at his master’s command.
Another remark in the address is, that the compromise measures, so called, excepting the fugitive slave law, were “wise, and that they gave to the free states all they could reasonably ask.” What a stultification, my friends, is this, of ourselves, of our party, and of every department of our state government, for the last ten years. What have you been doing, but resolving, contending, and placing your words and deeds upon the historical records of the state and the nation, against the identical measures now declared to be “wise,” and all for which the free states “could reasonably ask”? I leave this point with a single remark. The address excepts the fugitive slave law from the measures it commends. Before another year is past, will not that most execrable act in modern legislation be palliated or adopted by those who voted for this address?
A third objection to my position is, that I regard the question of the extension of slavery into our territories as paramount to those questions of a pecuniary character, on which we desire to obtain the favorable action of the government. Let this objection against me have its full force. I admit it, in all its length and breadth. I do regard the question of human freedom for our wide-extended territories, with all the public and private consequences dependent upon it, both now and in all futurity, as first, foremost, chiefest among all the questions that have been before the government, or are likely to be before it. When temporary and commercial interests are put in competition with the enduring and unspeakably precious interests of freedom for a whole race, of liberty for a whole country, and of obedience to the will of the Creator, my answer is, “Seek ye first the kingdom of God and his righteousness, and all these things shall be added unto you.”
In an address delivered by Mr. Choate, in 1848, he declared the slavery question to be of “transcendent importance;” and for this sentiment he was universally applauded. Wherein does “_paramount_ importance” so differ from “_transcendent_ importance,” that the one is to be applauded while the other is condemned?
Let me call your attention to one other remark in the address, and I will leave it. It suggests that my course in Congress on the slavery questions has been unacceptable to the south, and that we ought to send a representative who will conciliate them and obtain their good will. Fellow-citizens, do you suppose that any man can be true to the memory of the Pilgrim fathers, and to the love of liberty they bequeathed us, and at the same time true to the spirit of the Cavaliers, and to the wishes of their slave-owning posterity? Eighteen hundred years ago, it was said that no man can serve two masters; but the cupidity of modern times proposes the solution of a problem which Christ declared to be impossible. My opinion is, that the cause of all our present calamity, and of the enduring dishonor of the late measures, is this very desire to conciliate southern favor, instead of giving a manful defence to northern rights.
Finally, fellow-citizens, it is our fortune to live during a great historic crisis in the affairs of the world. This is the age of the useful arts; of discoveries and inventions, which are filling with wealth the garners and the coffers of men. It is the age of commerce, of profit, of finance. One part of our nature is intensely stimulated. Let us beware of the effect of this stimulus upon that nobler portion of our being, which no splendor of opulence nor profusion of luxuries can ever satisfy; which demands allegiance to God, and justice and humanity towards our fellow-men; and which must have them, or die the second death. We may be poor; but let us deprecate and forefend the most calamitous of all poverties,--a poverty of spirit. We may be subjected to great sacrifices; but let us sacrifice every thing else, nay, life itself, before we sacrifice our principles. I commend to you the language of the good Bishop Watson, who, when tempted to stifle the expression of his convictions through the hope of kingly patronage, replied, that it was “Better to seek a fortuitous sustenance from the drippings of the most barren rock in Switzerland, with freedom for his friend, than to batten as a slave at the most luxurious table of the greatest despot in the world.”
FOOTNOTES:
[16] Mr. Wilson has since been rewarded by the administration with a lucrative office in California.
[17] See, also, _ante_, p. 256.
[18] The people settled the question by electing Mr. Mann by a majority over all other candidates.--_Publishers._
[19] See _ante_, p. 237.
SPEECH
DELIVERED IN THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, IN COMMITTEE OF THE WHOLE ON THE STATE OF THE UNION, FEBRUARY 28, 1851, ON THE FUGITIVE SLAVE LAW.
MR. CHAIRMAN;
Some time ago, I prepared a few comments upon those prominent measures of the last session, which have since arrested the attention of all the lovers of constitutional liberty, and of moral and religious men, throughout the civilized world. I am unwilling to suffer the present session to close without expressing the reflections I have formed; because I deem it but a reasonable desire that my opinions should be placed upon the records of the very Congress to whose measures they refer.
Does any one ask what benefit I anticipate from a discussion of this subject at the present moment? I answer, this benefit at least: that of entering a solemn protest against a grievous wrong, and of placing upon the tablets of my country’s history, what I believe to be the views of a vast majority of my constituents, in common with the vast majority of the people of Massachusetts.
Some of those compromise measures are destined to be of great historic importance. They will be drawn into precedent. When, in evil days, further encroachments are meditated against human rights, these old measures will be cited as a sanction for new aggressions; and, in my view, they will always be found broad enough, and bad enough, to cover almost any nameable assault upon human liberty. When bad men want authority for bad deeds, they will only have to go back to the legislation of Congress, in 1850, to find an armory full of the weapons of injustice.
Sir, legislative precedents are formidable things. If created without opposition, and especially if acquiesced in without complaint, they become still more formidable. Now, if there were no other reasons for reviving this subject at the present session of Congress, this alone would be an ample justification,--it forefends the argument from acquiescence.
When several of these measures were passed, and particularly when one of the most obnoxious and criminal of them all was passed,--I mean the Fugitive Slave bill,--this House was not a deliberative body. Deliberation was silenced. Those who knew they could not meet our arguments, choked their utterance. The previous question, which was originally devised to curb the abuse of too much debate, was perverted to stop all debate. The floor was assigned to a known friend of the bill, who after a brief speech in palliation of its enormities, moved the previous question; and thus we were silenced by force, instead of being overcome by argument. For, sir, I aver, without fear of contradiction, that the bill never could have become a law, had its opponents been allowed to debate it, or to propose amendments to it. For the honor of the country, therefore, at the present time, and for the cause of truth hereafter, it is important that the hideous features of that bill, which were then masked, should be now unmasked. The arguments which I then desired and designed to offer against it, I mean to offer now. Those arguments have lost nothing of their weight by this enforced delay, and I have lost nothing of my right to present them.
Mr. Chairman, I feel none the less inclined to discuss this question, because an order has gone forth that it shall not be discussed. Discussion has been denounced as agitation, and then it has been dictatorially proclaimed that “agitation must be put down.” Sir, humble as I am, I submit to no such dictation, come from what quarter or from what numbers it may. If such a prohibition is intended to be laid upon me personally, I repel it. If intended to silence me as the representative of the convictions and feelings of my constituents, I repel it all the more vehemently. In this government, it is not tolerable for any man, however high, or for any body of men, however large, to prescribe what subjects may be agitated, and what may not be agitated. Such prescription is at best but a species of lynch law against free speech. It is as hateful as any other form of that execrable code; and I do but express the common sentiment of all generous minds, when I say that for one, I am all the more disposed to use my privilege of speech, when imperious men, and the sycophants of imperious men, attempt to ban or constrain me. In Italy, the pope decides what books may be read; in Austria, the emperor decides what books may be written; but we are more degraded than the subject of pontiff or Cæsar, if we are to be told what topics we may discuss. If the subjects of a despotic government are bound to be jealous even of the poor privileges which they possess, how sensitive, how “tremblingly alive all o’er” ought we to be at these threatened encroachments upon freedom of speech and freedom of thought. I think that those who say so much about recalling us to a sense of our constitutional obligations, would do well to remember, that the very first article of the amendments to the constitution secures the freedom of speech and the freedom of the press. By the common consent of this country, manifested in all forms for more than half a century, the old alien and sedition law has been condemned. Has that law been condemned for fifty years in order to make our shame more conspicuous by its revival under circumstances of intolerable aggravation? Sir, I hold treason against this government to be an enormous crime; but great as it is, I hold treason against free speech and free thought to be a crime incomparably greater.
If it be just and heroic to rebel against all arbitrary invasions of free thought and free expression, then is it not proportionably base and dastardly to utter menaces, or threaten social or political disabilities for the unconstrained exercise of these birthrights of freemen? On the face of it, it must be a bad cause which will not bear discussion. Truth seeks light instead of shunning it. He convicts himself of wrong who refuses to hear the arguments of his opponent. It was well said by Montesquieu, that “the enjoyment of liberty, and even its support and preservation, consists in every man’s being allowed _to speak his thoughts and lay open his sentiments_.” Wherefore, then, in a country hitherto reputed to be free, are we told that discussion must be stopped, and agitation must be put down? It seems as if, when a freeman debases his soul by lending himself to the defence of slavery, God punishes him on the spot by demoralizing his own nature with that spirit of tyranny which belongs to slavery. Wherein consists the advantage of a republican government over a despotism, if the freedom of speech and of the press, which can be strangled in the one by arbitrary command, can be stifled in the other by obloquy and denunciation?
It is remarkable, too, that of all the “agitators” in the country, there are none more violent than those who are agitating against agitation. Throughout the north, that portion of the public press which volunteers its influence to extend the domain of slavery, and to maintain it by extra-constitutional laws, is constantly provoking the agitation it denounces. What are these so-called Union meetings in northern cities but an extensive apparatus of agitation,--a piece of machinery to manufacture and send abroad the very articles which its managers declare to be contraband? Through public assemblies, through the public press, and by correspondence designed for the public eye, they are shaking the common air to keep it calm; they are agonizing and in convulsions for repose; they are vociferating to maintain silence. In the most clamorous days of anti-slavery, there never was half so much said and written against the institution as is now said and written for it. Sir, is the right of agitation to be monopolized by those who denounce it? Is free speech to be only on one side; and is it one of the offices of free speech to silence the sentiments it dislikes? I think this is the second time in the history of this country, that an attempt has been boldly and unblushingly made to stifle free discussion; and I do not believe the fate of those who are now laboring to accomplish so nefarious a purpose will be historically more enviable than that of their prototypes, who passed the far-famed law against seditious speeches and writings.
Is it not extraordinary, too, that this interdict on discussion should be applied to a subject which touches the highest interests of man, and calls into fervid action all the noblest faculties of his nature; which, more than any thing else, tests the question whether a man _is_ man? We may discuss the question of bank or sub-treasury, of tariff or free trade; but the only subject too sacred to be approached, is slavery and its aggrandizements. This is a free country, except when a man wishes to vindicate the claims of freedom. All other parts of the temple may be entered, but slavery is the ark of the covenant, and whoso lays his profane hands thereon must perish.
Sir, how comes it to pass that an institution which even the enlightened heathen of old pronounced to be iniquitous, and which eighteen added centuries of Christian illumination have proved to be the sum of offences against God and man, should now be protected, not merely by constitutions and laws; but that a general warfare should be waged against all those who would restrain it within its present limits, and keep it from arming itself with new weapons of oppression? How comes it to pass that this should be done, not in the despotisms of Austria and of Russia, but in republican America? Sir, it is not to be done, and cannot be done. Almighty God has so constituted the human soul, that while wrong exists upon the face of the earth, all the noblest impulses of that soul will war against it. The order of nature will war against it. “The stars in their courses” will war against it. Discussion, or agitation, if you so please to call it, is one of the Heaven-appointed means by which truth is to be spread until it covers the face of the earth, as the waters cover the sea. It was by discussion and by agitation, in synagogue and in temple, in distant cities and in different empires, that Christianity was carried from its cradle in Jerusalem to the ends of the earth. Did not the disciples of Jesus Christ go “agitating” from city to city, from Palestine to Greece, and from Greece to Rome, notwithstanding they were imprisoned and scourged, flayed alive, and burnt, and persecuted as incendiaries and fanatics, by scribe, and Pharisee, and high priest? The very accusation brought against the Savior was, “He stirreth up the people, teaching throughout all Jewry, beginning from Galilee to this place.” The subject on which anti-slavery men now “agitate” is inferior only in importance to that on which Christ and his disciples “agitated.” Nay, the only cause why Christianity has not prospered as it ought during the last eighteen centuries, and why it has not already overspread the whole earth with its blessings, is, that LIBERTY has not been given it as a sphere to work in. It is because SLAVERY has existed among men; and Christianity never will and never can pervade the earth until the barriers of slavery are first overthrown. It was by discussion and agitation that the prevailing religion of this country,--the Protestant religion,--broke through the double phalanx of civil and sacerdotal power, and triumphed throughout the leading nations of Europe, under the indomitable energy of that old hero of Wittemburg, who did not heed nor fear that prince of the slave power, the incarnate devil himself. It was by discussion and agitation that the first glowing sparks of liberty in the bosom of the Adamses, of Hancock, and of Franklin, of Thomas Jefferson and of Patrick Henry, were fanned into a flame that consumed the hosts of the tyrant,--that tyrant who sought to put down this dreadful agitation by means not a whit more reprehensible in his day, than those by which certain leading men are striving to silence it now. Where was there ever written or published a more incendiary and fanatical document than the Declaration of Independence?--a torch to set the world on fire. In the present century, what but discussion and agitation, through all the realms of Great Britain and in this country, could have sufficed to extinguish the slave trade,--that foulest blot upon modern civilization? No, sir; agitation is a part of the sublime order of nature. In thunder, it shakes the stagnant air, which would otherwise breed pestilence. In tempests, it purifies the deep, which would otherwise exhale miasma and death. And in the immortal thoughts of duty, of humanity, and of liberty, it so rouses the hearts of men that they think themselves inspired of God; and not the mercenary clamor of the market-place, nor the outcries of politicians, clutching at the prizes of ambition, can suppress the utterances which true men believe themselves Heaven-commissioned to declare.
The President’s message tells us that the compromise measures of the last session are “FINAL.” I take the liberty to say of that declaration in the message, with all due respect to the high source from which it comes, that I adopt the sentiment, that those measures are _final_, in one sense only. Their substance and object were, in an extreme degree, pro-slavery and anti-liberty. They marked the passage of this government through another long stage in the gloomy highway of oppression. They furnished another argument for those who despair of human nature; and they supply the misanthrope with a plausible reason for hating mankind. They affixed another stain upon the country, and set in deeper shade the contrast between the theory of our government and its practice. They belied still another time the gospel of love and human brotherhood. Once again they defied the vengeance of God, who is no respecter of persons, and who will bring the sinner to judgment. If such measures are to be “_final_,” in this sense only do I accept the proposition,--that they are to be the last of their kind; that here, at this point, the career of this iniquity is to be stayed; that here, the confederated powers of ambition and of wealth,--of those who aspire to office and those who lust for gold, have won their last victory. In this sense only do I accept the President’s declaration, that the action of the last Congress on this subject is to be deemed _final_;--that, in all future conflicts, the right shall not be trampled under foot, but the victims of oppression shall triumph. Base as human nature often proves itself to be, it sometimes manifests a divine resilience by which it springs with recuperative energy from its guilty fall.
I draw no augury of despair from the calamity that has befallen us. It teaches whatever there is of virtue and of principle in mankind, the task which has been set them to do, and whose accomplishment God will require at their hands.
It has been said by the Secretary of State, in a late speech, that if this subject be reöpened in Congress, the friends of freedom will be found in a “lean and miserable minority.” What cares my conscience, sir, whether I am in a minority or a majority, _if I am right_? Has any great and glorious cause ever been started upon earth, that did not find itself, at the outset, in a minority? Did Clarkson and Wilberforce open their twenty years’ contest with a majority? or were not all the office-seekers and mammon-worshippers opposed to them? Did the resistance of the revolutionary patriots to the government of Great Britain start with a majority on its side? Did the Pilgrim fathers resist conformity to ecclesiastical oppression because they were a majority of the people? Did the glorious band of reformers count on majorities, when they defied the racks and the flames of Rome? What would now be our condition if the prophets and heroes of olden days, if the warriors for truth and the martyrs of liberty, all over the earth, had yielded to so base an argument as this, and had followed the multitude to do evil, instead of battling for the truth, though it were solitary and alone? I can conceive of but one effect which such a sentiment must produce upon all noble and truth-loving men. It is to make them labor for the right with a zeal commensurate with the infinite baseness of the appeal by which they are urged to abandon it.
But I come now, Mr. Chairman, to the main topic of my remarks, which is a consideration of the character of the Fugitive Slave law, passed on the 18th day of September last.
The objections most generally urged against this law are of two kinds:
1st. That it is unconstitutional; and
2d. That, even if the framers of the constitution did leave an unguarded opening, through which such a law could be introduced without a breach in the structure of that instrument, still, that it is a cruel law, that it discards all those principles of evidence and forms of proceeding which have been devised by the wisdom of ages for the protection of innocence against power, and that in its whole scope and spirit it is in conflict with our fundamental ideas of human liberty.
It will be seen by this statement, that I here accept the constitution according to its commonly-received interpretation. There is a class of defenders of this law whom I wish to meet on their own ground. I do not, therefore, object here to the constitution as they understand it, but to the law. However much a man may reverence the constitution, though he may make it an idol and worship it, yet I mean to show him that this law is an unholy thing in its presence. I object, then, to the law as a departure from the constitution,--not a departure _towards_ despotism merely, but _into_ despotism. Admitting, what many deny, that when the constitution speaks of “persons held to service or labor,” it means slaves, and admitting that it provides for their reclamation when it says they “shall be delivered up on claim,” I still impeach the Fugitive Slave law for high crimes and misdemeanors against the spirit and the letter of that instrument.
On the question of the constitutionality of this law, the legal minds of the country are divided. It may not be easy to distribute opinions correctly, on this point, into their proper classes, and to decide upon their relative preponderance. If we include slave owners and those whose pecuniary interests connect them directly with slavery, and especially if to those we add a strong party who, from political associations and hopes, have surrendered themselves to a pro-slavery policy, probably the number, if not the weight, of opinion, is in favor of the constitutionality of the law. But if we gather the opinions of disinterested and unbiased men; of those who have no money to make or office to hope for through the triumph of the law, then I think the preponderance of opinion is decidedly the other way. I know it has been said by one prominent individual, that he has heard of no man, whose opinion was worth regarding, who denied the constitutionality of the law. Now, as it is a fact universally known, that gentlemen who have occupied and adorned the highest judicial stations in their respective states, together with many of the ablest lawyers in the whole country, have expressed opinions against the constitutionality of this law, I have but one single word of reply to a declaration so arrogant and insolent as this. That reply is, that on a great moral and political, as well as legal question,--a question that connects itself with ethics, as well as with partisan politics, and the success of old parties or the formation of new ones,--_integrity_ is as necessary to the formation of a sound opinion as _intelligence_.
I think, however, that one further remark should in candor be made, in regard to the difference of opinions held by honest men on this subject. The constitutionality or unconstitutionality of the Fugitive Slave law is not a question to be determined solely by any single and simple provision of the fundamental law. Numerous clauses in the constitution have a bearing upon it. It connects itself with contemporaneous history. It presents a case where commentators and expounders must appeal to precedents and analogies, and to general principles respecting the nature of government and the object of all law. It is therefore a question of construction and interpretation. And, what is a more important consideration still, it belongs emphatically to that class of cases where men, who have been trained under one class of institutions, and whose minds have been moulded and shaped by the universal prevalence of one set of opinions and one course of practice, may honestly come to one conclusion, while those who have grown up under adverse opinions and an adverse practice,--or rather, into whose minds adverse opinions and adverse practices have grown, until they have become a part of the very substance of those minds,--may honestly come to an opposite conclusion. We know, too, that in addition to the powerful influences of education and training, the general cast and structure of men’s minds predispose them to take one side or the other of great political and religious questions. Natural biases operate like a law of gravitation to sway different minds in different directions. When, therefore, a southern gentleman, into whose perceptions and reasonings and moral sentiments, the facts and the creed of slavery have been incorporating themselves ever since he was born, tells me that he believes even such a law as this to be constitutional, I can still concede the fulness of his integrity, however strongly I may dissent from the soundness of his opinion. It is a law that might be held constitutional by a bench of slaveholders, while it would be held unconstitutional by all the inhabitants of a free land. It is a law that might be held valid by the courts of Austria, while it would be held invalid by those of England. It is a law which the judges of Westminster Hall might have held valid in the time of the Stuarts, which they might and probably would have held invalid in the eighteenth century; and, in the nineteenth century, would certainly have reprobated and annulled.
My own opinion is, in view of the great principles of civil liberty out of which the constitution grew, and which it was designed to secure, that this law cannot be fairly and legitimately supported on constitutional grounds. I express this opinion because, after having formed it with careful deliberation, I am now bound to speak from it, and to act from it. I have read every argument, and every article in defence of the law, that I could find, from whatever source emanating. Nay, I have been more anxious to read the arguments made in its favor than the arguments against it; and I think I have seen a sound legal answer to all the former. As for any arrogant or supercilious dictum, either that the law is constitutional or that it is not constitutional, unaccompanied by any reason or any reference, all reflecting men must regard it as sheer insolence, come from what quarter it may.
Even should the supreme court of the United States declare the law to be constitutional, then, though we must acknowledge their decision, as to the point decided, to be the law of the land, until it is set aside, yet, without any disrespect to that tribunal, we may still adhere to our former opinion. We know how that court is constituted. A majority of its members are from slaveholding states. Independent, too, of all other considerations, they will feel a strong desire to maintain a former opinion, which was also given when a majority of its judges were from the south. We may, therefore, place our dissent on grounds which, two years ago, when the “Clayton compromise,” so called, was under discussion, were so well stated by a distinguished senator from Ohio, [Mr. CORWIN,]--grounds perfectly respectful on our part, and not derogatory to the court. He said,--
“It is a sad commentary upon the perfection of human reason, that, with but few exceptions, gentlemen coming from a slave state ... all eminent lawyers on this floor, from that section of the country, have agreed that you have no right to prohibit the introduction of slavery into Oregon, California, and New Mexico; while, on the other hand, there is not a man, with few exceptions, (and some highly respectable,) in the free states, learned and unlearned, clerical or lay, who has any pretensions to legal knowledge, but believes in his conscience that you have a right to prohibit slavery.... How is this? Can I have confidence in the supreme court of the United States, when my confidence fails in senators around me here? _Do I expect that the members of that body will be more careful than the senators from Georgia and South Carolina to form their opinions without any regard to selfish considerations?_”
Besides, the supreme court have already, as I will show, decided certain points in such a way that, if they maintain the Fugitive Slave law, they will be obliged to overrule those points; and it is more creditable to them to suppose they will overrule their decision in Prigg’s case, than to suppose they will overrule other decisions in other cases.
In the first place, I believe the constitution not only authorizes but requires a trial by jury, in the case of alleged fugitive slaves, when claimed in free states.
The constitution declares, “The right of the people to be secure in their persons,” “against unreasonable” “seizures, shall not be violated; and no warrant shall issue but upon probable cause, _supported by oath or affirmation_, and particularly describing” “the persons or things to be seized.”--_Amend._, Art. IV.
It also declares, that, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”--_Amend._, Art. VII.
And it also says, “No person shall be deprived of life, liberty, or property, without due process of law.” _Amend._, Art. V. And it is most important to observe that these words, “due process of law,” are held by all the authorities _to include the trial by jury_.--3 _Story’s Com._ 661; 2 _Inst._ 50, 51; 2 _Kent’s Com._ 10; 1 _Tucker’s Black. App._ 304-5.
That there may be no doubt about the meaning and force of these words, I quote the following passage from Chancellor Kent:--
“It may be received as a self-evident proposition, universally understood and acknowledged throughout the country, that no person can be taken or imprisoned, or disseized from his freehold, or liberties, or estate, or exiled, or condemned, or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers. The words, ‘by the law of the land,’ as used by the Magna Charta, in reference to this subject, are understood to mean ‘due process of law.’ That is, _by indictment or presentment of good and lawful men_.”--2 _Com._ 13.
Now, in most of the cases which will arise under the Fugitive Slave law, there will be a “seizure” under a warrant; and in _all_ the cases, the questions both of property and of liberty will necessarily be involved. In every case, the claimant will aver property in the respondent, and will seek to deprive him of his liberty. The respondent will deny the claim of property, and will seek to retain his liberty.
Now, suppose a man to have lived in Boston or New York for twenty years; to have contracted marriage; to have bought and sold; to have hired himself out to others, and to have hired others to serve him; to have pleaded and been impleaded in the courts; to have voted at elections, and to be, in all respects, as free by the constitutions of Massachusetts and New York as the governors of those states themselves; and suppose further, that this man is suddenly seized and taken before a commissioner, is adjudged the property of another man like himself, with no chance of revising the decision, or of having a new trial, is placed in duress, and then transported by force, and against his will, to a distant state, under a claim that he is a slave, and an adjudication that such claim is true,--suppose all this, I say, and then answer me this simple question, Has, or has not, such a man been “deprived of his liberty”? In other words, does such a man retain his liberty? As he is borne away by force, and against prayers, and tears, and struggles, does he remain free? Can a man be adjudged a slave; held, coerced, beaten as a slave; with all his powers and faculties of body and mind subdued and controlled as a slave’s, and yet possess or retain liberty? If such a proceeding does not deprive a man of his freedom, by what means can he be deprived of it? What _more_, or what _other thing_ would you do to deprive him of it? Would binding him out to serve for life deprive him of it? This declares that he owes service for life. Would imprisonment deprive him of it? This imprisons him, and makes the man his keeper who is interested to make that imprisonment perpetual in himself, and descendible to his children, and his children’s children forever.
Is not perpetual imprisonment of the nature and substance of punishment,--of the severest punishment? The constitution has provided that “cruel and unusual _punishments_ shall not be inflicted,” even for the perpetration of the worst of crimes; yet here is a case where the most cruel of punishments, or of privations, may be inflicted without even a charge of crime. And the argument is, that this form of punishment may constitutionally be inflicted, because it was so inconceivably atrocious and diabolical that the constitution did not prohibit it,--because the constitution only prohibited “cruel and unusual punishments” _for crimes_, and not for having a dark skin.
Does any one say that a victim of this law has not been “deprived” of his liberty because he may sue for it, and possibly recover it, in the courts of the state to which he is carried? I reply, that it would be just as good an answer to say, that he may possibly recover his liberty by escape, or possibly his master may emancipate him, or possibly a St. Domingo insurrection may break out, or possibly the walls of his prison-house may be shaken down by an earthquake, and he may go forth like Paul and Silas; and _therefore_ he is not deprived of his liberty by being enslaved. Neither of these events would have the slightest legal relation to the proceedings which did enslave him. Neither of them would be retroactive, undoing or annulling the past. Enslavement and liberty being incompatible, when he suffers the first, though but for an hour, he is deprived of the last. The moment he should arrive within the limits of a slave state, that moment he would be in the same condition as three million other fellow-bondmen; and it would be just as rational to say that they have never been deprived of liberty as that he has not. When our government made war upon Algiers, ransoming American captives from their horrible bondage and restoring them to their homes, did it annihilate the preëxisting fact that they had been enslaved? Did it enable or authorize the historian to say that they had never been _deprived of their liberty_? Had Algiers been “reännexed” as one of the states of this Union, could she have said, “We have not broken the constitution because these men are free again”? I affirm, then, that when a man in Massachusetts, who by the constitution of Massachusetts is free, is adjudged to be a slave, is transported as a slave, and held as a slave, in a southern state, though it be but for a single day, he is deprived of his liberty. That very thing is done to him which the constitution says shall not be done but by a jury of his peers.
But a question of PROPERTY is involved as well as a question of liberty. “In suits at common law,” says the constitution, “where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”
Now, sir, in regard to this important clause in the fundamental law, I propose to demonstrate the three following propositions:--
First; the claim, made before a competent magistrate, for a “person held to service or labor,” is, in view of this constitutional provision, a “suit.”
Second; it is a “suit at common law.”
Third; it is a suit at common law “where the value in controversy exceeds twenty dollars.”
As a law term, the lexicographers define the word “suit” to mean “an action or process for the recovery of a right or claim; legal application to a court for justice; prosecution of right before any tribunal;--as a civil _suit_, a criminal _suit_, a _suit_ in chancery.”
Blackstone says, “in England, the several _suits_, or remedial instruments of justice, are distinguished into three heads,--actions, personal, real, and mixed.”
“Suit” comes from “_secta_,” and _secta_ from _sequor_; and the phrase “to bring suit,” denoted anciently, to bring _secta_,--followers, or witnesses, to prove the plaintiff’s demand. The scope of the word is now enlarged, so that it embraces the written forms by which an action is instituted, as well as the proof which sustains it.
We are not, however, confined to the authority of the dictionary. The supreme court, in the case of _Cohens_ vs. _Virginia_, 6 Wheat. 407, where this very word “suit,” as it occurs in the constitution, was the subject of consideration, defined it as follows:--
“What is a _suit_? We understand it to be the prosecution, or pursuit, of some _claim_, demand, or request. In law language, it is the prosecution of some demand, in a court of justice. ‘The remedy for every species of wrong is,’ says Judge Blackstone, ‘the being put in possession of that right whereof the party injured is deprived.’ The instruments whereby this remedy is obtained, are a diversity of _suits_ and actions, which are defined by the Mirror to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta express it, in the words of Justinian, ‘_jus prosequendi in judicio quod alicui debetur_,’--(the form of prosecuting in trial, or judgment, what is due to any one.) Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which it has a right.
“To commence a suit, is to demand something by the institution of process in a court of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue that demand.”
Now let me take the different clauses of this definition, and see if every one of them does not necessarily include the demand made by a slave claimant against the alleged slave.
“We understand a suit,” say the court, “to be the prosecution or pursuit of some _claim_, demand, or request.” Here, then, according to the supreme court, a _suit_ is the prosecution of some _claim_; and, according to the very letter of the constitution, the fugitive slave is to be delivered up, on _claim_. The slave, then, can be constitutionally and legally “delivered up” in no other way than “on claim,” by “suit.”
Again, say the court: “In law language, it [a suit] is the prosecution of some demand in a court of justice.” When legal process is instituted for the recovery of a slave, is it not the prosecution of a demand? And will any one be rash enough to say that a man ostensibly free,--free according to all legal presumption,--can be “delivered” over to bondage for life, without the intervention of “a court of justice”?
To proceed with the opinion of the court: “The Mirror defines a suit to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta express it, in the words of Justinian, it is the form of prosecuting in trial, or judgment, what is due to any one.” Here service is alleged to be due; and the one who is said to owe that service is “prosecuted by trial and judgment,” that he may render the service claimed.
“To commence a suit is to demand something by the institution of process in a court of justice; and to prosecute the suit is, according to the common acceptation of language, to continue that demand.” In the appeal to a court for the possession of an alleged fugitive, is not something “demanded”? And what is the warrant that is issued for his arrest but the “institution of process”?
If any one, then, will show that a “claim” for an alleged fugitive, by process of law, to be followed up by proof in support of the claim, and to be consummated by judgment, is not a “suit,” he must show that it is not “the prosecution or support of a claim;” he must show that it is not “the prosecution of some demand in a court of justice;” he must show that it is not “the lawful demand of one’s right;” nor “the form of prosecuting in trial or judgment;” and finally, he must show that it is not “to demand something by the institution of process in a court of justice,” and then “to continue that demand” until judgment is rendered for or against him.
But should the claimant of a fugitive slave show any one of these four things, he would show himself the way out of court.
And this brings me to the _second_ proposition, namely,--
The claim for a person “held to service or labor” is, in view of the constitution, a “_suit at common law_.”
In a decision bearing directly on the right to a trial by jury, the supreme court has defined the phrase “suits at common law,” in special reference to its meaning in the seventh amendment to the constitution, where the right to such trial, “in suits at common law,” is secured. These are their words:--
“It is well known that in civil causes, in courts of equity and admiralty, juries do not intervene; and that courts of equity use the trial by jury only in extraordinary cases, to inform the conscience of the court. When, therefore, we find that the [seventh] amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By _common law_ they meant, what the constitution denominated in the third article, ‘law;’ not merely suits, which the _common_ law recognized among its old and settled proceedings; but suits, in which _legal_ rights were to be ascertained and determined, in contradistinction to those in which equitable rights alone were recognized, and equitable remedies were administered, or in which, as in the admiralty, a mixture of public law, and of maritime law and equity, was often found in the same suit. Probably there were few, if any states in the Union, in which some new legal remedies, differing from the old common law forms, were not in use; but in which, however, the trial by jury intervened, and the general regulations, in other respects, were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited, as examples, variously adopted and modified. _In a just sense, the amendment, then, may well he construed to embrace all suits, which are not of equity or admiralty jurisdiction_, WHATEVER MAY BE THE PECULIAR FORM WHICH THEY MAY ASSUME TO SETTLE LEGAL RIGHTS.”--_Parsons_ vs. _Bedford_, 3 Peters’s Rep. 456-57.
Here the court say, that the term “common law,” in the seventh amendment, meant what the constitution denominated in the third article, “law.” The word “law” which is here referred to, as contained in the third article, occurs in the following sentence: “The judicial power shall extend to all cases, in _law_ and equity, arising under this constitution, the laws of the United States,” &c. And the court declare that the constitutional right to a jury trial embraces “not merely suits, which the _common_ law recognized among its old and settled proceedings, but suits in which _legal_ rights were to be ascertained and determined,” in contradistinction from equity and admiralty cases.
And in the last sentence of the decision quoted, the court expressly say, that the seventh amendment embraces “_all suits which are not of equity or admiralty jurisdiction_, WHATEVER MAY BE THE PECULIAR FORM WHICH THEY MAY ASSUME TO SETTLE LEGAL RIGHTS.” The court say “ALL.” After excepting cases of equity and admiralty jurisdiction, they declare that the phrase, “suits at common law,” embraces _all_ the rest. They recognize no hybrid class, not included under one or another of these heads.
Now it has been proved above, that a warrant for the arrest of an alleged fugitive, together with the allegations and proofs under it, constitute a “suit.” And can any thing be more clear, than that a proceeding which decides the issue, whether a man “owes” or does not “owe;” which decides the issue, whether a man has “escaped,” or has not “escaped;” and which, as the legal consequence of these decisions, delivers one man into the custody of another as his slave, or enlarges one man from the custody of another because he is not his slave, is, “whatever peculiar form it may assume,” a proceeding “to settle a legal right,”--one of the highest and most important legal rights that appertain to a man? It is not, in legal language, a right “of equity or admiralty jurisdiction,” but exclusively and purely a _legal right_, and nothing else.
The court declare this to be so, _whatever peculiar form the process may assume_. But what gives peculiar pertinency and stringency to this decision of the court is, that at common law there was an original writ, called the writ _de homine replegiando_,--the writ of personal replevin, or for replevying a man, by which the question of property in a man might be determined. It was a writ which the party could sue out of right; one to be granted on motion, without showing cause, and which the court of chancery could not supersede. In the very language of the supreme court, it was a writ recognized by the common law, and is to be found “among its old and settled proceedings.” The form of it is contained in that great arsenal of common law writs, the _Registrum Brevium_.
“A man,” says Comyn, “may have a _homine replegiando_ for a negro, or for an Indian brought by him into England and detained from him; or it may be brought by an infant against his testamentary guardian; or _by a villein against his lord_.”--(Dig., title Imprisonment, L. 4.)
If this writ could be brought “for a negro,” or “for an Indian,” by a man who had introduced him into England, and from whom he had been detained; and if, on the other hand, it could be brought by the negro, or by the Indian to gain his freedom, as was clearly the case, then it follows that the question of a right to a man, as well as that of human freedom, was a question familiar to the ancient common law, and for the trial of which a well-known process existed “among its old and settled proceedings.” But this ancient writ, _de homine replegiando_, carries with it, as every body knows, the trial by jury, as much as an action of assault and battery, or of assumpsit on a promissory note.
I have always understood, that before the revolution, and before the framing of our constitution, Comyn’s Digest, from which the above citation is made, was a work of the highest authority. It must have been well known to all the lawyers in the convention. Could they have intended that the mere fact of claiming a man as a slave,--which claim might be made against a freeman as well as against a slave,--should be sufficient to deprive him of this ancient muniment of the subject’s liberty? It seems impossible!
But we are not left to the broad and general assertion, contained in the case of _Parsons_ vs. _Bedford_, that the seventh article of amendment embraces “all suits” not of equity or admiralty jurisdiction, whatever the peculiar form which they may assume to settle legal rights. Authority exists still more pointed and direct. In _Baker_ vs. _Riddle_, Mr. Justice Baldwin, one of the judges of the supreme court of the United States, held that it was not in the power of Congress to take away the right of trial by jury, as secured by the seventh amendment; neither,--
“1. By an organization of the courts in such a manner as not to secure it to suitors; nor,
“2. By authorizing the courts to exercise, or their assumption of, equity or admiralty jurisdiction over cases at law.”
“This amendment,” says he, “preserves the right of jury trial against any infringement by any department of the government.”--_Baldwin’s Rep._ 404.
Now, what are the tribunals created by the Fugitive Slave law but a new “organization of the courts”? or rather, the creation of new courts, “in such a manner as not to secure, [the right of trial by jury,] to suitors?” By it, Congress creates tribunals unknown to the common law, and purports to give them power over common law rights.
Having now proved, from the nature of the claim in controversy,--namely, the claim of one man to the personal services and the liberty of another man, and the counter claim of personal liberty and of self-ownership,--that the right in dispute between the claimant of an alleged fugitive, and the person claimed, is a common law right; and that _any_ legal process to determine this right, “whatever form it may assume,” is a “suit at common law,” it only remains, under this head, to establish my _third_ point, namely;
A claim to _any_ person, as one “held to service or labor,” always and necessarily presumes that “the value in controversy exceeds twenty dollars.”
On this point, direct authority may be found in the case of _Lee_ vs. _Lee_, 8 Peters’s Rep. 44. This was an appealed case, where by law no appeal could be taken unless “the value in controversy” should be “one thousand dollars or upwards.” It was objected that the appellants,--the petitioners for freedom,--were not worth a thousand dollars. But the court said,--
“The matter in dispute, in this case, is the freedom of the petitioners. The judgment of the court below is against their claim to freedom; the matter in dispute is, therefore, to the plaintiffs in error, the value of their freedom, _and this is not susceptible of a pecuniary valuation_. Had the judgment been in favor of the petitioners, and the writ of error brought by the party claiming to be the owner, the value of the slaves as _property_ would have been the matter in dispute, and affidavits might be admitted to ascertain such value. But affidavits estimating the value of freedom are entirely inadmissible, and no doubt is entertained of the jurisdiction of the court.”
Suppose there are two claimants for the same alleged fugitive? If his market value exceeds twenty dollars, both of them have a clear right to the trial by jury. And can it be that a man’s right to his own _freedom_ cannot be tried by a jury, when, if two men dispute about his _value_, each may claim the jury trial, and cannot be denied?
On the three points, then, 1. What constitutes a common law or “legal right;” 2. What constitutes “a suit at common law,” and 3. What constitutes “a value which exceeds twenty dollars,”--namely; the personal liberty of any human being, though he be an infant just born, or a drivelling idiot, or he be stretched upon his death bed with only another hour to breathe,--I trust I have made out a case which entitles a party to trial by jury under the constitution of the United States.
I might here rest the argument, feeling that, from authority and from reason, from the old and time-honored principles of the common law, as well as from those interpretations of the constitution which have been given by the supreme court, my conclusions are impregnable. But I proceed to notice some of the points taken on the other side; and if I shall occasionally advert to positions that are obviously too shallow and fallacious for discussion, it is only because I wish to omit nothing which any one may think of importance.
* * * * *
It is alleged that the whole force of the above argument, otherwise conclusive, is annulled, because a slave is no party to the constitution, is not under its protecting shield any more than a horse or an ox, and therefore, any provisions, however strong, securing the jury trial, are inapplicable to him. A slave, it is said, is not one of the “people” by whom and for whom the constitution was formed. He is an outlaw, and an outcast. He has no inherent or inalienable rights _as a man_. What he has, he has _ex gratia_, by the good will of those who own him, body and soul, and who are graciously pleased to forego some of their legal rights from generosity in themselves, and not from justice to him.
Now, as it seems to me, a most obvious principle confutes this argument utterly. By the laws of the free states, we know no such being as a slave. Our courts, in their functions as state courts, do not understand the meaning of the word _slave_. To talk to them in that capacity about a slave or slavery, is talking to them in an unknown tongue. In the eye of the legislators of the free states, and in the eye of the courts of the free states, so far as their domestic polity is concerned, there can be no such creature as a slave. The constitution of every free state in this Union must be first altered, before any such being as a slave, or any such condition as slavery, can be recognized under them, as state authorities.
So the constitution of the United States creates no slaves, and can create none. Nor has it power to establish the condition of slavery any where. And I hold further, that if the government of the United States, by escheat, by purchase, by execution against a debtor, or in any other way, should become possessed of a slave, that moment he would be free. The government of the United States can neither hold a slave, nor make valid title to a slave by sale. It is a government whose powers consist of the grants that have been made to it; and nowhere, by no competent party, has any such grant ever been made.
The relation of the government of the United States to slavery consists in this, and in this alone: that when this government was created, slavery existed in a portion of the states; and by certain provisions in the constitution, the existence of this slavery was recognized, and certain rights and duties in relation to it were respectively acknowledged and assumed. But the government of the United States has no more power to turn a freemen in a free state into a slave than it has to turn a slave in a slave state into a freeman.
The officers of the state government being sworn to support the constitution of the United States, the governments of the free states are implicated indirectly in the matter of slavery, as the government of the United States is directly, and not otherwise.
Both by the constitution of the United States, then, and by the constitutions of all the free states, every man found within the limits of a free state is _prima facie_ FREE. No matter what complexion he may wear, or what language he may speak, he is a free man UNTIL some other civil condition is proved upon him, or until he forfeits his freedom by crime. Every man, therefore, in any one of the free states of this Union, has a right to stand upon this legal presumption, and to claim all the privileges and immunities that grow out of it _until_ his presumed freedom is wrested from him by legal proof. It is the most cruel of sophisms to say, that because a man is _claimed_ as a slave, he is not under the protection of the constitution, and then _to prescribe a base mode of trial for him, by which he can be proved the thing he is claimed for_. On the subject of freedom or slavery, we of the free states know of but one class of men living among us. That class is free. There is no such class as slaves known to our laws. Nor is there any intermediate class, who may be presumed to be slaves on account of their color, or who may be proved to be slaves by less evidence, or by an inferior kind of evidence, because of color.
No axiom is more universal or indisputable, than that the right to freedom in a free state, and the right to be held and treated by the courts as a freeman, has no relation to complexion. If, then, these rights have no relation to complexion, _all_ white men may be arbitrarily presumed to be slaves, and be deprived of the form of trial, secured to them by the constitution, just as well as any colored man can be. The former may just as well be proved to be slaves, on dangerous, or on inferior, or on insufficient evidence, as the latter. No; the liberty to which every man, of whatever color, in a free state, is _prima facie_ entitled, invests him with its protection, and this investiture cannot be stripped from him but by the judgment of his peers or the law of the land,--which, as we have before seen, means trial by jury.
Any other interpretation assumes this as a postulate, namely, that there is a higher or surer kind of trial applicable to freemen, and a lower or inferior mode of proceeding applicable to slaves. And the inhuman inference from this assumption is, that any man against whom a ten-dollar commissioner may issue a warrant as a possible slave, shall forthwith be subjected to the slave’s mode of trial, and be utterly deprived of the freeman’s mode of trial; or, at the best, that he shall be sent away a thousand miles, into another jurisdiction, there only to have the slave’s mode of trial. According to this form of proceeding, the first thing which the commissioner says to his victim is, “Being a slave, you must be tried in a summary manner.” “But I am not a slave,” asseverates the respondent, “and I claim to be tried by my peers under the guaranties of the constitution.” “You are no party to the constitution,” rejoins the commissioner, “and, therefore, not entitled to its shelter. The constitution was made by the people, and for the people, and you are not of them.” Then says the victim, “If I could have the trial due to a freeman, I could prove myself a freeman; but under the form of trial awarded to a slave, I may be adjudged a slave; so that my fate is made to depend not upon my rights, but upon your form of proceeding.” “Even if so,” retorts the mercenary minister of the law, “it is but an imperfection incident to human institutions. Is not one man’s property sometimes taken to pay another man’s debts? and is not one man sometimes executed for another man’s murder? Why, then, should the courts of justice be arraigned, if a freeman, instead of a slave, is sometimes consigned to bondage?”
Sir, the unmistakable distinction lies here; that if there be any difference between the kind or degree of proof applicable to a freeman and that applicable to a slave, then, in a free state, you must first prove a man to be a slave by freeman’s proof. If cast on such proof, then, and not till then, does he become the subject of slave proof. Any thing else under the form of justice is a mockery of justice. No man will say that the “claim” imposes any disability upon the person claimed, or takes away from him any rights. A man who has a presumptive right to his liberty, has a perfect right to all the means to prove it. The “claim” imposes no obligation to deliver up, but the proof under the claim; and this proof in a case of “life, liberty, or property,” is to be judged of by a jury. The real question is, _who_ is to be delivered up, a slave or a freeman? If the person arrested is prejudged to be a slave, then there is no need of a trial at all. If he is _prima facie_ a freeman, then he is entitled to the most perfect mode of trial.
By the theory, I believe, of all the slave states but one, every person of maternal African descent is presumed to be a slave. As such, his civil condition is fixed, special tribunals are constituted to try him, and he is subjected to rules of evidence unknown to the common law and never applied to freemen. Now it would be but the same kind of legal absurdity and preposterousness, for the presumptive slave in a slave state, to demand the form of trial, the tribunal, and the evidence, which there appertain to a freeman, as it is to subject the presumptive freeman in a free state, to the form of trial, the tribunal, and the evidence, which appertain to a slave.
The iniquity of the law is, that it enables a perjured or fictitious slave owner, on proofs most easily fabricated, to seize any individual in a free state, and to _prejudge_ him to be a slave, by the very form of trial which this law authorizes. On the contrary, nothing can be more clear, than that the civil condition or _status_ of every man found in a free state is that of a free man. His living under a free constitution, without any thing more, invests him _prima facie_ with this character. Until divested of this character, he continues presumptively a free man. While such, he is entitled to every security which the constitution gives to a free man. How then can he be subjected to a trial which reverses the whole law of presumption in favor of freedom, and which presumes that he is a slave to begin with? This is not only anticipating the judgment at the commencement of the proceedings, but it is anticipating the worst judgment that can be passed; and, by anticipating, procuring it; as prophecies often procure their own fulfilment.
I put this case, and I challenge an answer that shall refute or admit my conclusion: If any one man in a free state can be seized and suddenly transported into bondage under this law, _then every other man also can be; and there is not a single person left in any free state who has a right to a trial by jury to save him from slavery_. I am not now speaking of the special danger to each particular individual, but of the principle that embraces us all. Under the most oppressive of tyrannies there are persons who are not in danger. But under such a law as this, who can tell what may happen to men arrested away from home, to unprotected women, and to helpless children? Do you say that a public sentiment and a public watchfulness exist, which would protect the whites, the female, and the child? I reply, that we possess our right to protection under the constitution and laws, and are not to be turned over to public sentiment or public watchfulness in order to enjoy it.
Suppose an analogous law to be passed respecting debtor and creditor. Suppose a law to provide some new mode of proceeding by which the indebtedness of a defendant should be so far presumed as to subject him to an inferior kind of defence, or to transfer his case to another kind of tribunal, as from jurors to arbitrators, to be selected by the plaintiff himself. Who is there, though through all his life he had fulfilled the apostolic injunction to “owe no man any thing,” that might not be cast in an action that would strip him of all his fortune?
The law punishes murder by death. Could it know with omniscient certainty, beforehand, _who is a murderer_, it might take from him the trial by jury without offence to the eternal principles of justice. It is because the law cannot know with infallible certainty, beforehand, who is a murderer, that it provides the trial by jury to determine the question. Just so, because human tribunals cannot know with certainty who is a slave and who is free, the constitution gives the trial by jury, before any man in a free state shall be deprived of his freedom. And the argument, that if a man be wrongfully consigned to bondage he may be afterwards restored to freedom, is as audacious and as tyrannical as to say that an innocent man may be hanged and sent into another world as a felon, because sometimes the dead have been restored to life.
It is no answer to this view of the case, to say that all processes, whether civil or criminal, are initiated on the supposition that a pecuniary liability exists, or that a wrong has been done. Every body knows that no presumption of this kind follows the plaintiff, or the government, into court. When there, in the presence of the law, the plaintiff must establish his claim affirmatively. The possible debtor is no longer a debtor. So the government must prove the guilt of the man it has arraigned. The possible criminal is no longer a criminal. In the eye of the law, he is as innocent as the unborn child. When they claim the trial by jury, neither plaintiff nor prosecutor can say, You are not entitled to this form of trial, because you _are_ presumptively a debtor, or presumptively an offender. Yet this is precisely, and _in totidem verbis_, what the pro-slavery argument says to the respondent when he is brought before the commissioner and put in peril of his freedom. In both the cases supposed, such a doctrine would take away a man’s rights in the most odious manner, by taking away the legitimate and constitutional means of defending them.
For the purpose of determining by suit or by prosecution whether a man is a debtor or is an offender, a suit or a prosecution may be commenced against him, but never for the purpose of raising a presumption that he is either the one or the other, or to deprive him of any evidence to which an unindebted or an innocent man is entitled, or to change the tribunal which is to try the question of indebtedness or of guilt. If attachment on mesne process, if even indictment by the grand inquest for the county, does not deprive a man of his right to a trial by jury, how can so great a natural wrong be constitutionally inflicted by the warrant of a commissioner?
The presumption that a colored man is a free man in the free states, is just as strong as that a man of pure, unmixed, Anglo-Saxon blood is a free man in the slave states; and would they tolerate the doctrine for a moment that any perfectly pure-blooded white person could be transformed into a slave, and as such sent from his own state into another, under this law? Nay more; would any slave claimant at the south be allowed to go _into a slave state_, and seize upon a pretended fugitive whom another man might claim to own, under such a process as is now sufficient, _in a free state_, to authorize the taking and carrying away of the same individual?
But to the argument, that the constitution and the law of 1850 apply only to slaves, and that because slaves are not parties to the constitution they are not under its protection, and so not included in the provision for jury trial, there is another answer perfectly fatal. It is this: the constitution does not enumerate the various classes of criminals who shall be entitled to trial by jury; but with the exception of cases of impeachment, and cases in the military and naval service, it expressly declares as follows: “The trial of all crimes shall be by jury.” And also, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury,” &c. The right, therefore, is not made to depend upon the _classes of persons_ on trial, but upon the nature of the charge brought against them. The constitution does not say that freemen shall be tried in one way and slaves in another; but its language is, “all crimes,” and “all criminal prosecutions;” so that it embraces every person _who is prosecuted_, whether free or slave, citizen or foreigner, Jew or Gentile. If an Englishman or a Frenchman were to be tried here for murder, how would the whole world deride the suggestion that he should not have a jury trial because he is a foreigner,--because he is not one of the “people,” and so not a party to the constitution!
So the constitution does not say, in suits between merchant and merchant, or between landlord and tenant, and so forth, “the right of trial by jury shall be preserved;” but it says, “_In suits at common law_, where the value in controversy shall exceed twenty dollars.” The right is not determined by the character of the litigants, but by the nature of the action. The constitution does not care who the parties are,--man, woman, bond or free,--it is all the same. As soon as parties appear upon the record, the right to trial by jury attaches. The _suit_, and not the _civil condition_ of the litigants who instituted or who defend it, tests and determines the jury question.
In the case of _Lee_ vs. _Lee_, before cited, the law allowed an appeal only in case the sum in controversy should amount to one thousand dollars. The appellant was of African descent, and therefore, within that jurisdiction, presumptively a slave; not presumptively a freeman, as every man is in a free state; and, if a slave, then he could own no property; for, by the cruel law of slavery, every master may rob his slave legally of all that he earns, or finds, or otherwise receives. Yet the supreme court sustained the appeal. Why was not so astute an exception as this then taken?--an exception which, if they have a bar in Pandemonium, would have done honor to one of its counsellors. Why was it not said that a slave was no party to the law, and therefore not entitled to its benefits? No reason can be assigned why a slave is not as much under the protection of a constitution made for the “people,” as under the protection of a law made for the “people.” Yet here, even in the case of a presumptive slave, a right was acknowledged, which some freemen, in free states, deny to presumptive freemen.
I have here been combating the argument, that because the Fugitive Slave law is aimed at slaves, no freeman has any ground of complaint against it, even though he should be converted into a chattel under it. He must console himself under the doom of interminable bondage, with the patriotic and pious reflection that he is only suffering, as an exception, to prove the general excellence of the law; and he must leave this consolation also to his enslaved children. For, in his case, it is said that eternal slavery is only one of those exceptions in the working of the law which proves the rule of its general excellence. This argument I hold to be eminently sophistical and cruelly oppressive. But if any one believes it to be a sound argument, then I hold him to all fair deductions resulting from it,--of which the following is clearly one:--
On the same ground on which Congress passes a law for escaped slaves, let every free state pass a law for resident freemen. The presumption in every free state being, that all men within its borders are free, let every such state give the trial by jury, in all cases in which personal liberty is involved, to every one who shall ask for it, and who has not once had it in a litigation with the same party, on the same subject-matter. According to the argument I have been considering, no slaveholder can complain of such a law; for, by its very terms, it applies only to freemen. The law of Congress applying only to slaves, and the supposed state law applying only to freemen, there is no conflict between them. And if, by accident or mistake, any real slave should take shelter under such a state law, and should escape a life of horrible bondage, it will be only one of those mistakes which may arise under the purest administration of justice. It will answer quite as well as its counterpart case, to stand as one of those exceptions in the working of a rule which prove its general excellence. If the occasional subjection of a freeman instead of a slave, to all the horrors of bondage, constitutes no valid objection to the United States law, then, surely, the occasional enfranchisement of a slave from a bondage that was always unjust and cruel, should constitute no objection to the law of the free state. If this Fugitive Slave law continues for a single year, I hope every free state will pass a law inflicting condign punishment upon every man who directly or indirectly assists in sending any man into southern bondage, unless he can prove before a jury that the man so sent was a slave.
So far, I have considered the question, whether a fair interpretation of the constitution does not secure the jury trial in every free state, to an alleged fugitive, and empower him to demand it as a matter of right.
But this is a strange question to discuss in a republican government. The proper question is, not whether the constitution expressly _demands_ the jury trial, but whether it will, by any fair implication, _allow_ it. The only point which a republican judge or citizen can, with decency, make on this subject is, Does the constitution forbid, prohibit, deny, such trial?--for, if it does not, then the jury should be granted of course. In a free country, under a free government, where the idea has become traditional, where the doctrine has become a household doctrine, that the trial by jury is the palladium of our civil and religious liberties, is it not amazing that we should find men who seem eager to avoid this form of trial, rather than zealous to grasp it? It is the saddest of spectacles; it argues the most mournful degeneracy, to see the children at this early day, from grovelling notions of ambition and of wealth, abandoning those noble principles of freedom for which their fathers so lately shed their blood. Wherever the constitution allows the trial by jury, in a matter of human liberty, in Heaven’s name let us have it. Let Russia and Austria curtail and deny this privilege of freemen; let the tyrant, and the tyrant’s minions among ourselves, explore the musty records of darker times, to find precedents against it; let them strive, by their shallow sophistries and plausibilities, to gloss over this ravishing of liberty and life from beings created in the image of God; but let every true republican, whenever, in the disposal of these momentous interests, the constitution will, by fair construction, sanction it, cling to the trial by jury, as to the only plank that will save him,--ay, the only one that will save the human race,--from being again ingulfed in the vortex of despotism. The enemy of the trial by jury, wherever human liberty is concerned, is the enemy of human liberty and of the human race. The friends of a repeal of this law, then, need not discuss the question whether the constitution does expressly confer the right of trial by jury upon the alleged fugitive, for it is enough for them if the constitution does not take it away.
It is worthy of remark, that in both of the bankrupt laws passed by the United States, it was expressly provided, that when the commissioners should declare any person to be a bankrupt, he should have the right to a trial by jury to annul their decision. Thus, when the law proposed, not to appropriate a man’s property, but merely to enable his creditors to receive it in payment of their debts, the jury trial was secured to him; but here, where the direct purpose is to strip a man of his liberty, and of his property in himself, the jury trial is denied.
This seems an appropriate place to consider the further irrelevant suggestion, sometimes obtruded, namely, that an alleged fugitive is not deprived of a trial by jury, because he may have it in the state to which he is carried.
Here the pro-slavery advocate admits, at least for argument’s sake, that the alleged fugitive has a right, at some time, and some where, to the jury trial. If so, then there are numerous and powerful reasons why this trial should be had in the state in which he is found, rather than in that to which he may be transported. I will advert to a few of these reasons.
1. Slaves are held to be personal property. Trover lies for their value where they have been unlawfully converted. Trespass is the remedy for an injury done to them. According to the laws of all the slave states, they are the subject of larceny. Suits to recover them, or to recover damages for an injury done to them, are personal actions; and in personal actions it is required, by all the precedents and all the analogies of the common law, that the action should be tried in the jurisdiction where the writ is served. By the common law, personal actions are transitory. They are to be brought where the defendant resides; or, at least, where the property which is claimed lies. In the case of an alleged slave, both the defendant and the property are where _he_ is found. According to the usages and principles of the common law, therefore, the trial should be there.
2. Before trial and judgment, the parties are like any other parties before the court, or they should be so. The claimant stands upon the merits of his claim; the respondent upon those of his defence. It may be inconvenient for a Texan claimant to prove his right to an alleged fugitive in Massachusetts; but it will be indefinitely more inconvenient for a citizen of Massachusetts to prove his freedom in Texas. If the trial is in Massachusetts, and the plaintiff prevails, he takes immediate possession of his slave, and is invested at once with all the rights which the rigors of the slave law so abundantly give. But if the trial is in Texas, whither the defendant has been forcibly exiled, and there _he_ prevails, who is to reimburse or recompense him for his intermediate bondage; for being dragged from his home; torn from wife, children, and friends; for being plunged, perhaps for years, into the hell of slavery itself, with all the untold agonies of an apprehended slavery for life?
What Judge Story says respecting the right of all persons who are accused of crime to be tried by a “jury of the state and district wherein the crime shall have been committed,” applies with full force to a trial for liberty. “The object of this clause,” says he, “is to secure the party accused from _being dragged to trial in some distant state_, away from his friends, and witnesses, and neighborhood.” “Besides this,” he continues, “a trial in a distant state or territory might subject the party to the most oppressive expenses, or perhaps even to the inability of procuring the proper witnesses to establish his innocence.” (3 _Com_. 654.) For “innocence” read _liberty_, and the argument in behalf of the alleged criminal becomes applicable to the alleged fugitive. And why should the alleged fugitive be treated less mercifully than the alleged felon? The law is unspeakably rigorous in the case of an alleged fugitive, but softens into mercy over an alleged pirate or murderer.
If the trial, then, is where all the practice and principles of the common law indicate that it should be, no great or irreparable injury is done; no inconvenience even is suffered beyond that which is always suffered in enforcing a claim in a foreign and distant jurisdiction. But if a freemen is carried away, a grievous and intolerable wrong is done; a wound is inflicted which mortal medicaments cannot heal, nor the longest continued punishment of the malefactor ever expiate.
3. By transferring the trial to the place of the claimant’s domicile, an effective, and, as it seems to me, a most iniquitous advantage is given him, in regard to evidence, while the respondent is subjected to cruel disabilities. By the laws of all but one or two of the slave states, persons of African descent, whether slave or free, are declared incompetent witnesses against white men. The freeman, then, by being removed as a fugitive into a slave state, may lose his evidence, which, under such circumstances, is the loss of his liberty. This violation, therefore, of the principles of the common law, in regard to the place of trial, is, to him, of the most momentous consequence. It is not true, then, in any just sense, that the trial by jury is still “preserved” to the alleged fugitive, notwithstanding his removal to a slave state. The common law trial, as inclusive of the right to adduce common law evidence, is not “preserved.”
4. But not only is the evidence different, but, in some of the slave states, _the law itself is different_; so that one man may carry another by force into a jurisdiction where the law will account him a slave, when, had he been tried where he was found, the law would declare him free,--the facts in both cases being the same.
Take the law of Kentucky, for instance,--and I refer to this state because its slave code is of a milder type than that of most of the Southern States, its dreadful rigors being mitigated by an infusion of more humanity.
By the laws of Kentucky, a master may carry a slave _in transitu_, through a free state, or he may allow his slave to go temporarily into a free state, without a forfeiture of the legal right to hold him. _Graham_ vs. _Strader & Gorman_, 5 Ben. Munroe, 173, (1844;) _Davis_ vs. _Tingle et al._, 8 Ben. Munroe, 545, (1848;) _Collins_ vs. _America_, 9 Ben. Munroe, 565, (1849;) _Bushe’s Reps._ vs. _White_, 3 Munroe, 104; _Rankin_ vs. _Lydia_, 2 A. K. Marshall, 468, (1820.)
In Massachusetts certainly, and I suppose in most of the Northern States, all such cases would be decided in favor of the respondent.[20]
Now, what greater outrage can be inflicted upon a man than to seize, and bind, and carry him into a foreign jurisdiction, where not only is the evidence different, by which his rights may be proved, but where the law also is different, by which his rights are to be adjudicated. In Holland, the killing of a stork once was, if it be not now, punishable with death; because this bird devours the animals that would otherwise bore through and undermine its ocean-barring dikes. In a neighboring country, the killing of a stork may not be merely blameless, but praiseworthy. What an atrocity it would be to seize a man in the latter country, and carry him to Holland to be tried and executed for doing an act which, according to the law of the place where he had a right to be tried, may have been not only innocent, but laudable! I leave you, sir, to make the application.
5. But what must shock every man who possesses any just appreciation of the value of human liberty, or has any just perception of the principles on which it is founded, is, that under the Fugitive Slave law, the plaintiff gets possession and control not only of the chattel or article of property claimed, but of the defendant himself. He gets command, not only of the thing in litigation, but of the body and soul of the litigant. A Boston or New York merchant would consider it a grievous hardship, if a southern adventurer could go there and seize upon all his property, transport it to Mobile, or New Orleans, and compel the owner to follow it and try title to it, in the place of the captor’s domicile. Still more grievous would the hardship become, if, under the new jurisdiction, the defendant might be deprived of the evidence which, at home, would be decisive of his rights, or find himself controlled by adverse laws which he never had helped to frame. But what an extreme of barbarous tyranny would it be, if, beyond all these enormities, the southern plaintiff could seize him too,--the defendant himself,--the alleged debtor,--and grasp him in his own iron hand, obtaining supreme control over his body by force, and over his mind by fear; could command his powers of locomotion, so that he could go only where the will of his master would permit; could control his speech and his vision, so that he could consult with no counsel, and could see no friend but such as were in his master’s pay; and, to enforce his authority, could imprison him, and starve him, and scourge him, and mutilate him, if he but so much as uttered a whisper that he had a right to have a trial by his country, or opened his lips in prayer to God to break the fetters of his iniquitous bondage!
To tamper with the witnesses of the adverse party, or endeavor to suborn his counsel to violate their duty to their client, is not only an act of the grossest baseness, but would subject the offender to penal retribution. Yet what need would there ever be of corrupting witnesses or suborning counsel, if a party could get bodily possession and absolute control of his antagonist himself?
Does not every one see that, in ninety-nine cases in a hundred, a control over the defendant’s person and will would be a control over his case? His rights would be lost in his enforced disability to defend them. You might as well put out a man’s eyes, and then talk of his right in the common sunlight. In Baltimore, or Louisville, a kidnapped freeman might find an opportunity of self-redemption; but such a captive will never be carried to Baltimore or Louisville. He will be sent to some interior region, perhaps fifty miles from any court, or the residence of any counsel, where he may never have an opportunity to speak to a white man unless it be to a taskmaster, who is paid to guard and to silence him.
The authors of the Federalist deemed the principle of excluding an interested party from all power of deciding his own cause to be so important, that they laid down the following doctrine: “No man ought certainly to be a judge in his own cause, or in any cause, in respect to which he has the least interest or bias.” (No. 80.) Yet the only chance which the Fugitive Slave law allows to a freeman, when carried into bondage, is that which he may exercise while under the absolute control of his robber master.
But more than this: the law imposes no obligation upon the claimant to carry his victim to the state he is charged to have escaped from. A man charged to have escaped from Texas may be carried to Florida. Nay, he may not be carried to any state in this Union; but may be sent to Cuba or Brazil; beyond hope, and into the outer darkness of despair.
All the arguments which I have ever heard, or seen, on this point, gratuitously _assume_, that the persons reclaimed and transported will have an honest master, be surrounded by kind friends, and have a lawyer at hand whom they can consult with every day, and money in their pockets to fee him. Would such be the case of a kidnapped freeman? Would a wretch, vile enough to rob a man of his liberty, carry him five hundred or a thousand miles, and then go to a shire town during a session of the court, and give his pretended slave a purse of money with which to fee a lawyer for investigating his right to freedom? No! the man who knows, or suspects, that he has seized a freeman, or that his victim even believes himself to be a freeman, and will put the claimant to the trouble and expense of a trial, will plunge that freeman into the abyss of bondage, where no ray of hope may ever reach him, and where his voice will be hushed as in the silence of death.
Another objection to the Fugitive Slave law is, that it confers judicial power upon persons who are not judges. Here we are not left to inference or construction, but can stand on the plain words of the constitution. The third article declares,--
“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.”--_Art._ III. § 1.
Here I hold it to be clear beyond dispute, that the “judges” mentioned in the second sentence of the above section are the members of the “supreme court” and “inferior courts” mentioned in the first section, and no other. If so, then there can be no doubt about the tenure of their office, and the mode of their appointment, compensation, and removal.
By sec. 2, of Art. II., the President “shall nominate, and by and with the advice and consent of the Senate shall appoint,” “judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.”
The appointment of _no_ judge of _any_ court is “otherwise provided for in the constitution;” and therefore the appointment of _all_ the judges in whom “the judicial power of the United States is vested,” belongs by the constitution to the President and Senate; and this “judicial power” cannot be delegated to, nor exercised by, any persons not so appointed.
The courts may appoint “inferior officers,” such as clerks, criers, or masters in chancery; but these are not “judges;” nor would any one of them singly, nor any number of them associated together, constitute a “court,” within the meaning of the first section of the third article. Were such the case, then _they_ might have power to appoint “inferior officers,” and so on, by sub-delegation, indefinitely.
The constitution also defines what it means by “judicial power.” It says, “The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States,” &c.
Now, my objection is, that the Fugitive Slave law requires the creation of a large body of officers who are not “judges,” but whom it purports to invest with “judicial powers.”
They are not “judges,” because they are not nominated by the President and confirmed by the Senate, as all “judges” must be.
They are not “judges” again, because, if they were, they must hold their offices “during good behavior.” But the commissioners may be unmade on the day they are made. “Judges” can be removed only by conviction, on impeachment. Commissioners may be removed by the court that appointed them. Not the President, nor the Senate, nor both together, can remove a judge, unless by the initiatory and concurrent action of the House of Representatives. An “inferior court” can eject a commissioner without notice.
Even if Congress had declared, by express words, that the commissioners appointed by the circuit and district courts should be taken and held to be “judges,” it would not make them so; for Congress cannot delegate any power to judges to appoint judges, nor to courts to make courts. If Congress could not do this by express enactment, how can it do so by implication?
Commissioners are not “judges,” also, because no person can be a “judge” who is not entitled, “at stated times, to receive for his services a compensation which shall not be diminished during his continuance in office.”
This provision necessitates the conclusion that all “judges” must be entitled to salaries payable periodically. These salaries are in no case to depend upon the _amount_ or the _quality_ of their labors,--far less, if possible, upon their deciding the cases that are brought before them for the plaintiff or for the defendant. One “judge” may have an enviable reputation for talent and integrity, and thus attract suitors to his court. Another may be as corrupt as Lord Jeffries, and repel all honest litigants from him. But, in either case, he has a right to a compensation which shall not be diminished during his continuance in office. Each year gives him a definite, unchanged sum of money.
But the commissioner is paid by fees, and the amount of his fees depends partly upon the number of cases he decides, and partly also upon the party in whose favor he decides. If he decides that a man is free, he receives five dollars. If he decides that he is a slave, he receives ten. If the commissioner is acceptable to slave hunters, suitors multiply. If obnoxious to them, his docket is bare of a case. He is entitled to his compensation, not “at stated times,” but on the determination of each case. His compensation may be diminished, or it may cease altogether, during his continuance in office. Each year does not give him any definite, unchanged sum of money.
The “judge” must be paid by the government, and is independent of all the parties before his court. The commissioner is never to be paid by the government, but is wholly dependent for his fees upon the claimant whose case he tries. The government guaranties the payment of the “judge,” but it can never inquire or know whether the commissioner be paid or not.
By the sixth article of the constitution, all “judicial officers” must make oath or affirmation that they will support the constitution. But there is no law requiring these commissioners to take an oath; and as a matter of practice, in some parts of the country at least, it is known that they take no such oath.
Now, by the act, a portion of the “judicial power” of the United States, the _whole_ of which is, by the constitution, vested in one “supreme court,” and in “inferior courts,” is given to the commissioners. The fourth section says they “shall have concurrent _jurisdiction_ with the judges of the circuit and district courts of the United States.” If the power of these courts, in the premises, is judicial, then the power of the commissioners, being the same, is judicial.
The attorney-general of the United States, in a written opinion, given by command of the President, declares that this power, so given to the commissioners, is judicial. The following are his words:--
“These officers, [the commissioners,] and each of them, have judicial power, and jurisdiction to hear, examine, and decide the case.”
“The certificate to be granted to the owner is to be regarded as the act and judgment of a judicial tribunal having competent jurisdiction.”
“Congress has constituted a tribunal with exclusive jurisdiction to determine summarily, and without appeal, who are fugitives from service. The judgment of the tribunal created by this act is conclusive upon all tribunals.”
Such is the opinion of the attorney-general of the United States, given upon the precise point, by order of the President of the United States.
But the point needed no authority to sustain it. It results inevitably from the very nature of the power conferred by the law. The decision of the commissioner is to be _final_ and _conclusive_, and the subject-matter of the decision is liberty and property. The case cannot be reheard or reëxamined by any judge, or by any court, of any state, or of the United States. The decision acts _in rem_ and _in personam_. It delivers the property to the claimant, and puts the body of the defendant into his custody. From that moment, if the law has any validity, the defendant is the slave of the plaintiff, by force of a “judicial” decision. The plaintiff, thenceforth, may control his actions, his words, his food, his sleep. If he chooses to exercise his authority in such a way, he can order his victim to carry him home on his back, and make him bear the loathsome burden of his person as well as of his will. Now, to say that the power which effects these results is not a judicial power, is to do violence to language, and to commit a fraud upon the inherent nature of ideas. In no case known to the common law, or indeed to any other law, is a plaintiff invested with _full_ rights, except after _final_ judgment.
If, then, this power is a “judicial power,” the constitution peremptorily forbids that it should be vested any where but in a “court,” whose “judges” are nominated, confirmed, sworn, hold office, are paid, and are removable, according to its requirements. Look at the constitutional distribution of powers. By the first article, all legislative power “shall be vested in a Congress.” By the second article, the “executive power shall be vested in a President.” And by the third article, “the judicial power shall be vested” in the courts. And it was just as competent for Congress to invest “commissioners” with supreme “executive” or “legislative” power, as to vest them with “judicial” power.
If, by good fortune, or by miraculous interposition, a captured freeman should afterwards obtain a hearing in a court of the state to which he had been carried, such hearing would, in no sense, be in the nature of a review of the former case, either by appeal, writ of error, mandamus, or certiorari. It would be by the institution of _another_ suit, under _another_ government. The relation of the parties would be reversed. The respondent who was kidnapped must be plaintiff, the plaintiff kidnapper, or some one claiming under him, must be defendant. Were the various _possessory_ writs known to the English common law any the less “suits at common law”? or were the courts that tried them any the less _judicial_ tribunals, because a _writ of right_ could be afterwards brought, in which the previous judgments could not be pleaded in bar, and would be neither estoppel nor proof of title?
But to avoid the force of this, it has been said, that the proceedings before the commissioner do not constitute a “case,” within the meaning of the second section of the third article, which extends the “judicial power” of the United States to all “cases” in law and equity. Instead of being a “case,” it is said to be only a summary inquiry, designed to operate as a condition for executive action, in order to accomplish a special and limited object; like the inquiry, who are rightful claimants of money held by the government, under a treaty, and how much belongs to each one. It is also said, that if a construction so literal is to be put upon the words “judicial power,” then no master in chancery could act in behalf of the courts in equity cases; no commissioner of bankruptcy could be appointed under a bankrupt law, &c.
In answer to the first position, that the proceedings for the reclamation of fugitive slaves do not constitute “a case,” we have the most explicit declaration of the supreme court in more _cases_ than one. In Prigg’s case, 16 Peters, 616, the court say,--
“It is plain, then, that while a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person; and inasmuch as the right is a right of property capable of being recognized, and asserted by proceedings before a court of justice, between parties adverse to each other, it 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.”
“A CASE in law or equity consists of the right of the one party as well as of the other, and may truly be said to arise under the constitution, or a law of the United States, _whenever its correct decision depends_ ON THE CONSTRUCTION OF EITHER.”--_Cohens_ vs. _Virginia_, 6 Wheat. 379, (5 Cond. Rep. 101.)
Indeed, almost every page of the opinion of the court, in _Cohens_ vs. _Virginia_, may be referred to, to show that they used the word “case” in a sense that embraces the proceedings for the reclamation of a fugitive slave. If so, then any tribunal, having jurisdiction over such a “case,” is vested with a part of the “judicial” power of the United States.
In defining the word “case,” as it occurs in this article, Judge Story says,--
“It is clear that the judicial department is authorized to exercise jurisdiction to the full extent of the constitution, laws, and treaties of the United States, _whenever any question respecting them shall assume such a form that the judicial power is capable of acting upon it_. When it has assumed such a form, it then becomes a _case_”--3 _Comm._ 507.
“A case, then, in the sense of this clause of the constitution, arises, when some subject touching the constitution, laws, or treaties of the United States, is submitted to the courts by a party who asserts his rights in the form prescribed by law.”--_Ibid._
And, as if these definitions were not clear enough, the learned judge adds,--
“Cases arising under the _laws_ of the United States are such as grow out of the _legislation_ of Congress, within the scope of their constitutional authority, _whether they constitute the right, or privilege, or claim, or protection, or defence of the party, in whole or in part, by whom they are asserted_.”--3 _Comm._ 508.
It seems clear, then, that the proceedings authorized by the Fugitive Slave law cannot be taken out of the meaning of the word “cases,” (cases in law and equity,) in the third article.
There is another clause in the third article, which embraces these proceedings with equal clearness and certainty. “The judicial power shall extend to controversies” “between a state and citizens of another state.” I suppose it will not be denied that a slave state may itself own slaves. They may escheat to it, be taken in execution for debt, &c. Now, a free citizen of Massachusetts may enter the port of Charleston as a mariner, be seized, imprisoned, and then sold into slavery for non-payment of jail fees. The State of South Carolina may purchase him. He may escape and return to Massachusetts. South Carolina may then claim him under this Fugitive Slave law.
In such a condition of things, a “controversy” will exist between “a state and a citizen of another state.” The commissioner can take jurisdiction of that case as well as of any other. And who will be bold enough to say that a trial and judgment by him, delivering up the respondent to bondage, would not be the exercise of “judicial power” in a controversy between “a state and a citizen of another state”?
The argument, that if the commissioner under the Fugitive Slave law exercises “judicial power,” then masters in chancery, commissioners of bankruptcy, &c., exercise it, is answered by a word.
Masters in chancery assist the court in preparing questions for decision, but they decide nothing. Every act of theirs may be reheard and reëxamined by the court at the pleasure of either party. They enter up no judgment; they issue no execution. They may express the opinion that the plaintiff or defendant is entitled to recover a certain sum of money, or to hold the chattel in dispute; but neither of them can touch it. They are “_judges_” in no legitimate sense. They exercise no part of the “judicial power.” The court may call upon them to state an account between parties, as it calls upon a clerk to make up the record, or a servitor to bring a law book, or asks a friend to cast up the interest on a promissory note. Such are the functions of a master in chancery, whose acts have no legal validity until assented to by the parties or sanctioned by the court.
So with regard to commissioners of bankruptcy. Every act they were ever authorized to perform derived all its legal force from the consent of the parties, or from the verdict of a jury, before whom it had been contested, or from the judgment of the court,--as may be seen at a glance, by reference to the acts creating them.
As to the supposed “judicial power” exercised by commissioners, under a treaty to determine who are rightful claimants, and to how much each one is entitled, it is almost too obvious to remark, that as no citizen can bring “suit” against the government, the “judicial power” does not “extend” to such a case, and the suggestion is puerile.
A word more will close my remarks on this topic. We have seen that a decision of the commissioner adverse to the respondent delivers him over into absolute, unconditional slavery. But the prevalent opinion is, that a decision in the respondent’s favor is no bar to a subsequent trial of the same person on a new “claim.” It was actually held in Long’s case, in New York, where the claimant apprehended that the decision of the first commissioner would be against him, that he might abandon proceedings before that tribunal and resort to another. He did so, and prevailed. That is, the claimant may select, from among an indefinite number of irresponsible magistrates, the one whose ignorance or whose turpitude may promise the best chances of success. But if, from any cause, he should apprehend defeat, then, and before the final judgment is pronounced, he can withdraw his suit and commence anew before another magistrate, and so throw the dice of the law again and again, until, by the very doctrine of chances, he shall ultimately succeed. Such want of equity between the parties stamps this law as infamous,--for inequity is iniquity.
An argument in favor of the surrender of alleged fugitives from service under this law has been derived from the provision for the surrender of fugitives from justice. But the difference between the cases is world-wide. In regard to slaves, the constitution says,--“No person HELD to service,” &c.; but in regard to criminals, its language is, “A person CHARGED,” &c.
Now, who can avoid perceiving the difference between the legal force of the words “held” and “charged”? The obligor in a bond is “HELD and firmly bound.” The grantor conveys an estate “to have and to HOLD” to the grantee and his heirs and assigns forever. So a lessee is to “HOLD” for the term specified. A man is HELD to answer a charge, &c., &c. In all these cases the word “_hold_” implies a perfect obligation or certain liability. But a man is “CHARGED” with an offence when a grand jury has found an indictment against him, or when a competent person has made the requisite oath. It is not enough that a man be _charged_ to be _held_ to service. He must be _proved_ to be _held_, or he remains free; the court must know that he is so _held_ before they are authorized to surrender him. And how, under our constitution, can the court know such facts as convert a presumptive freeman into a slave without a trial by jury?
Had the constitution said a fugitive _guilty_ of murder, &c., shall be delivered up, could a man be delivered up until _proved_ guilty of murder? Yet the word _guilty_ is no stronger in reference to a fugitive from justice than is the word _held_ in reference to a fugitive from service.
Another distinction between the cases is not less marked than the preceding. When the fugitive from justice is _claimed_, he is claimed by a _state_ for having violated its law, and when he is delivered up he is delivered into the custody of the law. Legal process must have been commenced against him in the state from which he fled. He is returned, that the prosecution thus commenced may be completed. He is delivered from an officer of the law in one state to the officer of the law in another state. He is transferred, not to avoid a trial, but to have one. The original indictment or _charge_, the arrest in a foreign state, and the delivery and transportation to the place of trial, are but separate parts of one legal proceeding. The shield of the law is continued over him. All the time and all the way, he has the solemn pledge of the government, that if not found guilty on the prosecution _then pending_, he shall be discharged.
But the alleged slave is claimed not by a state, but by an individual, and he is delivered up, not into the custody of the law, where his right might be adjudicated upon, but into private hands; not into the hands of a neutral or indifferent person even, but into the hands of a party interested to deprive him of all his rights, and who himself claims to be judge, jury, and all the witnesses, in determining what those rights are. If he be not a slave, then he is delivered into the hands of a man-stealer. The shield of the law is not continued over him; nay, the Fugitive Slave act expressly provides that, whatever his rights may be, yet, while _in transitu_, the law shall not recognize them. The certificate given by the commissioner to the claimant is to prevent “all molestation of him by any process issued by the court, judge, magistrate, or other person whomsoever.” Under this practical interpretation of our constitution, which, as its own preamble declares, was formed to “establish justice, and secure the blessings of liberty,” it takes better care of felons than of freemen.
But there are other provisions of the constitution respecting the trial of _criminals_, which would control this provision respecting the delivery of fugitives from justice, even if there should be any doubts about its true construction. By the constitution as originally adopted, and by the fifth amendment, all crimes, (except in cases of impeachment, or in the land and naval forces,) are to be tried in the state and district where committed. This makes it impossible to try a fugitive from justice in the state to which he has fled. It is an express prohibition against trying him there. But no such prohibition exists, no analogous provision exists, respecting the trial of “suits at common law,” or the trial of “cases” or “controversies,” in which a man may be deprived of “life, liberty, or property.” These cases, therefore, not being taken out of the general provisions of the constitution for securing the rights of the citizen, are left within it, and hence must be tried by a jury in the place where the claim is made.
My next objection to this law is, that it attempts to suspend the writ of _habeas corpus_.
The constitution says, “The privilege of the writ of _habeas corpus_ shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” The Fugitive Slave law declares that the “certificate” given to the claimant, his agent or attorney, “shall prevent all molestation of said person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.” Now, as a writ of _habeas corpus_ is a “process issued by a court or judge,” it follows, that, according to the terms of the Fugitive Slave law, the slave owner is not to be “_molested_” by that process. What, then, will constitute a “molestation” of him under this law? Would the service of a writ of _habeas corpus_ upon him, and, in case of his refusal voluntarily to obey it, the seizure of his person, and the carrying of him bodily before the court, perhaps a hundred miles out of his way;--would the moral necessity of employing counsel, and being otherwise subjected to great expense, both of money and time;--would any or all of these impediments and privations amount to what this law denominates “molestation”? If they would, then the slave owner is exempted from them. And if so exempted from them, is not the privilege of the writ of _habeas corpus_ “suspended,” as to his pretended slave? What else can a “suspension” of it mean?
But take the other alternative. Suppose the writ of _habeas corpus_ to be issued, and a return of all the facts by which the supposed slave is held to be made. The very return brings the Fugitive Slave act before the court; and if the act is before the court, then, surely, the question is also before the court, whether it is constitutional or not. For, if unconstitutional, it is no law, and no justification of the restraint. Suppose the court to decide the act to be unconstitutional, and to discharge the prisoner. This surely would be a “molestation” of him, in the strongest sense of the word. To say the least of it, then, the law contains an insolent and audacious provision, forbidding the “courts, judges, magistrates, and all other persons whomsoever,” to do what it may be their sworn constitutional duty to do,--that is, to inquire into the constitutionality of the law, and, if found to be unconstitutional, to disregard it.
I am aware of the astute reasoning of the present able attorney-general of the United States. He says, first, that the act does not suspend the writ of _habeas corpus_, because such suspension would be “a plain and palpable violation of the constitution, and no intention to commit such a violation of the constitution ought to be imputed” to Congress; and second, that if the certificate of the commissioner is shown “upon the application of the fugitive for a writ of _habeas corpus_, it prevents the issuing of the writ; if upon the return, it discharges the writ, and restores or maintains the custody.”
The first reason might be more briefly stated thus: it don’t because it don’t; or it don’t because it can’t.
The second is as little satisfactory as the first. If the facts are shown, it says, upon the fugitive’s application for a writ, no writ will issue; if shown upon the return of the writ, it will be abated. Is it not most clear that this assumes the very question in dispute, whether the law on which the certificate is founded be constitutional or not? The statement may be all very true, if the law be constitutional; but suppose the law to be unconstitutional, would not the statement be superlatively absurd? Yet whether the law be constitutional or not, is the very question to be determined.
Let me test the soundness of this logic by a supposed case. There is, at the present time, a set of politicians amongst us, who are so alarmed at agitation that each one of them is a kind of Peter the Hermit, getting up a crusade to prevent it. Now, suppose Congress, “_as a peace measure_,” should pass a law authorizing the secretary of state to issue his warrant for the arrest and imprisonment, until the 4th day of March, 1853, or at least until after the next presidential nominations are made, of any person who shall be guilty of agitating _on the wrong side of said peace measure_, and should further declare that any jailer having such warrant from said secretary should be free from “all molestation by any process issued by any court, magistrate, or other person whomsoever.” Would it be a sound, judicial, and lawyer-like argument, in such a case, to say that Congress could not, and could not have intended to, violate the constitution, and therefore they had not violated it; and that if the warrant for commitment should appear upon the prisoner’s application for a writ of _habeas corpus_, it would prevent its issuing; if, upon its return, it would discharge it?
I think it impossible for any one to show that if the argument be good in the first case, it would not be good in the second; and good, indeed, in any case, however outrageously violating the constitution.
Again: suppose the 18th of September last, when the Fugitive Slave bill was approved, to have been a time “of rebellion or invasion,” when the public safety required the suspension of this writ, would not such words as end the sixth section of the act be sufficient in law to suspend it? The attorney-general seems to rely upon the fact that the Fugitive Slave law does not mention the _habeas corpus_. He cannot surely mean to say that the privilege of this writ could not be suspended, unless by name. Even slavery is not mentioned in the constitution _by name_. Suppose Congress, in a time of rebellion or invasion, to say, in regard to any class of cases which it might choose to specify, that if one person shall hold another under executive warrant, such warrant “shall prevent all molestation of said person or persons by any process issued by any court, judge, magistrate, or other person whomsoever;” could any man deny that such words would have ample force to suspend the privilege of this sacred and time-hallowed writ?
No! Heaven, and not the thirty-first Congress, be praised for it! Though this infamous Fugitive law _could not_ suspend the _habeas corpus_, yet its words are adequate to do so. They purport to put the professional slave-hunter, as it regards the privilege from arrest, or “molestation,” on the footing of a member of Congress; and it would not have gone one iota further, in point of principle, had they made his person inviolable while going to seize his prey, and when returning with it.
If the argument of the attorney-general be sound, then the whole “privilege of the writ of _habeas corpus_,” under any corrupt law that any corrupt Congress may pass, will consist in the privilege of applying to a court for the writ, and being refused; or in suing out the writ, and having it quashed.
By the principles of the English law, the privilege of the _habeas corpus_ attaches to all, whether bond or free. The words _liber homo_, says Lord Coke, extend to every one of the king’s subjects, “be he ecclesiastical or temporal, free or _bond_, man or woman, old or young, or be he outlawed, excommunicated, or any other, without exception.”--2 _Inst._ 55.
I now proceed to lay open for the abhorrence of mankind other deformities of this most odious law. In opposing a law, a distinction is to be made between the courts and the people; between the bench and the ballot-box. The courts can hear but one objection to a law. It may be impolitic, unrighteous, atrocious; but if it be constitutional they must sustain it. But before the tribunal of the people, a law may be impeached for any attribute of cruelty, oppression, or meanness. I denounce the Fugitive Slave law for all these qualities. In its scornful rejection of all those common-law principles of evidence which have been ratified by the wisdom of ages; in the “summary” and piratical haste of its proceedings, and in the indelible blood with which its judgments are recorded, I believe it has not a parallel in the modern code of any civilized people.
Should the courts, hampered by previous decisions, and habituated to the spectacle and the support of a cruel institution, pronounce this law to be constitutional, such a judgment would give new force to every reason why the people should demand its modification or repeal. It is not enough that it should be declared void by the courts as against the fundamental law of the land; it deserves to be branded by the people as abhorrent to humanity, to civilization, and to the gospel of Jesus Christ.
Look at its provisions in regard to evidence. The proof of three facts dooms the victim: first, that the person named in the warrant owes the claimant service; second, that he has escaped; and, third, identity.
Now, according to the law, all these facts may be proved in the absence of the party to be ruined by them. The whole case may be established by evidence taken behind the victim’s back, without notice to him, without knowledge, or possibility of knowledge, on his part. A freeman may be suddenly arrested, and dragged into court, and on certain papers being read against him, which he never saw nor heard of before, he may be ordered into the custody of officers, and hurried to a returnless distance from wife, children, and friends, reduced to the direst form of bondage the world ever knew, and at the expense of the very government which he has been taxed to support, and which in turn was bound to protect him. I will prove by a reference to the act itself that these atrocities are among its conspicuous features.
By the sixth section it is made the duty of the “court, judge, or commissioner,” “upon satisfactory proof being made by deposition _or affidavit_, in writing,” “or by other satisfactory testimony,” “and with proof, _also by affidavit_, of the identity of the person whose service or labor is claimed,” “to make out and deliver to such claimant a certificate,” &c.
And the tenth section of the act declares that the transcript of a record “taken in any state or territory, or in the District of Columbia,” and “produced in any other state, territory, or district,” and being there “exhibited to any judge, commissioner, or other officer authorized to cause persons escaping from service or labor to be delivered up, shall be held and taken to be full and _conclusive_ evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in said record mentioned.” “And upon the production of other and further evidence, _if necessary_, either oral or _by affidavit_, of the identity of the person escaping, he or she shall be delivered up to the claimant.”
Here, then, is a provision unknown to the common law of England, or to any colony, or people, or tribe that ever claimed the common law of England as their inheritance; unknown even to the star chamber, or high commission court; unknown in the bloodiest reigns of the bloodiest tyrants that ever sat upon the English throne; unknown to those judicial villains whom Lord Campbell calls “_ruffians in ermine_”--incorporated into the code of a republican government. Evidence, which may consign to slavery a man who is ostensibly and presumptively free,--free by the laws of the state where he is, and free every where by the law of God and humanity,--may be prepared in his absence, without any notice to him, and by any means of perjury or subornation of perjury to which guilt may resort, and this evidence is made legally sufficient to doom a fellow-being to relentless bondage. Notwithstanding those remarkable clauses in the constitution which provide that “in all criminal prosecutions the accused shall enjoy the right to a _speedy_ and _public_ trial,” “be informed of the nature and cause of the accusation,” “be confronted with the witnesses against him,” “have compulsory process for obtaining witnesses in his favor,” “and have the assistance of counsel for his defence;” yet Judge Story comments upon them in a spirit of dissatisfaction and sorrow; “for,” says he, “unless the whole system [of the common law] is incorporated, _and especially the law of evidence_, a corrupt legislature, or a debased and servile people, may render the whole little more than a solemn pageantry.” (3 _Com._ 662.) In speaking of a “corrupt legislature,” he seems to describe what this Congress has done in enacting the Fugitive Slave law at its last session; and, in speaking of a “debased and servile people,” he speaks of just such a people as the advocates and champions of this law are now striving to make the people of the United States become!
The right of cross examining witnesses is a common-law right, appertaining to all kinds of trials. It is a right without which all trials are but mockery. It is oftentimes a hardship to be confronted with witnesses of whom one knows nothing; but to be debarred from all opportunity of getting, by cross questioning, at the knowledge that is in them; to be debarred from the right of showing that they are incompetent even to folly, or corrupt even to wilful perjury, this is a barbarity unknown to any code in the civilized world, save to the code of the United States of America. It is what even barbarians might be ashamed of. It is offering bounties and premiums on villany, and turning the courts into brokers’ offices for perjury. Under such a law, is there a single colored person at the north who can rise to his labor in the morning, or lie down to his repose at night, with any feeling of security that avarice and false swearing may not then be at work for his destruction? Who can wonder, if he is tormented in his nightly dreams by images of the man-stealer, in far off regions, plotting for his ruin? Who can wonder if, in his city residence, he starts as he turns the corner of every street; or, in his rural home, if he shudders at the rustle of every leaf, lest some kidnapper should spring from his ambush to seize him? That sense of personal security which every honest man is entitled to feel, this law abolishes. The virtuous man cannot rely upon his government, nor the pious man upon his God, for earthly protection. For him the Prince of Darkness has obtained the ascendency in the affairs of men, and offers impunity to guilt, while protection is withdrawn from innocence. The life of such a man is a perpetual agony of alarm for himself and for his family. A cloud charged with lightning is forever suspended over his head, and no genius can devise the means to turn aside its bolts.
Sir, before God, I believe that, in the judgment of an impartial posterity, this method of taking evidence, by the cruellest of means and for the wickedest of purposes, will be held as atrocious and as execrable as that horrid method of extracting evidence by torture, which once prevailed, but which now even half-civilized nations have abolished. A brave heart could withhold a false confession, even upon the rack. With the images of wife and children before the eyes, martyrdom for their protection has been sweet. But there is no man whom God ever made who will not tremble, and stand aghast with consternation, with the conscious knowledge in his mind that he, his wife and children, and all that he holds dear upon earth, are at the mercy of every pirate-hearted villain between the Atlantic and the Rio Grande; nay, that the government offers inducement to foreign assassins to come here, where, with less risk, they can make more money by false swearing and judicial kidnapping than they could at home by murder and robbery. Better, a thousand times better, had the constitution allowed the citizen “to be compelled to be a witness against himself,” and laid its prohibitions upon the fabrication of testimony against him in his absence.
The tenth section of the act declares that this evidence, thus obtained under a foreign jurisdiction and in the absence of the party, shall be “_conclusive_.” Now, the legal force and meaning of this provision is, that no amount or weight of evidence, no array of the most unimpeachable witnesses, not even the personal knowledge of the commissioner himself, who tries the case, though given under the sanction of an oath, which the law does not require him, as a commissioner, to take, shall be admissible to rebut this “conclusive” testimony. It is not made _prima facie_ evidence merely against the respondent; it does not merely shift the burden of proof, so that the presumptive freeman becomes presumptively a slave, and must himself establish the freedom he would possess; but the law magnifies it into a species of proof that is “conclusive,”--that is, unquestionable, irrefragable, omnipotent,--like a miracle of God, not to be disputed. And this greatest of legal force is given to the worst kind of evidence. I say that a law so worthy of abhorrence, so truculent, so fiendish, is not to be found upon the statute book of any other civilized nation on the globe.
Such, too, has been the practical construction given to the law. I see by the papers that, in a late case which occurred at Detroit, the respondent declared himself a free man, and prayed for a continuance, to allow him to send to Cincinnati for his free papers. But the commissioner refused the delay, saying that, under this law, even free papers from the very man that claimed him would be of no avail; for where the law made the evidence _conclusive_, nothing could rebut it. Any counter evidence must always be admitted, on the hypothesis that the evidence already received may be controlled by it. But what an infinite absurdity to suppose that one mass or body of proof can be _conclusive_, over another which is _conclusive_. The law might just as well have made _color_ conclusive, not only that the respondent was a slave, but that he ran away from the man who claims him. The law, as it stands, is as much a slave-making as it is a slave-catching law.
It declares that the proceedings shall be “summary;” and it provides a different rate of compensation, according as the decision is for freedom or against it. On what principle is this difference of compensation founded? Every body can see at a glance that when a claimant can prepare his evidence beforehand and in secret, he would be a fool not to make out a _prima facie_ case. If the respondent adduces no proof, the case goes by default, and judgment, without delay, is entered against him. But if the claim is contested, then witnesses are to be examined, arguments are to be heard, evidence is to be weighed, legal questions to be investigated, and such a decision made as the commissioner is willing to pronounce before the world. It is only in the last class of cases, the contested class, that the respondent will be discharged. The cases, therefore, that result in freedom will ordinarily occupy sixfold or tenfold more time, besides requiring the exercise of more legal knowledge and ability, than those which terminate fatally to the respondent. Yet for decreeing the freedom of a man, the fee is but half as much as when a sentence of bondage is awarded against him. This surpasses the bribery of Judas by the high priests. They had not diabolical wit enough to present a contrast between right and wrong, as a special stimulus for committing iniquity.
The “summary manner” of trial provided for by this law, when considered in reference to rights so momentous, shocks every Anglo-Saxon mind. One’s blood must all be corrupted in his veins, before he can hear of it without indignation. It is the noblest attribute of our race, that we hold civil and religious liberty to be more sacred and more precious than life itself. Yet by what safeguards of constitution, of law, and of forms of practice, is life protected amongst us? There must be a presentment, by at least twelve sworn men, before a man can be held to answer to a charge by which it can be forfeited. Then come the traverse jury, the right of peremptory challenge, the assignment of counsel, the right to see the indictment beforehand, and to know the names of witnesses who are to be called against the accused, and compulsory process to insure the attendance of witnesses in his favor! What noble barriers are these against the oppression of a powerful government, and the malignant passions of powerful men! The probable culprit,--the man laboring under the most violent suspicion,--though caught with the blood-red dagger in his hand over the prostrate body of the victim, is guarded by all that human ingenuity has been able to devise; by all the knowledge that we can command this side of the omniscience, and by all the power this side of the omnipotence of God. Yet in the very community where these rights are reverenced and upheld, a man may be seized without notice, hurried to a tribunal without an hour for preparation, and then be borne away a thousand miles, where all that life has of hope and of enjoyment is taken away, and all that it knows of misery and of terror is realized.
Let me ask any man who ever had a case in court that was worth defending, whether he was prepared to meet it the first hour he had notice of its existence? A respondent’s witnesses may be resident in different states, and distances of hundreds of miles may intervene between him and them. His proof may consist of deeds, or wills, or records, which cannot be found or authenticated without delay. His defence may consist of matters of law, which the ablest counsel may require time and the examination of books to investigate. All these obstacles to instantaneous readiness may exist together, and yet the inexorable mandate of the law scorns his appeal for that delay on which his highest interests are suspended, and dooms him to bondage because he cannot achieve impossibilities. Under such a law, not one man in ten who will be arrested, even though he should be free, will be prepared to establish his freedom. A great portion of these outcasts from human justice, I doubt not, are better prepared for the summons of instantaneous death than for this summons of instantaneous trial.
Then the cruel haste in executing judgment! The murderer is allowed a season of respite between the hour of sentence and the hour of death; the debtor may turn out goods to satisfy a creditor’s demands; but the alleged fugitive has no reprieve. He has no opportunity to solicit money to redeem himself, or to negotiate for the ransom of body and soul. Swift and sure as an arrow to its mark, he is speeded on his way to the abodes of toil and despair. The witnesses who swore away his liberty may have been perjured, but he cannot stop to convict them. The court may have been corrupt, but he cannot remain to impeach it. However honestly rendered, the judgment may be reversible for error in law, but he cannot stay to set it aside.
Now, every one must see that where there is so little caution before trial, there should be a liberal opportunity for revision after it. But here is infinite exposure to error with no chance for rectification. Overstepping the acts of the common tyrant, there is an infliction of the most heinous wrong, with a premeditated purpose that it shall not be repaired. The great and free republic of North America has transferred the unwritten law of Judge Lynch to its statute book.
However clear the constitutional obligation of Congress to enact a law for the reclamation of fugitive slaves may be supposed by any one to be, there certainly are limitations to this obligation, which all the principles of our government forbid the law-maker to transcend.
In the first place, this constitutional obligation must be strictly construed. The main and primary object of the constitution was to protect natural rights; but the object of the Fugitive Slave clause was to protect a legal right in conflict with natural right. All judges of an honorable name, all courts in all civilized communities, have recognized a broad distinction in the principles of interpreting law. They have held that provisions against life and liberty should be strictly construed, while those in favor of life and liberty should be liberally construed,--the one so construed as to inflict as little of pain and privation as possible; the other, to give as much of freedom and immunity as possible. These have become maxims, or axioms, of legal interpretation; and in their long and unbroken recognition, it is not too strong an expression to say, they impetrate and command a strict construction of that clause in the constitution under which fugitives may be claimed. And the same legal maxims, in regard to all subjects touching life and liberty, bind Congress in legislating under the constitution, as bind the judicial tribunals in administering the law.
Yet the Fugitive Slave law contains provisions which there can be no pretence nor shadow of a pretence that the constitution requires. By the constitution, “No person held to service or labor in one state, escaping into _another_, shall be discharged.” Into _another_ what? Indisputably, into another _state_. It must mean _state_, and can mean nothing else; for the laws of language admit no other construction. The expression, “No person held in one _state_, escaping into _another_ TERRITORY,” would be not merely ungrammatical and un-English, but nonsensical. No man of common intelligence ever so construed a sentence. Yet the sixth section of the act provides not only for the case of slaves escaping from one state into another state, but for their escape from a state into a _territory_, and for an escape from a _territory_ into a state, and for an escape from one _territory_ into another _territory_. Four classes of cases are provided for by the law, while but one of them finds any warrant in the constitution.
Now let any one take a map of the United States, and see over what a vast area the law extends, over which the provision in the constitution does not extend. The region is continental over which the law unconstitutionally extends, and this corresponds with the vast inhumanity of the principle which so extends it.
Mark another particular in which the provisions of the law go beyond the requirements of the constitution. The constitution says the fugitive shall be “delivered up.” The law makes provision for transporting him to the claimant’s home. Is there any similar provision respecting any other species of property? If a northern merchant recovers a debt from his southern customer, does the government assume the responsibility of seeing that it is paid to the creditor at his own home? If a northern man is robbed, and the stolen goods are found in another state, does the government transport them back and pay freight? Then, why should government interpose in this case to bear costs and risks, unless slavery is so meritorious an institution as to deserve the benefactions as well as the benedictions of freemen?
Then observe how artfully the law is worded, to make the assistance rendered to the claimant go beyond any supposed necessity in the case. “If,” it says, “upon affidavit made by the claimant, ... his agent or attorney, ... that he has reason to apprehend that such fugitive will be rescued by force, ... before he can take him _beyond the limits of the state in which the arrest is made_, it shall be the duty of the officer ... to remove him _to the state whence he fled_.” Thus, if danger is apprehended, _within the first ten miles_, the government shall see the slave safely home, at its own expense, _though it be a thousand miles_.
But besides the unheard-of principle of saddling the government with the expense of prosecuting the private claims of its citizens within its own jurisdiction, I should like to know what provision the constitution contains, which, though interpreted by the most latitudinarian constructionist, confers any right upon Congress thus to take the money of one citizen to pay the private expenses of another. There is no clause, or phrase, or word in that instrument which favors the idea that the Northern States should bear the expense, as well as the disgrace, of thus remanding our fellow-men into bondage.
Besides, if the limits of the constitution were to be transcended in order to deliver an alleged fugitive to his master, would not the slightest element of equity, or decency, even, require that when a freeman is condemned to bondage under the law, his expenses, incurred in returning to the place where he was plundered of himself, should be reimbursed to him by the government which had failed in its duty to protect him? If the claimant of James Hamlet could be supplied with a force, at the government’s expense, to carry him into slavery, why should not the expense of coming back into a land of freedom be reimbursed by the government to Adam Gibson, after one of its venal and villanous instruments had wrested that freedom from him?
The law also provides for another thing which the supreme court has expressly declared to be unconstitutional, or beyond the power of Congress to enact. It provides that any _state_ court of record, or judge thereof, in vacation, may take and certify evidence which shall be “conclusive” in regard to two of the three points which are made sufficient by the law to prove a man a slave. Thus, the two facts of slavery and of escape may be “conclusively” proved by the certificate of a judge of a _state_ court, so that the judge before whom the alleged fugitive is brought shall, in regard to these facts, exercise only a mere ministerial function. Now, he who has power to take and authenticate evidence, which it is predetermined shall be “conclusive” in the case, has power to decide the case. This, in its nature and essence, is a judicial power; yet this power is given by the act to any _state_ court of record, and to any judge thereof in vacation. Contrary to this, however, the supreme court has said, “Congress cannot vest any portion of the judicial power of the United States except in courts ordained and established by itself.”--_Martin_ vs. _Hunter’s Lessee_, 1 Wheat. 330. “The whole judicial power of the United States should be, at all times, vested in some courts created under its authority.”--_Ib._ 331. “The jurisdiction over such cases, [cases arising under the constitution, laws, and treaties of the United States,] could not exist in the state courts previous to the adoption of the constitution, and it could not afterwards be directly conferred on them; for the constitution expressly requires the judicial power to be vested in courts ordained and established by the United States.”--_Ib._ 335.
Yet, though it is expressly declared that Congress cannot vest any part of the judicial power of the United States in a state court, the state courts are empowered by this law to take and certify evidence, which is made “conclusive” in the case.
Look at the subject in another of its aspects. Here are some half million of free colored persons in the free states. _They_ are unquestionably free. They possess, as fully as you or I, those prerogatives of freedom without which life ceases to be a blessing. Their freedom is guarantied to them by the constitution of the United States, and by the constitutions and laws of the states respectively in which they dwell. They certainly are a part of the people. In some of the states, as in Massachusetts for instance, the law knows no iota of distinction, in any respect, between a black man and a white man; between one of European and one of African descent. It is the noble privilege of a Massachusetts man to say, that, as all men are equal before the divine law, so are all men equal within our borders, before the human law.
Now, scattered among this half million, more or less, of free colored people in the free states, there are a few hundreds, or a few thousands if you please, of “fugitives from service or labor,” as the constitution cunningly and evasively phrases it; which, being interpreted, means, as the whole world knows, fugitives from toil, and fetters, and stripes, and agony; fugitives from ignorance and the thick darkness of the intellect; fugitives from moral debasement, and from that enforced pollution of body and soul that spares neither wife, nor mother, nor a daughter’s innocence; fugitives from the disruption of family ties, and from the laceration of all human affections; fugitives, in fine, from a heathenism of superstition and religious blindness into the glorious light of the gospel of Jesus Christ.
Now this free class and this fugitive class belong ethnologically to the same race. They speak the same language, and wear the same distinctive characteristics of feature and of form. All the unspeakable privileges, all the sacred titles and immunities of the one class are enshrined in the same complexion and in the same contour of person that attend the debasement and privation of the other. The vessels of honor and of glory are moulded into the same shape with the vessels of dishonor and of shame.
Now, after this debased class has been created by a wicked system of human laws, and after it is mingled with the free class, another law steps in and decrees that the former shall be remanded to their bondage. An awful decree! second in terribleness only to that which shall divide between the blessed and the accursed before the judgment-seat of God. Within the compass of human action, there never was an occasion that demanded more unerring justice and wisdom, that invoked more foresight and solicitude, that appealed more touchingly to every sentiment and instinct congenial to liberty, with which God has endowed and ennobled the soul of man, so to devise the law, if law there must be, as not to involve the free in the horrible doom of the enslaved. If, in the administration of penal laws, a knowledge of human fallibility has forced the maxim into existence and into practice, that it is better that ninety-nine guilty persons should escape than that one innocent man should suffer, ought not the same benign rule to be adopted in our legislation whenever there is a possibility of exposing the free to the fearful fate of the enslaved? But instead of this jealousy and circumspection, what have we? A law whose first utterance abjures the distinction between freedom and bondage; a law which brings the whole free colored population of the United States within the outer circles of the whirlpool of slavery, that they may be ingulfed in its vortex; a law which empowers every villain in the country, by fabricating false testimony at his own leisure and convenience, to use his own freedom in order to rob other people of theirs! I aver, that before any moral tribunal, where right and wrong are weighed in the balances of the sanctuary, there is not a felony described in the whole statute book that is more felonious than such a law.
It has become an axiom in the administration of justice,--an axiom slowly evolved by the wisdom of ages, but now firmly established and incorporated into the jurisprudence of every civilized community,--that the ethical policy of the law will tolerate no rule of action that opens the door to fraud or crime, but will even vacate solemn contracts between parties otherwise competent, in its jealousy and apprehension of wrong. Hence the law applicable to common carriers, which will not allow a man to exonerate himself from liability even by express notice, lest opportunity should be given for collusion and fraud. Hence, too, the principle of law which forbids an insolvent debtor to pay, or even to contract to pay, a _bona fide_ creditor in anticipation of bankruptcy. Now, this principle applies with tenfold force to legislators,--withholding and repelling them from passing any law which may involve the innocent in the fate of the guilty, or the free in the bondage of the enslaved.
But the law violates a still deeper principle than these. I do not recollect the instance of a single northern man or northern press, utterly false to freedom, and venal as so many of them have been, that has expressed entire satisfaction with the law. They palliate it, they strive, by seductive party and pecuniary appeals, to beguile men into its support. They look outside of it for pretexts to hide its inherent baseness; but not one of them, so far as I know, has had the effrontery to justify it on its intrinsic merits. Even those northern men who voted for it have sought refuge from the storm of righteous indignation that burst upon them, by alleging that it was an essential ingredient in a system of measures, and entered, as a necessary element, into a desirable compromise.
When this language is translated, what does it mean? Simply this, and no more. California was admitted, and thereby certain political and commercial advantages were gained. This, in legal language, was the consideration. The Fugitive Slave law was passed, and thereby the rights of freemen, the property of men in themselves, all the household sanctities, all the domestic endearments of half a million of men, were put in peril. This was the equivalent given! A mere barter of the holiest interests for worldly advantages! And these interests were given away by men who did not own them, and therefore had no right to transfer them. The whites, north and south, played a game, and made the black people their stakes. Who authorized the law-makers to derive a benefit to themselves from doing this infinite wrong to others? Who gave them the terrible prerogative of making others suffer for their pleasure. I say it with reverence, but I still say it with emphasis, that we cannot conceive of God himself as having power to inflict vicarious suffering without the free consent of the sufferer! Yet the atrocities of this law are defended by those who made it, on the ground that they and other white men have secured benefits to themselves by sacrificing the liberty, happiness and peace of half a million of their fellow-beings of a different color. Cause and counsellor are alike; for the defence is as profligate as the act it defends.
I say, sir, it is the population of African descent in the free states which is specially put in peril by this law. Occasionally, indeed, persons of unmixed white blood are seized and enslaved under it. These cases, however, are comparatively rare. But suppose the reverse. Suppose circumstances to be such that the whole body of the white population should be as much endangered by it as the colored people now are. Suppose that not only the white voters themselves, but their wives and their children, were as liable to be “_Ingrahamed_,” as the blacks; suppose this, I say, and would the existence of the law be tolerated for an hour? Would there not be an uprising of the people, simultaneous and universal against it, and such a yell of execration as never before burst from mortal lips? The name of every man who had voted for it, or who should defend it, would be entered upon that apostate list at whose head stands the name of Judas. Christian and Infidel, Jew and Gentile, would execrate it alike. Why, then, if they would do this to avert such peril from themselves and their families, do they not do it when their sable brethren are in jeopardy? Alas! there is but one answer! From selfish considerations, from the love of wealth, or the love of power, they have discarded that heaven-descended maxim, “Whatever ye would that men should do unto you, do ye the same unto them.”
And it is this very class of men who have thus abjured the precepts of Jesus Christ, who have trampled upon the divine doctrines of liberty and love, that now so clamorously summon us to an obedience to law.
In answer to this call, let me say, that true obedience to law is necessarily accompanied and preceded by a reverence for those great principles of justice and humanity without which all law is despotism. How can a man pretend to any honest regard for the principle of obedience to law when he is willing, as in the case of this fugitive act, to transcend our constitutional law, and to invade the divine law? It is but an appeal to the lower rule of action to justify a violation of the higher. Under the pretext of rendering unto Cæsar the things that are Cæsar’s it denies to God the things that are God’s.
And again, a true reverence for law is a general principle, and not an isolated fact. It applies to all laws collectively, and not to any one law in particular. It bestows its greatest homage upon those laws that embrace and confer the most of human welfare; for, were all the laws of a community, or the great majority of them, unrighteous, then disloyalty to law would be the virtue. Can the class of men who demand our allegiance to the Fugitive Slave law stand this test? We have usury laws, which not only carry the legal force of statutes, but the moral power of the greatest names in legislation and in statesmanship. Are the men in New York, in Philadelphia, and Boston, who are most vehement in support of the Fugitive Slave law, signalized for their regard to the statutes against usury?
Is not money lent in all those cities on the same principle that wreckers send a rope’s end to a drowning man,--for as much as they can extort? It is notorious that among the great body of merchants and capitalists in those cities, interest is regulated by the pressure upon the money market, and that no more idea of law mingles with their contracts than in California, where there is no law on the subject.
We have laws restricting the sale of intoxicating liquors, and designed to promote the glorious object of temperance. For which practice have our cities been conspicuous,--for their obedience to these laws or for their violation of them? A few years ago, when a question of the constitutionality of a law of Massachusetts for the restraint of intemperance arose, did not its two distinguished senators appear in the supreme court of the United States, and make the most strenuous exertions to annul the law of their own state, and to open anew the flood-gates for overwhelming their own constituents in misery and ruin,--the selfsame gentlemen who are now so intolerant even of discussion?
Look at the complaints which come to us every day from the friends of a protective tariff. They tell us that our revenue laws are fraudulently and systematically evaded; and they number the violations of these laws by thousands and tens of thousands. Who are the violators? Not men living in the country; not the farmers and mechanics and laborers,--the substratum of our strength and the origin of our power;--but they are the city merchants, the getters-up of “Union meetings,” and the members of “safety and vigilance committees,” who are so earnest in inculcating those lessons of obedience by their precepts, which they have done so little to recommend by their example.
The Southern States are loud in their calls upon us to execute the Fugitive Slave law. But what examples have they set us on the subject of obedience to law? I think I may be pardoned for mentioning a few cases, to show how their preaching and practice tally.
In 1831, the legislature of Georgia offered a bribe of _five thousand dollars_ to any one who would arrest, and bring to trial and conviction, in Georgia, a citizen of Massachusetts, named William Lloyd Garrison. This law was “approved” by William Lumpkin, governor, on the 26th December, 1831. Mr. Garrison had never stepped foot within the limits of Georgia, and therefore it was not a reward for his trial and conviction, but for his abduction and murder.
At a meeting of slaveholders, held at Sterling, in the same state, September 4, 1835, it was formally recommended to the governor, to offer, by proclamation, the five thousand dollars appropriated by the act of 1831, for the apprehension of either of ten persons, citizens, with one exception, of New York, or Massachusetts, whose names were given; not one of whom, it was not even pretended, had ever been within the limits of Georgia.
The Milledgeville, Georgia, “Federal Union,” of February 1, 1836, contained an offer of $10,000 for kidnapping A. A. Phelps, a clergyman of the city of New York.
The committee of vigilance, (another “committee of vigilance,”) of the parish of East Feliciana, offered, in the Louisville Journal, of October 15, 1835, $50,000 to any person who would deliver into their hands Arthur Tappan, a merchant of New York.
At a public meeting of the citizens of Mount Meigs, Alabama, August 13, 1836, the _honorable_ Bedford Ginress in the chair, a reward of $50,000 was offered for the apprehension of the same Arthur Tappan, or of Le Roy Sunderland, a Methodist clergyman of New York.
Repeated instances have occurred in which the governors of slave states,--Virginia, Georgia, Kentucky, Alabama, &c.,--have made requisitions upon the governors of free states, under the second section of the fourth article of the constitution, for the surrender of free citizens, _as fugitives from justice_, when it was well known that the citizens so demanded were not within the limits of the slave states at the time when the alleged offence was committed, and, in some instances, had never been there in their lives,--high executive perversions of the constitution of the United States, by chief magistrates who had sworn to support it!
For nearly twenty years past the post-office laws of the United States have been systematically violated in slave states, the mail bags rifled, and their contents seized and publicly burned; and, in some instances, these violations have been enjoined, under heavy penalties, by a law of the states. There are several of the slave states on whose statute books these laws, commanding a violation of the post-office, stand to-day.
During Mr. Adams’s administration, a man by the name of Tassels, in Georgia, was adjudged to be hanged, under a law of the state, as clearly unconstitutional as was ever passed. A writ of error was sued out from the supreme court of the United States, in order to bring the case before that tribunal for revision. But the state of Georgia anticipated the service of the writ, and made sure of its victim by hanging him extemporaneously.
Within a few weeks past,--the accounts having but just now reached us,--an aged and most respectable individual of the name of Harris, a citizen of New Hampshire, has been tried by a mob in South Carolina, and tarred and feathered, because he happened to have _in his trunk_ a sermon which had been sent to him by one of his acquaintances, a clergyman at the north; though he had never showed the sermon to a single individual, nor whispered a word of its contents. Another man, a Dr. Coles, belonging to Boston, who had been lecturing on the subject of physiology, was, within a few days, seized and carried before a magistrate, in the same state, his trunks rifled, the private letters sent to him by his wife and family publicly read, with the most indecent comments, and all without any shadow of reasonable suspicion against him.
The unconstitutional imprisonment of northern seamen in southern ports is an occurrence so frequent, and so universally known, that I need not spend time to enumerate or to describe the cases.
The President of the United States has made proclamation, and proffered the military and naval force of the United States, to aid any southern slave owner in reducing his fugitive slave to a new bondage; but I have not heard that he has made any similar proclamation, or manifested any anxiety for the support of that part of the constitution which says that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.”
Now, with a few exceptions, it is these very classes of men who violate the laws against extortion and usury; who break down the barriers against the desolations of intemperance; who, almost alone of all our citizens, are implicated in the breach of the revenue laws; who annul the post-office laws of the United States; who offer rewards for free northern citizens, that they may get them in their clutch to lynch and murder them; who demand free citizens as fugitives from justice, in states where they have never been, and who imprison free citizens and sell them into slavery;--it is these classes of men who are now so suddenly smitten with a new sense of the sacredness of law, and of the duty of obedience to law,--not of the laws of God, not even of the laws of man, in general, but of this most abominable of all enactments, the Fugitive Slave law in particular.
I do not cite the above cases from among a thousand similar ones, as any justification or apology for forcible and organized resistance to law by those who even constructively can be said to have given it their consent. But the words of a preacher do not “come mended from his tongue,” when his name is a scandal among men for his violation of all the precepts he enjoins.
And now, sir, when I am called upon to support such a law as this, or to desist from opposing it in all constitutional ways, while it lasts, my response is, repeal the law, that I may no longer be called upon to support it. In the name of my constituents, and by the memory of that “old man eloquent,” in whose place it is my fortune to stand, I demand its repeal. I demand it,--
Because it is a law which wars against the fundamental principles of human liberty.
Because it is a law which conflicts with the constitution of the country, and with all the judicial interpretations of that constitution, wherever they have been applied to the white race.
Because it is a law which introduces a fatal principle into the code of evidence, and into judicial practice,--a principle, before which no man’s liberties and no man’s rights of any kind can stand.
Because it is a law which is abhorrent to the moral and religious sentiments of a vast majority of the community that is called upon to enforce it.
Because the life and character of so many of its apologists and supporters are themselves potent arguments against whatever they may advocate.
Because it is a law which, if executed in the free states, divests them of the character of free states, and makes them voluntary participators in the guilt of slaveholding.
Because it is a law which disgraces our country in the eyes of the whole civilized world, and gives plausible occasion to the votaries of despotic power to decry republican institutions.
Because it is a law which forbids us to do unto others as we would have them do to us, and which makes it a crime to feed the hungry, to clothe the naked, and to visit and succor the sick and the imprisoned.
Because it is a law which renders the precepts of the gospel and the teachings of Jesus Christ seditious; and, were the Savior and his band of disciples now upon earth, there is but one of them who would escape its penalties by pretending “to conquer his prejudices.” And, finally,
Because the advocates and defenders of this law have been compelled to place its defence upon the express ground that the commandments of men are of higher authority than the ordinances of God.
In Hooker’s sublime description of law, when understood in its generic sense, he says,--
“Of law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world; all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempted from her power; both angels, and men, and creatures, of what condition soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy.”
Now, sir, with these glorious attributes of “law,” I say the Fugitive Slave law of the last session possesses not one quality in common, nor in similitude. To say that the seat of such a law is in the “bosom of God,” is the intensest blasphemy. To say that it is “the harmony of the world,” is to declare that the world is a sphere of ubiquitous and omnipotent wrong, uncheckered by any thought of justice, and devoid of any emotion of love. To say that “all things in heaven do homage” to such a law, is to affirm of the realms of light what is true only of the realms of darkness. The “least” do not “feel its care,” but tremble and wail beneath its cruelty; while the “greatest” and the strongest _are_ “exempt from its power;” for they made it not for themselves but for others. To no class of “creatures,” rational or irrational, human or divine, can it prove to be the “mother of peace and joy;” but wherever it extends, and as long as it exists, it will continue to be an overflowing Marah of bitterness and strife.
As the great name of Hooker has been profanely cited in behalf of this law, I will close by quoting his distinction between those laws of human governments which ought to be obeyed, and those which ought not:--
----“which laws,” says he, “we must obey, _unless there be reason showed which may necessarily enforce that_ THE LAW OF REASON OR OF GOD DOTH ENJOIN THE CONTRARY.”
FOOTNOTES:
[20] Such also is the law in Louisiana. See _Louis_ vs. _Marot_, 9 Louis. Rep. 473; _Smith_ vs. _Smith_, 13 Louis. Rep. 441.
SPEECH
ON THE FUGITIVE SLAVE LAW, DELIVERED AT LANCASTER, MASSACHUSETTS, MAY 19, 1851, PENDING THE CANVASS FOR A MEMBER OF CONGRESS FOR THE FOURTH CONGRESSIONAL DISTRICT.
FELLOW-CITIZENS;
We are assembled on a great occasion and for a great purpose. The election of a member of Congress, indeed, is not an extraordinary event; but it is extraordinary that principles of the most vital importance to the honor of Massachusetts, and to the cause of human liberty throughout the world, should be involved in a local election. Such, however, is now the fact.
Gentlemen, the assertion and the recognition of the rights of man have made great progress among the nations of Europe within the recollection of many who are now before me. Notwithstanding the partition of Poland by allied robbers, and the obliteration of that kingdom from the map of Europe; notwithstanding Hungarian subjugation to Austrian despotism, and many other atrocious crimes against humanity, such as nations only can commit; for they are too vast and monstrous to be perpetrated by any individual,--I say, notwithstanding these facts, the great fabric of human liberty has been rising in Europe, while the solid structures of despotism have been disintegrating and making ready for their fall.
But truth compels me to acknowledge that, during the last three quarters of a century, our course, in this country, has been downward. While among the other nations of Christendom the altar-fires of liberty have been kindling and burning with a brighter flame, ours have been waning. At the foundation of our government an institution existed amongst us utterly irreconcilable with the fundamental principles of the government itself. But it was then limited in its extent, and its spirit nowhere existed in great intensity. Even those who cherished it most were ashamed of it; and in those provisions of the constitution which were designed for its temporary protection, a common regard for decency forbade the mention of its name. Fatally to our own peace and honor, that which was then regarded as temporary and local, now threatens to be abiding and universal. From speaking of slavery with hushed breath, its bold abettors now shout forth its praises. From providing for the extermination of the African slave trade, they have converted the slave states into another Africa, this side the tropics; and by the successful robbery of a neighboring republic, they seek to create a new America, so that the slave trade, once abolished and declared piracy, may be revived and legalized. The Middle Passage is to be transferred from the ocean to the land. Maryland, Virginia, Kentucky, &c., are to be the Gold Coast, Benin, and the Galinas; the place of supply, the place of demand, and the highways of commerce between them are to be within our own borders and protected by the American flag; and that horrid traffic which all the leading nations of Christendom united in declaring to be a felony punishable with death, is now to be maintained and defended amongst ourselves, under penalty of death and a dissolution of the Union.
Nor does it suffice that the tide of slavery should rise and overflow the vast and uninhabited regions of the west. It surges up against the free states themselves, and all the dikes and barriers of that constitutional law which we have been enacting for seventy-five years, cannot stay its flood. We thought that Massachusetts was the impregnable citadel of freedom; but unconstitutional and inhuman laws, dictated by slaveholders, are now enforced amongst us, and at our very doors; and our services are commanded for their execution.
Thank God, there is a part of our people who, while they suffer, resist. Only a portion amongst us have reached that lowest depth of degradation, where they surrender, not their limbs only, but their wills, to the hateful service of their masters. Slavery has done its perfect work only when the soul is enslaved. I rejoice to believe that we have not only seven thousand in this our Massachusetts Israel, who have not bowed the knee to Baal, but seven hundred thousand; and recent events foretell not only an increasing number, but a more determined opposition.
Why is it, fellow-citizens, that Massachusetts stands first, or among the first, in 1851, in her hostility to the Fugitive Slave law? I answer, for the very reason that she stood first in her hostility to the encroachments of the British crown in 1776. And in less than seventy-five years from this time, those who oppose and those who defend this inhuman law, will stand, historically, as wide asunder, and will share as high an honor or suffer as deep an ignominy, as is now awarded to the lovers of freedom and the minions of power who lived at the era of the revolution. Let all young men beware not to be seduced by any temptations of immediate profit or mistaken honor, to lift a hand in defence of this law. If they do, then, before they have lived out half their lives, they will be as ready as old Cranmer to thrust the offending member into the flames, and to say with him, “This hand, this wicked hand, has offended.”
Gentlemen, we in Massachusetts are a Union-loving, and law-abiding people. Mr. Webster and his “retainers” may spare their breath in exhorting us to abide by the Union. Such a work, in this commonwealth, is a work of supererogation. He knows, and they know, that the number of disunionists in this state can be counted on a man’s fingers and toes. Whatever influence they exert must flow from their zeal, their talents, and their private character; for they derive none from numerical force. Were they all to settle in one of our small towns, they would be out-voted by its inhabitants. I regard these ever-repeated appeals made to Massachusetts men and to New England men to stand by the Union, as not merely obtrusive, but as affrontive and insulting. Besides, when a man undertakes the mission of going round the country, preaching honesty, or temperance, or chastity, he provokes the inquiry whether he is more honest, temperate, or continent than those whom he exhorts. If the union of these states now is, or has ever been verging towards a point of danger, it is solely and only because ambitious men and mercenary men at the north have given it that direction by recognizing southern threats and bravadoes as realities, and thus encouraging them. Let the greatest coward see that his threats are acknowledged as verities, and he will adopt the cheap mode of threatening instead of the hazardous one of acting. Could the Chinese have frightened away the British fleet by their battery of wooden cannon, having the middle of the ends painted black for a muzzle, they would have been fools to incur the expense of brass or iron. But John Bull did not care whether the cannon were of wood or of metal, and at his first fire the Celestials scampered. But here, when a few men in a few states pointed their wooden guns at us, Mr. Webster, General Cass, and others, for their own ambitious purposes, cried out that the Union was in danger. I say, then, if the union of these states ever has been in any proximity to danger, it was not from menaces uttered by the south, but from northern indorsement of them. If northern leaders had dishonored instead of indorsing this spurious paper, it never would have got into circulation.
We are not only Union-loving men, but, as I said before, we are law-abiding men. Had this not been so, not all the fleets and armies in the world could have carried Thomas Sims into bondage. So intimately blended is the reverence for law with the very soul of our people, that if you could convince them that a statute has legal force and is binding upon the conscience, I verily believe our juries would give a verdict in favor of Shylock, though the pound of flesh which he claimed were to be carved from their own bosoms. This side of a just cause for revolution, they will yield submission to all laws enacted by the government, with one single exception. The exception I mean, embraces those laws of men which are clearly contrary to the law of God. And I trust the time is not now, and never will be, when the children of the Puritans will obey any commandment of human origin if it conflicts with a divine command, though they have to lie down in lions’ dens or walk through furnace fires, as the penalty of disobedience.
But with this sentiment of reverence for law is another sentiment, which is its proper attendant and brother,--I mean a desire and a determination to know what that is which is called _law_; what it is that claims this prerogative of controlling the will and challenging the conscience. It is in this spirit that they have discussed and mean to discuss the Fugitive Slave law, and to bring it, Protestant fashion, to the test of individual judgment and conscience.
I have no need to repeat to you the general provisions of this inhuman enactment. No lover of liberty can read them without having their atrocious character burned into his mind ineffaceably. You know that it assumes to dispose of the highest interests of human liberty,--the liberty of soul as well as the liberty of person;--and you know that it also assumes to dispose of the most precious interests of property,--the property that a man has in himself and in all his capacities of physical enjoyment and suffering as well as his property in his money or his goods;--without a single one of those safeguards and protections which the constitution of the country builds up like a rampart of defence around us all. This enactment, too, is no theoretic affair; it is no dead letter on the statute book. It is a living monster, uncaged and turned loose amongst us, to rob and devour at its will.
Now, I have two objections to this law, which absolve me from all obligations to execute it, or, in any way or manner, to assist in executing it. First, I believe it to be contrary to the law of God, which, God helping me, shall be the rule of my conduct, though I should scatter political treasons as the autumn wind scatters leaves. In his dread description of the judgment day, Jesus Christ makes the distinction between saints and sinners to turn upon the fact, whether they have fed the hungry, clothed the naked, and visited those who were sick and in prison. And who so hungry as those who do not own, and cannot own a morsel of bread? Who so naked as those who do not own, and cannot own a shred of a garment to protect them from cold, or from the lascivious eye? And what confinement was ever so hopeless as southern slavery, what prison was ever so deep as that prison-house which holds three millions of our fellow-beings within its melancholy walls,--them and their posterity forever? He that refuses the common acts of hospitality to these victims, when fleeing from their bondage, denies his Lord and Master. He that refuses them, disobeys every precept of the Savior, and has no more right to call himself a Christian, than has the Fejee islander, when he rises from his cannibal banquet. He is the Levite who passes by on the other side.
And next, I hold this law to be contrary to the constitution of the United States, and therefore of no binding force upon my conscience or my conduct. I do not mean to say by this that I shall make forcible opposition to it. I take the Quaker ground upon this subject; I will not assist to execute it, though I shall suffer it to execute itself on me.
The constitutionality of this law has been extensively discussed. But there is this broad difference between the arguments of those who affirm and those who deny that it is constitutional. Those who deny it, argue the question upon its merits, upon principle, upon those legal relations and analogies that so nobly characterize the English law on the subject of human liberty. But those who affirm the constitutionality of the law, base their argument upon technicalities and upon precedents, and they cannot sustain themselves for a moment on any other ground. They found themselves, in the first place, upon the statutory precedent of 1793, which was an act passed with very little deliberation, as its history shows, and passed, too, when it was expected on all hands that slavery would soon die out. In the next place, they rely upon the judicial precedent of Prigg’s case, which was made by a bench of slaveholding judges, and some of the points which the court professed to decide did not arise in the case.
Now the statutory precedent covers only a part of the case; for some of the most hateful features of the law of 1850 are not to be found in the law of 1793; and the supreme court has never passed upon the law of 1850 at all. So two points are clear in the outset, that the champions of the law cannot get along without the precedents, and the precedents, in several most important particulars, fail them altogether.[21]
This question has lately been discussed in our own vicinity. The liberty of a resident of Massachusetts,--a man every way entitled to a jury trial by our constitution and laws, as much as you or I,--has been sacrificed by a United States commissioner in the city of Boston.[22] He has decided in favor of the law. You would naturally suppose that, in order to shelter himself from the odium of such a decision, he would put all personal and all collateral resources into requisition to make the case as plausible as ingenuity can make it. It is said, too, that Mr. Webster and Mr. Webster’s friends, and the commissioner’s friends have contributed of their strength to help the debility of the case. While the cause was pending before him, one of the points involved in it was brought before the supreme court of Massachusetts, and also before the circuit court of the United States. The commissioner adjourned the case over after all the arguments of counsel were in. He thereby gave himself an opportunity for preparation and for consultation. I am taking no exception to all this. I am glad it was done. I suppose we now have the breadth and length and strength of what can be alleged in favor of the law. I never feel so confident of my conclusions as when strong men have taken the opposite side, and have failed to sustain it.
Now, to this decision of the commissioner, made under such incitements, and with such opportunities, I propose to invite your attention. The discussion may be dry, but it will not be uninteresting; for it involves matters as important as the liberty of the body and the liberty of the will, and the liberty and life of the human soul.
It may be said that these are legal and constitutional questions, and, therefore, that unprofessional men cannot understand them. But most, if not all the points which I shall bring to your attention, are matters of intuition; questions wholly within the jurisdiction of plain common sense, and such, therefore, as can be decided by you as well as by lawyers or judges. And if I can convince you of the inconclusiveness of some parts of this decision, of the legal Jesuitism of other parts, and of the self-contradiction that pervades the whole, you will not hesitate to set it aside, not as null and void merely, but as discreditable to the profession of the law, and dishonorable to the State of Massachusetts.
The first point which the commissioner discusses is, whether in seizing, by his warrant, a man actually free, in deciding, by his judgment, the exact question, whether that man were a slave, and in sending him, by his certificate, where the lash and the law of slavery apply to his body and his spirit, he were exercising “_judicial power_,” as conferred by the constitution of the United States upon such courts as _Congress_ should establish. He at first decides that he does _not_ exercise such power. This was well; for he knows that he was never appointed, nor commissioned, nor sworn, nor is paid, nor removable from office for mal-conduct, as is prescribed by the constitution in the case of judges. Badly heroic as he was, _in fact_, in exercising jurisdiction over a human being, and delivering him over into hopeless and irremediable bondage, he was not mad enough to arrogate, _in terms_, the prerogative of “_judicial power_.”
But what says his superior, the attorney-general of the United States? In an elaborate opinion, given by order of the President of the United States,--an opinion which, as I suppose, passed under the supervision of the whole cabinet, and therefore may be presumed to have the authority of Mr. Webster and the other constitutional advisers of the President, and which certainly had the sanction of the President himself, for he acted upon it,--in this opinion the attorney-general says,--
“These officers, [the commissioners,] and each of them, have _judicial power_, and jurisdiction to hear, examine, and decide the case.”
“The certificate to be granted to the owner is to be regarded as the act and _judgment_ of a _judicial tribunal_, having competent _jurisdiction_.”
“Congress has constituted _a tribunal_, with _exclusive jurisdiction_ to determine summarily, and without appeal, who are fugitives from service.”
“The _judgment_ of the _tribunal_, created by this act, is conclusive upon all _tribunals_.”
Now, which is right, the attorney-general, with the President and his cabinet as indorsers, or Mr. Commissioner Curtis? I submit to you that the former were clearly right, so far as this,--that when the constitution declares that “no person shall be deprived of life, liberty, or property, without due process of law,” (which imports a trial by jury,) then neither Adam Gibson, nor Thomas Sims, nor any other alleged fugitive can be so deprived, without trial by jury, _and the judgment or sentence of the “judicial power” thereupon_. The following position has never been answered, and I think never can be, namely, that if a resident of Massachusetts can be deprived of his “liberty and property,” without a trial by jury and a judgment of a _court_, then he may be deprived of his life also; for “life, liberty, and property” are secured in the same section, in the same sentence, and by the same safeguard.
The attorney-general held that, as the power exercised by the commissioner was a “judicial power,” it deprived the party of all benefit from the _habeas corpus_. And there was some plausibility in this, though, I think, no soundness. But our defenders of the law hold that this sending of a man into bondage is not a part of the “judicial power,” and yet that it deprives him of all benefit of the _habeas corpus_. That is, they hold that a man may be deprived of his liberty and property, (and of course of his life,) _by a ministerial proceeding_, not having its origin in any court, and not to be prosecuted to final judgment in any court, and yet that all the courts in the land, competent to furnish relief in any other case, can afford none in this. If this be true, if a proceeding, held and acknowledged by the officer who initiates and conducts it to be a ministerial proceeding, not originated by a court, and never to be carried before a court, does thus take away the trial by jury, and the security of having one’s liberty and property adjudicated upon by a “court,” and renders the writ of _habeas corpus_ an empty form, then, indeed, we may bid “farewell, a long farewell” to all our liberties. An unprincipled majority of Congress has only to pass a law that any man may be imprisoned or hanged on an executive warrant, and that the hireling marshal or commissioner shall suffer no “molestation by any process issued by any court, judge, magistrate, or other person whomsoever,” and despotic power will be enthroned here as effectually as it ever was in England in the bloody days of the Stuarts. Jeffries was at least a judge, though he acted like a commissioner.
Who could have imagined, eight months ago, that a _ministerial_ proceeding could put a citizen beyond remedy or reach of our _courts_?
I now come to a position in the commissioner’s argument which is not only transparently fallacious, but is contradicted by himself, in the same opinion, again and again. I shall offer a series of objections to it.
The point was pressed upon him by counsel that he was exercising “judicial power.” To maintain this, a passage was quoted from Prigg’s case, in which the court say, “A claim made by the owner out of possession for the delivery of a 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.” Can any thing be more explicit and conclusive, to prove that the commissioner was then presuming to exercise a part of the “judicial power” conferred by Congress exclusively upon courts? And how does he answer it? In this way, and in this way only. He says the court decide two points:--
First,--That a claim for a fugitive slave is a case arising under the constitution of the United States, and so within the grant of “judicial power” as given by the constitution; and
Second,--“That being such a case, belonging to the judicial power of the Union, it was for Congress to regulate and prescribe the remedy, the form of proceedings, and the mode and extent in which the judicial power of the Union should be called into activity.”
He then declares his full admission of _both_ these propositions. And how does he answer the _first_ one, which, at a blow, unseats him from his usurped bench? He says, “The counsel for the prisoner have insisted most strenuously on the first of these positions, but have said nothing with regard to the second.” And what need had the counsel to say any thing about the second, _the first being admitted_? The supreme court had said, and he acknowledged it, that every case like the one then before him was a “case arising under the constitution of the United States, within the express delegation of judicial power given by that instrument.” This was equivalent to saying that it was a case which could not be adjudicated upon by a commissioner, because a commissioner is not a judge,--is no court nor part of a court. The plain statement of the commissioner’s language is this: The supreme court declare that I have no jurisdiction in this case; but because the counsel said nothing about another point to be found in the opinion of the court, therefore I will take jurisdiction.
But again; this reply of the commissioner, that the counsel said nothing about the second point, (when he had acknowledged the validity of the first, which was fatal,) is not merely an evasion; it is founded upon a false meaning attributed by him to the second point. He says the court held that it was “for Congress to regulate and prescribe the remedy, the form of proceedings, and the mode and extent in which the judicial power of the Union should be called into activity.” Suppose it was for Congress to do this. Might they not transcend their power when doing it? and does not his admission of the first point prove that they have transcended their power?--the very point then in question. The two things cannot stand together. If the trial of the issue, “fugitive slave or not,” be, “in the strictest sense,” “within the express delegation of judicial power given” by the constitution, then this ministerial commissioner cannot exercise it, and Congress cannot empower him to exercise it. Besides, the decision of the court was made in 1842. The law, whose constitutionality they had then under discussion, was passed in 1850. Did the court in ’42 declare, or could they declare, that any law _thereafter_ passed by Congress on this subject should be held constitutional? Did their decision act prospectively, and adjudge a law to be constitutional, which was to be passed eight years afterwards? So far from this, the points then under discussion,--namely, the power of a commissioner to adjudge a case more important than life or death, and the obligation of a commissioner to hear _ex parte_ evidence, and to be concluded by it when heard,--these questions did not come before the supreme court in ’42, and have never been before the supreme court at all. But because that court had said, years before, that it belongs to Congress to prescribe the mode of recovering fugitive slaves, _therefore_, says the commissioner, if Congress should vest this power in commissioners, (and in slave traders or pirates just as well,) it would be valid. And because the counsel did not answer this point, the commissioner decides an admitted point, conclusive in their favor, against them.
But this is not all. After declaring, in the first part of the opinion, his full conviction that the delivery of an alleged fugitive comes within “the express delegation of judicial power,” he uses, farther on, the following language: “It would seem,” says he, “that it only remains to inquire whether the act of 1850 authorizes or requires any thing more than a summary ministerial proceeding in aid of the right secured by the constitution, namely, the right of removal.” And he holds that it does not. The act which, in the first part of the opinion, was acknowledged to belong, “in the strictest sense,” to the “judicial power,” has now ceased to be “_any thing more_ than a summary ministerial proceeding.”
And again he says, “I have endeavored, in the foregoing discussion, to show that this is a summary ministerial proceeding,” &c. “If this be so, _and I can entertain no doubt that it is_,” &c. This sudden transmigration from a judge to an executioner, from one who acknowledged that the delivery of an alleged fugitive is an act of “judicial power,” to one who holds that it is NOT “_any thing more_ than a summary ministerial proceeding,” may suit a disciple of Pythagoras, or the priests of the Hindoo religion, but it ill becomes an expounder of American jurisprudence.
I proceed to another point in the commissioner’s decision, namely, the nature and authority of “judicial power;” and when I have discussed it, I shall submit to your good sense whether I do him any injustice in saying that it is most perspicuously fallacious and lucidly absurd.
“In all governments formed upon the English model,” says he, “there is a certain class of inquiries, [powers?] judicial in their nature, but which are confided to officers not constituting a part of the judiciary, strictly so called.” (I do not like this substitution of the word “inquiries” for “powers.” If any thing under heaven should be called a _power_, the prerogative of sending a human being, presumptively free, into bondage, is surely one.) He then instances certain officers in Great Britain, who, though not judges, perform, as he says, certain judicial functions. A brief remark will suffice for this. Great Britain, having no written constitution, the current of its legislative enactments and its judicial decisions makes its constitution. If, then, it has been the prevailing practice of that government to confer any given description of powers upon any given class of officers, then that is what the British constitution allows and approves.
But we have a written constitution, and therefore are not to tolerate a law, (as in the case of this Fugitive Slave law,) which is repugnant to its fundamental provisions. By this constitution, all legislative powers therein granted are vested in Congress; executive power in a President, and judicial power in the courts. The constitution of Massachusetts is equally explicit. It says, “In the government of this commonwealth the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.”
In both these constitutions, the three functions of government, namely, to legislate, to adjudicate, and to execute, are expressly recognized; and the _whole_ of their distinctive powers are lodged in separate departments. No mention is made of any hybrid or mongrel class, half judicial and half executive, or half ministerial and half judicial, or compounded of aliquot parts of each. Such an officer, under either constitution, would be a monster; he would hold the same relation to their legitimate functionaries that Caliban does to the human race; and, if created for executing the Fugitive Slave law, that half devil and half beast would be the fitting prototype.
The commissioner professes to have found a class of cases, both under our state and national constitutions, where powers, “judicial in their nature, and special in their purpose, may be confided to the determination of officers who are not judges.” On this point he has expended himself. Here lay the pressure and travail of his case. Seeing that, in deciding the great issue before him, “slave or free,” he was exercising judicial power, and in ordering an armed force to convoy the victim to his house of bondage he was exercising ministerial or executive power, (thus blending the functions which both constitutions have separated,) the commissioner felt that he must find some analogy or some precedent to cover up this obvious violation of all principle, or his argument was in ruins. It is in ruins; for he has found no such precedent, and cannot find any.
The instances he cites from Massachusetts are,--1. Sheriffs, who may preside over juries when assessing damages for laying out highways, and may decide such questions of law as arise on the trial; 2. Auditors, who may examine vouchers and state accounts between parties, and make report thereof to the court; 3. Commissioners of insolvency, appointed to distribute insolvent estates; and, 4. County commissioners, who lay out highways.
Now, nothing can be clearer than that, in no one of these cases does the officer named exercise “judicial power.” Indisputably, universally, and necessarily, by force of the phrase itself, the term “judicial power” embraces the idea of a _power_ whose decision can be enforced _in invitum_; that is, against an unwilling, contesting, resisting party. The sublime power of a court becomes nothingness, and is ridiculous, if its decrees cannot be executed to the very death of the party against whom they are made. For this purpose, they are backed by all the civil power of the state; and should this prove insufficient, they are backed by all the military power of the state; and, even beyond this, by the whole military and naval power of the United States. Without this, judges are but puppets, or no better than “men in buckram.” “Judicial power” does not consist in a sheriff’s presiding over a jury, nor in an auditor’s casting up accounts, nor in a commissioner’s ciphering out the dividends of an insolvent’s estate, nor in county commissioners’ laying out roads; but it consists in entering up a judgment which has the armories at Springfield and Harper’s Ferry, which has the standing army and militia of the United States, which has fifty line-of-battle ships, which has the treasury of the nation, to back it, and to visit with death one man, a thousand men, or a hundred thousand men, if need be, who shall confront it with resistance.
Look, fellow-citizens, at this wretched sophistry. The sheriff must make return of the verdict of the jury to the court of common pleas,--_which is a_ COURT,--and if either party suggests good grounds of dissatisfaction, the whole proceeding is a nullity, and the investigation must be made again; and again and again, and ten times again, until every act and letter of it become unexceptionable. The auditor must make his report to the court that appointed him, and if the court see cause, they set aside both it and him. The acts of the commissioners of insolvency derive all their validity from the consent of the parties, or from the judgment of a court, which substitutes the force of law for consent. And no act of the county commissioners, in taking a man’s land, is worth the paper it is written on, until the verdict of the jury is returned to the _court_ of common pleas, and there formally accepted and recorded. Nay, every intelligent farmer in the country knows the fact, that though the commissioners have laid out a new road, or ordered an old one to be shut up, still, if a party, feeling himself aggrieved, demands a jury, the former cannot be worked, nor the latter closed, until the _court_ of common pleas shall have passed upon the proceeding and ratified it.[23]
If, however, in all the above cases, the parties in interest _consent_ to the acts of sheriff, auditor, or commissioner, then those acts become binding, by virtue of such consent. The party consenting is afterwards estopped from questioning them. But they derive no authority from any “judicial power” vested in the officers performing them. We have a case more exactly in point, and better illustrating the principle, in the fourth section of the ninety-seventh chapter of our Revised Statutes, where it is provided, that “in actions upon promissory notes and other contracts, where the amount due appears to be undisputed, the debt or damages may be assessed and ascertained by the clerk, either under a general order of the court, or by a special reference of the case to him; and the judgment, in either case, shall be entered in the same form as if it had been awarded by the court, on an assessment or computation made by themselves.” Yet who will pretend that this act of the clerk, which is performed only where there is no dispute between the parties, emanates from any “judicial power” in that officer?
The instances cited under the United States constitution have, if possible, still less plausibility. The commissioners appointed by the courts can initiate certain proceedings, by holding parties to trial, &c., but this function is no more _judicial_ than that of the grand jury in finding an indictment. It is a preliminary to a judicial act, but not such an act. The commissioners are not even required to be sworn, and, in many instances, it is known they are not sworn.
So of the case of which so much is attempted to be made,--that of the commissioner of patents. Any party feeling himself aggrieved by any of his decisions can appeal directly to the courts of the United States for redress.
Compare all this with analogous instances in the legislative department of government. The legislatures of most of the states have created commissions to revise their codes of statute law. Massachusetts has had several such. Our revised statutes are a monument of the labor of one of these commissions. But were they legislators? _Was their proposed code of any validity until enacted by the Senate and House of Representatives?_ Just as much as the acts of sheriff, auditor, or commissioners of the different kinds, were acts of judicial power, and no more. Are the selectmen of our towns legislators, because they decide, in the first instance, who are elected as members of our House of Representatives? Are our governor and council legislators, in both the state and national governments, because, on an examination of votes transmitted to them by the selectmen, they issue certificates of election to our state senators and to the members of Congress elect? Do they exercise any part of that power which makes “each house the judge of the elections, returns, and qualification of its own members”? Just as much, I reply, as sheriff, auditor, commissioner, or clerk, does of “judicial power.” They perform acts preliminary or antecedent to legislation, but no legislative act; just as the above-named classes of officers perform acts preliminary or antecedent to judicial decisions, but never, in any case, the authoritative and compulsory judicial act itself.
The strength, or rather, the weakness, of the commissioner’s argument, on this point, consists in the obtrusive, projecting, self-shouting fallacy of using the exact, technical, constitutional phrase, “judicial power,” as synonymous with the popular expression, “_a judicious act_,” or “_the exercise of judgment_.” Officers of all kinds exercise “judicial power,” in this broad and popular sense of the phrase; that is, they perform acts requiring good judgment. Umpires, arbitrators, and referees perform acts precisely like those of judges, but they cannot put the whole physical strength of the government in motion to enforce them. So sheriffs decide upon the identity of the party named in their precepts; postmasters, to whom they shall deliver letters, and what postage they shall demand; custom-house officers, upon the nature and value of dutiable goods; assessors, in levying taxes; parents and teachers, on matters of discipline, &c., &c. In a popular sense, they may all be said to exercise judicial power; but no particle of that power which, by the fundamental law of our government, is vested in the “courts.” Their acts are all examinable by the courts. They cannot set the arm of the government in motion to execute their judgments. Indeed, the whole argument of the commissioner on this point is but a play upon words. It is only a trick of verbal legerdemain. The premises he starts with are unknown to the constitution, and the conclusion he comes to is abhorrent to humanity.
Does not every body see that, in order to make the cases parallel, in order to obtain any legitimate ground of comparison between them, Sims should have had the same power of appealing from the commissioner’s decision, to a court, which power of appeal belongs _of right_ to a party who feels aggrieved by the act of sheriff, auditor, or commissioner; and that the certificate should bind him only by his voluntary assent?
But there is another point in the commissioner’s opinion which is worthy to be companion to this. I proceed to consider it.
He repeats, and keeps repeating, that his decision, dooming Sims to all the horrors of bondage, and putting him under the control of a man who claims title to his body and his soul, to be carried into a jurisdiction where such titles are acknowledged, is not “FINAL.” It is not _final_, he says, because if Sims be free, he may extort that freedom from the laws of Georgia which has been denied to him by the laws of Massachusetts; that is, if the judgment which the commissioner is giving against a free man, in a free state, is a false judgment, he may go to a slave state to obtain redress,--which is ten thousand times worse than if a jury, in a capital case, should say, We may find this prisoner guilty; for if he be wrongfully hanged, God will make him amends.
Besides the inhumanity of this position, it contains a fallacy which is twin-brother to the one just considered. The judicial word, “_final_,” has a legal, technical, and certain meaning. In the courts, and in the law books, it means the last judgment in a judicial proceeding. It means that judgment from which a party cannot appeal, though he may ever so much desire it; or it means that judgment, after which, however dissatisfied the party may be, he cannot have his cause retried or reheard by a court, _but is compelled to submit_.
“Final judgments,” says Blackstone, “are such as at once put an end to the action.” This is a precise description of the judgment rendered by the commissioner against Sims. That victim resisted by prayers and tears, by the subduing eloquence of his counsel, and by their irresistible logic, which the commissioner has never yet begun to answer. But the self-constituted judge was inexorable. Though he knew that, according to the terms of the Fugitive Law, there was no escape from his decision; though he knew that his certificate was to protect the man-hunter from all “molestation by any process issued by any court, judge, magistrate, or other person whomsoever,” yet, like Pilate, he washes his hands and says, “I am innocent of this man’s blood, see ye to it;” for my decision is not “final.” And why? Because, in another jurisdiction, in another suit, where the plaintiff is to be defendant, and the defendant plaintiff, or perhaps against another party; in a place, too, where all the common-law presumptions in favor of freedom are reversed; where the law is different, and the rules of evidence are different; and where the respondent himself is reduced to the condition of a chattel and a brute, a decision, at some indefinite future period, may be had that the man, whom the commissioner now declares to be a slave, is free, and has always been so. Because of this future and contingent event, because of this almost impossible possibility, the commissioner’s decision is not _final_. I deny this. The decision is _final_, because, as Blackstone says, it “at once puts an end to the action.” But let us test the question, not only by its legal definition, but by its actual effects. It decides that Sims is a slave. It decides that he owes service to James Potter. It decides that Potter and his heirs and assigns forever are the lawful owners of Sims and the heirs of his bondage forever; and when Sims and his posterity shall be scourged, torn, flayed, mutilated, starved, the only consolation which the commissioner has for him and them is, Shall the clay say to the _Potter_ that fashioneth it, What makest thou? It not only decides that Sims is a slave, and that he shall be sent to Georgia, but it sends _familiars_, like those which once disgraced even the purlieus of the Inquisition, to see that the devilish deed is done.
The whole argument of the commissioner, that this act of his is not _final_, is founded on a quibble,--on the use of the legal word “final,” as though it were synonymous with the popular word _eternal_ or _perpetual_. The slavery of Sims may not be _eternal_ or _perpetual_; because, by some miracle of God, or otherwise, he may escape. But in a technical and juridical sense the decision of the commissioner is _final_; and he might as well doom a man to be hurled from the Tarpeian rock, and say that the act is not final, because he only commits the victim to the laws of gravitation, as he has committed Sims to the laws of Georgia.
If by any possibility this doctrine, that the decision is not _final_, could be for a moment sustained, then I will submit a case with which to compare it.
The constitution says, “No state shall pass any law impairing the obligation of contracts.” Here we have a constitutional basis,--the same as for the reclamation of fugitive slaves. Some states have passed laws impairing the obligation of contracts, as the stop-laws of Kentucky, and so forth. Suppose a Massachusetts creditor to claim to have a Kentucky debtor, whose contract has been so impaired. Could Congress, in order to give efficacy to this constitutional provision, authorize this pretended creditor to go to Kentucky, seize enough of the alleged debtor’s property to satisfy the alleged debt, and carry it home, or have it ordered home by a magistrate, under some “summary” process, which, on its face, excludes the trial by jury; and thereby debar the supposed defendant of all right under that provision of the constitution which gives a jury trial when the value in controversy exceeds twenty dollars? And could the Kentucky magistrate, in the supposed case, deny the jury trial on the ground that the proceeding before him was not “final,” because the defendant might follow the plaintiff to Massachusetts, and there institute an action of replevin, trespass, or trover, to try, before a jury of the country, the right of the former plaintiff to the property he had seized?
The commissioner says much in different places, with the apparent hope of showing that the proceeding before him was only for what he calls a “limited and special purpose,” namely, “_removal_.”
I confess myself unable to understand why the certificate of the commissioner is any more restricted to a limited and special purpose than any judicial act, sentence, or execution, of any court whatever. The commissioner declares a _prima facie_ freeman to be a slave. He declares that James Potter owns Thomas Sims, and the posterity in his loins forever; or that Thomas Sims and his posterity forever, owe service to James Potter and his heirs and assigns forever. Does this “_forever_” limit the meaning of the certificate, as to time? If so, then a _general_ or _unlimited_ award or execution, against Sims, as contradistinguished from this _limited_ and _special_ one, must extend and run into the next world. When our courts decide that one man owes another man money, they award execution against his property, with certain humane exemptions as to clothes, furniture, provisions, school books, Bible, &c. But when this commissioner decided that Sims owed Potter service, he awarded a certificate against the adjudged debtor, which made no exemption whatever; but included property, clothes, books, skin, flesh, heart, brain, soul, and all that was in him, or of him, with all appurtenances and appendages, present emblements, and future increase. Yet, according to the commissioner, the first judgment is a common or general one; the last “special and limited.” Under our old laws, (and under the laws of some states yet,) courts could sentence offenders to the barbarous punishment of flogging. But they were and are bound to specify the number of lashes. This is general. The commissioner delivers over a slave to be flogged by his master, _ad libitum_, and _in perpetuum_, to be flogged in his own person, and to be flogged in the persons of his children, and their posterity, _in secula seculorum_. The defined flogging of thirty-nine, or such other number of lashes as can be computed, the commissioner calls general or indefinite. But the incomputable number of lashes; the vast, unknown, algebraic quantity; the infinite series; that which Newton with all his mathematics could not compass, nor Rosse with his telescope see the end of,--that is “special and limited.” The taking of a limited amount of a man’s property, carefully set down in dollars and cents, both in the text and in the margin of the execution, the commissioner calls a general purpose. But the robbing of a man, not only of all he has earned, but of all his capabilities of earning as long as he breathes, with full authority to do the same thing to his posterity to the latest generation, this is “special and limited.” To sentence a man to be hanged by the neck till he be dead, though with privilege of priest, prayer book, and Bible,--this, too, is general and proper; though in Massachusetts it can be done only by a majority of the judges of the supreme court. But to send a man to be worked to death in five years on a sugar plantation, where his being taught to read the gospel of Jesus Christ is a felony,--this is “special and limited,” and so may be done by any hireling commissioner who will do what Judas did for one third part of his silver pieces.
Fellow-citizens, I submit to any man, clerical, legal, or lay, who is capable of appreciating moral distinctions, whether this whole doctrine, about delivering a man up as a slave, and putting him bodily into the hands of the claimant, and thrusting him into slave jurisdiction, under the pretext that it is done only for _the special and limited purpose of removal_, be not atrocious. It is more like a forgery than an argument. Assumed learning and logic never practised a greater imposition upon themselves, nor attempted a greater one upon others, than when they fabricated this notion, that adjudging a man to be a slave, stripping him of his _liberam legem_, that is, of all his rights and immunities as a citizen, and delivering him into actual bondage, is “for a special and limited purpose of removal,”--only to give him a voyage, or a pleasure excursion of a few hundred miles,--_out,--but not back_. When the successor of St. Peter, claiming to hold the keys of heaven, and to have death and hell for his ministers, excommunicated whole sects and peoples, and delivered them over to the great soul-hunter, and sent his _familiars_ with them to see that the “claimant” suffered no “molestation” while conveying them to the bottomless pit, _he_ might as well have said that he did it only for a “special and limited purpose.” It was not damnation, it was only “removal.” And do you suppose the devil, could he have got possession of those outcast souls, would have cared any more under what pretence the great pontiff commissioner made the delivery, than does the southern slaveholder, when he gets possession of a man of whom he can make a slave?
This fallacy about the “special and limited purpose of removal” did not originate with Mr. Commissioner Curtis. I exculpate him from that guilt. He only adopted it and gave it a “bad eminence” by making it, in part, the basis of his decision. But henceforth let the people brand it. Let them classify it and denounce it, and detest it, as belonging to that impious and blasphemous kind of arguments by which our first parents were beguiled, when Satan told them that, though they sinned against God, they should not die; or by which Mr. Webster cajoled and cozened so many honest men, when he assured them, that though they should violate the moral law, by opening all the territories to slavery, yet some physical law of geography or the weather would avert the penalties.
In the absence of all decent materials for an argument, the commissioner resorts to that ten times exploded position, that there is an analogy between fugitives from justice and fugitives from service. Where could he find a bandage of prejudice thick enough to blind him to the distinction, that the condition of delivering up the former is that he be _charged_ with crime, while the condition of delivering up the latter is that he be _held_ to labor, and that he _owes_ service? How can it be said that a man _owes_ service, until the _fact_ of the _indebtedness_ be proved? Such reasonable suspicion of guilt as justifies a grand jury in finding a bill of indictment is sufficient in the one case, but such positive proof as would require the court to enter up judgment and award execution is absolutely necessary in the other. The government demanding a fugitive from justice seeks possession of him for a trial, _before a court and jury_, of the question of _criminality_; but the claimant of an alleged fugitive from service seeks possession of him to avoid a trial, _before a court and jury_, of the question of _freedom_. The constitution requires that every person accused of crime shall be tried in the state and district where the crime shall be charged to have been committed; but it makes no such provision in regard to the alleged fugitive from service; and this injunction in the one case, and omission in the other, create the irresistible inference, that there is a difference between them, and that the alleged fugitive from service, according to all the analogies of the common law, is to be tried where he is found.
But there is one distinction which is broad enough and luminous enough to make a blind man see it. An alleged fugitive from justice is not adjudged to be a criminal previous to delivery, nor is he made a criminal, in the eye of the law, by the act of delivery. But the alleged fugitive from service is adjudged a slave, and made a slave by the certificate of the commissioner. The state receiving a fugitive from justice does not proceed forthwith to punish him. But the receiver of an alleged fugitive from service _owns_ him, and may proceed to control him, and beat him, and rob him, and starve him, on the very instant that the commissioner puts the certificate into his hands. If any one cannot see this distinction, no act of the moral oculist can give him sight.
The papers inform us that when Sims was landed in Savannah, he was taken to jail and received the “_usual reprimand_,” which, as every body knows, is a flayed and blood-streaming back. By whose certificate was the nine-thonged cat laid on? Had he been a murderer or a pirate, would excoriation have been the first act of welcome on his arrival? No! Murderers and pirates would have had a jury. The law is beneficent to them; it saves its terrors for the slave. A man who will not _see_ such a distinction as this, would excite no pity should he be made to _feel_ it.
In treating this topic, the commissioner makes one assertion that seems insane. He says that, to authorize the delivery of a fugitive from justice, in order to his removal, “_it must be proved that he has committed a crime_.” Such a declaration was never made before, and I do not believe it will be ever made again. You could not find a lawyer south of Mason and Dixon’s who would venture to say this. Every body knows that the supposed criminal needs only _to be charged_ with crime. It is the alleged slave who must be proved to _be held_ to service before he can be constitutionally surrendered. But as though this was not absurd enough, the commissioner goes on to say, that though the alleged fugitive from justice must be proved, in the place where he is taken, “to have committed a crime,” yet, after his removal, he must be proved again to have committed it. How can a man be proved, in any legal way, to have committed a crime, without being confronted with the witnesses against him? Why, after having been so proved, is he put upon trial again?
As to all the commissioner says in denial of the right of trial by jury, I shall make but one or two remarks. I have argued that question elsewhere; and, until I see some answer to that argument, I have no occasion for repetition or corroboration of it. After using the word “_person_” some twenty times, to signify the President of the United States, electors, senators, representatives, United States officers, Indians, Africans, &c., the constitution declares that “no _person_ shall be deprived of life, liberty, or property, without due process of law;”--this “due process of law” meaning trial by jury. This is one fact. Adam Gibson, Henry Long, Thomas Sims, and many others, some of them now acknowledged on all hands to have been free, have been sent into slavery without this trial. This is another fact. Now put these two facts together. No man shall be deprived of liberty or property, except by the jury trial. These men have been deprived of liberty and property without the jury trial. These are the two ends. Now fill up the space between them with what you please, and call it argument, law, gospel, or what you will, every body must see that it is nothing, and can be nothing but Mephistophiles’ jugglery. I dismiss this point with a single proposition: In Massachusetts, we know no legal distinction founded on color. Through all the gradations, from the person who has the preternatural whiteness of an Albino to one whom you can see in the darkest midnight, because he is so solid black,--all, _all_, under our constitution and laws, are alike freemen, or alike slaves. Notwithstanding the commissioner’s decision makes us all slaves, yet I maintain that, in the eye of the law, we are all free. How then can any one of us freemen be robbed of liberty and property, and turned into a slave, but by freeman’s proof,--that is, trial by jury? I acknowledge that after we have been proved to be slaves by freeman’s proof, then all the unutterable consequences of slavery follow, of course; just as when a man has been proved to be a murderer, the consequences of murder follow. But UNTIL, mark this, =UNTIL= a man has been proved to be a slave by freeman’s proof, he remains legally free. And a magistrate who takes jurisdiction of a proceeding by which a man may be deprived of liberty or property, without freeman’s proof, prejudges his victim, when he allows the first witness to be called, or the first paper to be read; and he might just as well do it, in a case of “life,” as in a case of “liberty and property.”
The next position of the commissioner which I shall notice relates to the right of Congress to make use of state courts to execute United States laws.
Now we have the express authority of the supreme court of the United States for saying that “Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself.”--_Martin_ vs. _Hunter’s Lessee_, 1 Wheaton, 330. “The whole judicial power of the United States should be, at all times, vested in some courts created under its authority.”--_Ib._ 331. “The jurisdiction over such cases, [cases arising under the constitution, laws, and treaties of the United States,] could not exist in the state courts previous to the adoption of the constitution, and it could not afterwards be directly conferred on them; for the constitution expressly requires the judicial power to be vested in courts ordained and established by the United States.”--_Ib._ 335. But the commissioner refers to a passage in Prigg’s case, in which it is said that “while a difference of opinion exists ... whether state magistrates are bound to act under it, [a law of Congress,] none is entertained by the court, that state magistrates may, if they choose, exercise the authority, unless prohibited by state legislation.”
Waiving all exceptions to this doctrine, the utmost that can be made of it is this: that state magistrates may execute a law of Congress, unless forbidden by a law of their state; but when so forbidden, they cannot; and Congress can neither compel them to do so, nor annul a prohibitory law of the state, by giving validity to the act of the magistrate, performed in violation of the state law. Now mark the _non sequitur_ of the commissioner’s logic. See how his premises belong to one subject, and his conclusion to another. Because a _Massachusetts_ magistrate may execute a law of Congress, unless the Massachusetts legislature forbid him, but if so forbidden he can no longer do it, therefore, when the Massachusetts legislature has so forbidden him, Congress may send the magistrates of Georgia, or of any other state, into Massachusetts, to do what our own state had forbidden our own magistrates to do. I say “_send the magistrates of Georgia here_;” because Congress may just as well, and even better for us, authorize the magistrates of any state in the Union to come here, set up courts, and pass sentences which shall convey our citizens into bondage, as to stay at home and make records, which, when brought here, shall have the same effect. This, then, is the law-logic of the commissioner: Because a Massachusetts magistrate may aid in reclaiming an alleged fugitive on Massachusetts ground, unless forbidden by his state, yet, if so forbidden, then the legislatures of fifteen slave states may send their magistrates, or the acts of their magistrates here, to do the same thing. The state might prevent its own magistrates from aiding in this nefarious work, but this would be of no avail, for any one, or all, of fifteen sets of slave state magistrates may come and do the forbidden act.
Pierpont Edwards once said of a clergyman, that if his text had a contagious disease, the sermon would not catch it; and a blind man, being asked to describe his conception of color, compared it to a clap of thunder. But all their ideas were coherent and homogeneous compared with those premises and conclusions of the commissioner, by which the State Rights’ doctrine is expounded to mean, the right of one _state_ to send its magistrates into another state, to do what the latter has _lawfully_ prohibited its own magistrates from doing. South Carolina never claimed so much as this.
Under the first head, where it had been urged by counsel, that a freeman might have no opportunity to prove his freedom in the state from which he was alleged to have fled, because the claimant was under no obligation to carry him to that state, but might send him to the Cuban or Brazilian market, the commissioner shuts his eyes to these very probable consequences, and refuses to consider them; but under the fifth head, where an argument in favor of the slaveholder could be derived from consequences, he not only argues elaborately from them, but bases his judgment upon them.
There are two remarks thrown out in the course of the commissioner’s opinion so shocking to every feeling of humanity, that any one, in commenting upon them, may well be excused for passing from the language of argument to that of emotion.
If there be any one right known to the common law more important and sacred than all others, it is the right of confronting and cross-examining the witnesses who are brought to testify against us. Without this right, there is no fraud that cannot be practised upon the most honest man, and no guilt that cannot be proved against the most innocent one. Doubtless this right of cross-examination is sometimes abused; but there are few spectacles more exciting or more gratifying than to see the demons of falsehood driven out, one after another, from a perjured villain, until the truth, at last, is wrenched from his heart, notwithstanding the double boltings and barrings with which he had locked it there. The fear of this cross-examination “casting its shadows before,” has prevented thousands and tens of thousands from swearing falsely. Next to honesty, this fear is the greatest protection to property, liberty, and life.
Now the testimony which doomed Sims to slavery, and which may doom any of us with our wives and children to slavery, when men grow, not more wicked, but only a little more bold in their wickedness than they are now, was wholly _ex parte_ testimony; taken, not merely behind the victim’s back, but a thousand miles behind his back; of which he had no knowledge, and, unless he were omniscient, like God, could have no knowledge. And when the counsel of Sims urged upon the commissioner the enormity of this outrage against all principle, what was his reply? It was this, and it makes a man’s blood run cold to read it: Sims’s absence from Georgia, “so that he could not be served with notice, if he was entitled to it, was in his own wrong, and he cannot now complain that he had no opportunity to cross-examine the witnesses.”
I appeal to all history to prove, that no judge who ever sat upon a bench where the common law was recognized and administered, however corrupt he may have been, ever advanced a more atrocious doctrine. Why, gentlemen, if a debtor absconds for the very purpose of defrauding his creditors, he must have notice before he can be proceeded against for the recovery of a debt. If he flees from the state, lurks and hides himself, he must have the best notice the court can contrive to give him. If the plaintiff recovers and takes out execution, he must file a bond conditioned to make restoration; and years afterwards, if the defendant shall come back and show cause; he shall be entitled to a review to annul the whole proceedings against him. Ay, when a criminal, a robber, a murderer, an incendiary, is brought to trial, even he must be “confronted with the witnesses against him, have compulsory process for obtaining witnesses in his favor, and the assistance of counsel in his defence.” And yet the commissioner _makes proof out of nothing_, that Sims escaped from slavery, and then, because of this nothing-made proof, he inculpates him with being absent “in his own wrong.”
The other point referred to arose from certain testimony, (if it can be called testimony,) that the mother of Sims begged the witness, “whether her son was in a free state or in a slave state, for God’s sake, to bring him back again.” “This,” says the commissioner, “certainly disarms the case of any unpleasant features”! Why, even the kine of the barn-yard, when the butcher cuts the throat of her young, will weep and low, and bellow, for days and days, and say, as well as in her inarticulate moanings she can say, “For God’s sake, let it be brought back again;” though the only consequence of its return would be to have its throat cut by the butcher again. And are we to expect that the brutalized, chattelized “cattle” of the south will have less of that natural yearning and longing of the soul, at the loss of their offspring, than the animals of the farmer’s yard? Can we suppose that God has not planted the instinct of a mother’s love too deep to be destroyed but by the destruction of the being herself in whom it was planted? No! debase the mother as you will, by ignorance, vice, superstition, lust, concubinage, incest, and this wealth of affection will still glow at the bottom of her heart, “rich as the oozy bottom of the deep in sunken wrack and sumless treasures.” And because this mother’s love had not been all extinguished, the commissioner says that his sending a human being into the abyss of bondage, on evidence that an intelligent barbarian would reject, “certainly disarms the case of any unpleasant features.” But I shall not expostulate with the commissioner. A man must have a heart before he can feel, as he must have eyes before he can see.
“O, who can paint a sunbeam to the blind, Or make him feel a shadow with his mind?”
Fellow-citizens, I might occupy your attention much longer upon this unprecedented opinion of the commissioner; but there are two or three other topics to which I wish to call your attention, and I therefore forbear. In saying what I have said, I disclaim all personal ill will or discourtesy towards that magistrate. Even should I appear not to have succeeded in suppressing my own feelings, I certainly cannot wound his more than he has wounded mine, and those I believe of nine tenths of all who have ever read his opinion;--not by a thousand fold as much as he has wounded the law, whose servant he is, or the fair fame of Massachusetts, of which he is a citizen; not so much as his decision will wound the hearts of an intelligent posterity, who shall look back upon it as a partisan and an ignoble act, not to be remembered without a sigh.
* * * * *
If the legal relations of slavery did not sustain the moral ones, as the root sustains the branches and nourishes the fruit, those moral relations would seem to demand all our attention. I know but comparatively little, and no man living at the north can know but comparatively little, of the various and ever-repeated wickednesses of this institution. It has been my lot, however, to live for about half the time, during the last four years, in the midst of a milder form of slavery. And besides this, I was once engaged for about six weeks in the trial of causes growing directly out of slavery; and that experience gave me some insight into its dreadful mysteries. For a moment, the wind blew the smoke and flame aside, and I looked into its hell. I saw, then, as I had never seen before, what a vital and inextinguishable interest every human being has in this subject;--not the slaves alone, but the free men; not voters only, but all who can be affected by votes; not men only, but especially women.
For this reason, I am glad to see so many ladies in this audience. It becomes them to be here. If any mortal should cultivate an abhorrence of slavery, the female sex should do it. Whatever any one may hold to be the social relation between free women and slave women, yet before God and Christ, and all the holy angels, they belong to the same sisterhood of the human race. They are your sisters. And what is the condition of these your sisters, in regard to everything that a virtuous and noble woman holds most sacred and dear?
Ladies, there are now in this land of pretended freedom and pretended gospel a million and a half of women who have no practical knowledge of what a woman’s higher life should be, or what a woman’s most precious rights are. Since the Declaration of Independence, the number of slaves in this country has increased from less than five hundred thousand to more than three millions; and before the close of this century, their descendants will increase to more than thrice three millions. And yet, neither as to the living nor as to the dead, has there ever been a lawful marriage among them all. There has never been a man slave who could say, “This is my wife, heart of my heart, and life of my life, and no mortal power shall pluck her from my side.” There has never been a woman slave who could say, “This is my lawful, wedded husband, whom I promise to love and cherish, and to whom I vow inviolable constancy.” “For this cause,” says Christ, “shall a man leave father and mother, and shall cleave to his wife, and they twain shall be one flesh.” But the “twain” of slaves are never one. And even when any sham ceremony is observed, to distinguish this holy relation of husband and wife from the cohabitations of beasts, and he who officiates comes to those other words of Christ, “What, therefore, God has joined together, let not man put asunder,” he stops; for he knows, and they all know, that a few dollars, at any time, will bring bereavement upon both,--a double bereavement, he a widower and she a widow, both still surviving. Their life, at best, is but a life of concubinage;--not even that concubinage, which, though not founded upon a lawful contract, has still something like conjugal fidelity in it, and therefore a semblance of virtue; but a various and vagrant concubinage, traversing the circle of overseer, master, master’s guests, and master’s sons. The fate of the children born to the slave mother you all know. Those objects upon which all maternal affections meet and glow as in a focus, are torn from her bosom, like lambs from the flock when the shambles are empty.
And as to those females who are young, sprightly, and handsome:--
Charge me not with indelicacy in touching upon this theme. _Honi soit qui mal y pense._ I speak not to fastidious ears, but to the pure in heart, to whom all things are pure. I speak of eternal verities, before whose massive force the heart trembles and bows itself, as reeds before the tempest. It is the grossest and most shameless of all indelicacies to patronize and multiply vice, through pusillanimity in exposing it,--
As to those females, I say, who are young, sprightly, and handsome, whom God has damned with beauty of form and beauty of face, because they only attract the gloating eye of passion, who can describe the loathsomeness of their life? They are ripened for the New Orleans, or for some other market, whence southern harems are supplied; as, under the Mahometan religion, white Caucasian beauties are sent to the slave marts of the darker-skinned Turk.
In that company of seventy-six persons who attempted, in 1848, to escape from the District of Columbia in the schooner Pearl, and whose officers I assisted in defending, there were several young and healthy girls who had those peculiar attractions of form, of feature, and of complexion, which southern connoisseurs in sensualism so highly prize. Elizabeth Russell was one of them. She fell immediately into the slave-traders’ fangs, and was doomed for the New Orleans market. The hearts of those who saw her and foresaw her fate were touched with pity. They offered eighteen hundred dollars to redeem her, and some there were who offered to give, who would not have had much left after the gift. But the fiend of a slave trader was inexorable. He knew how he could transmute her charms into gold through the fires of sin. He demanded twenty-one hundred dollars, (though for menial services she would not have been worth more than four or five,) and would take nothing less. She was despatched to New Orleans, but when about half way there, God had mercy upon her and smote her with death. Perhaps, foreseeing her fate, she practised what, under such circumstances, we might call the virtue of suicide. There were two girls named Edmundson in the same company. When about to be sent to the same market, an older sister went to the shambles to plead with the wretch who owned them, for the love of God, to spare his victims. He bantered her, telling her what fine dresses and fine furniture they would have. “Yes,” said she, “that may do well in this life, but what will become of them in the next?” They, too, were sent to New Orleans, but they were afterwards redeemed at an enormous ransom, and brought back. There was one girl, who, after her recapture in the Pearl, was sold six times in seven weeks, in Maryland and Virginia, for her beauty’s sake. But she proved heroically and sublimely intractable. Like Rebecca, the Jewess, she would have flung herself from the loftiest battlement, rather than yield her person to a villain. Notwithstanding her masters’ pretence that they had bought her with their money, and owned her soul, yet she had wealth, which, though all the earth were “one entire and perfect chrysolite,” it could not buy. It was not difficult, therefore, to purchase her, and she was redeemed and came to New York; and I have been informed in the most authentic manner from the lady of the very respectable family of which she became an inmate, that, on an examination of her person, after the healing-time of the journey had passed, her body was found scarred and waled with whip marks, which the villains inflicted upon her because she would not come to their bed.
Now, suppose a sister or daughter of yours, of this heroic soul and spotless purity, should find herself on the way to New Orleans;--suppose, by almost superhuman power and adroitness, she should escape, and should thread her solitary and darksome path, for hundreds of miles, towards the north star; should lie down in caverns, with poisonous reptiles by day, and pursue her lonely journey by night, finding the beasts of the forests to be less terrible than man; should swim rivers, and keep off famine by roots and insects, until at last, thanks be to God, she sets her mangled and bleeding feet upon the soil of freedom. Perhaps some echo of the fame of the Pilgrim mothers has reached her ears. She has heard of Boston and its noble women of old, and she hies hither as to a city of refuge,--as to a sanctuary where virtue has an altar, and where she can lay down her hunted and weary body, and be at rest. Fallacious hope! The lecher pursues his prey, and he is here. He goes to some Glossin lawyer who sues out a warrant; and to some Jack Ketch who serves it. The victim is seized at midnight, under some lying charge, and she is carried before a commissioner, whose conduct, were he a _quasi_ judge, as he pretends to be, would be enough to make every hair of the judicial ermine forever detestable. Here a process is gone through which she does not understand, and some papers are read of which she never heard, and then a judgment is pronounced that her “labor” is “due” to her pursuer, (and such labor!) that she “owes service” to him, (and such service!) and then the commissioner delivers her into his arms, and pockets a fee which common pimps would be ashamed to work for.
And, my friends, the keenest pang in the grief of all this is, that there is no fiction or romance about it. A commissioner who could bring himself down to send a _man_ to a Georgia cotton-field under this law, the first time trying, could send a virtuous and spotless woman into enforced harlotry the second time; and the prince of darkness only knows what he could not set him to do afterwards. The clergymen who could defend the enslavers of Sims because he “owed” the “service” of one sex, could defend the enslavers of a woman because she “owed” the “service” of the other sex;--the clergymen of the rich parishes I mean;--for it happens, with the constancy of a law of nature, that it is only the clergymen of the rich parishes who do this. Do they not know how to serve and reverence their Lord and Master,--that is, their Landlord and Paymaster!
But, fellow-citizens, as our feelings are stimulated to the keenest sensibility, in looking at the infinite of wrong which slavery commits; as we see the millions and millions of human beings dimly emerging into view, and crowding down the vista of futurity to blast our eyes with the vision of their woe, a potent voice rings in our ears, exclaiming, “_Conquer your prejudices_,” “CONQUER YOUR PREJUDICES.” And this execrable counsel is uttered in reference to the infinite crime and disgrace of sending into slavery, without a trial, those who are free under our laws,--the men to stripes and death, and the women to the body’s shame and the soul’s perdition. Fouler, baser, more ungodly counsel was never uttered, since it was said to our first parents in the garden of Eden, “On the day thou eatest thereof thou shalt not surely die.”
And what is it that this long-honored eulogist of liberty, but now its great apostate, blasphemes with the name of “_prejudice_”? If there be one sentiment more deeply rooted in the public heart of Massachusetts than any other, more intertwined and grown together with all the fibres of its being, it is the sentiment of liberty. We have drunk it in with our mothers’ milk; we have imbibed it from all the lessons of the school-room and the teachings of the sanctuary; we have inspired it with the atmosphere we breathe, and our organs have been attuned to it from our birth, by the anthems of the mountain’s wind and the ocean’s roar. It was from the love of liberty that our earlier fathers plucked themselves up by the roots from that natal soil into which they had been fastening for centuries. For this they wandered abroad upon the ocean, deeming its ingulfing surges to be more tolerable than a tyrant’s power. For this they transplanted themselves to this land, at that time more distant and more formidable to them than any part of the habitable globe could now be to us. For this they performed the double task of enduring all privations and dangers, and at the same time of laying the foundations of all our free and glorious institutions; and as the sires were stricken down by toil and death, the sons took up the work and bore it on, generation after generation.
For this noble sentiment of liberty our later fathers encountered the perils and deaths of a seven years’ war, and amid poverty and destitution, amid hunger and cold and nakedness, without any of the protections and defences of battle which the wealth of their foe could command, they bared their noble breasts to the shock of the mailed legions of the British crown. And when the struggle was ended and the triumph won, they achieved labors of peace not less magnanimous and wonderful than their labors of war.
They were the pattern men of the world;--not aggressive, not submissive; not hostile, not servile; doing right, demanding right; they were the men who would never wield the oppressor’s rod, and would go mad at the touch of his heel.
Now, there is not one of all those glorious deeds, from the embarkation at Delfthaven to the signing of the peace of 1783, or the inauguration of the federal government in 1789, which was not begotten by the love of liberty, or would have been performed without its creative energy. And yet, the arch-apostate, standing in the city of Boston, the home of old Samuel Adams and John Hancock, within a stone’s throw of the spot where Benjamin Franklin was born, in sight of Bunker Hill, and with Lexington and Concord, as it were, just hiding themselves behind the hills for shame, calls all this a “prejudice,” and commands us to cast it from us as an unclean thing. Was it not enough to make the stones in the streets, and every block in that eternal shaft which marks the spot where Warren fell, cry out “with most miraculous organ” to rebuke him?
We have another, and it is a kindred “prejudice.” We have a “prejudice” of sixty years’ standing in favor of the principle of the ordinance of 1787. That ordinance has been cherished in our memories, it has been taught to our children, and we have displayed it before the world both as the pledge and the promise of our devotion to liberty. Five states, now numbering five millions of men, were the battalions whom that ordinance wheeled from the ranks of Belial to the Lord’s side. Hundreds of times have the Whig party and the Democratic party resolved that the principle of that ordinance should be maintained inviolate. Mr. Webster claimed the application of it to the new territories, as his thunder, and swaggered as he rattled it. Now he calls the great achievement of Thomas Jefferson and Nathan Dane a “_prejudice_,” and dishonors their graves by his scoffs. He abandons the vast regions of Utah and New Mexico to the slaveholder; he gives more than fifty thousand square miles of free territory to Texas; he gives ten millions of dollars in money, (more than, with all our devotion and self-sacrifice, we have been able to appropriate to public education in Massachusetts for the last ten years;) and worse than this, he gives permission that she may carve out of her territory a slave state _additional_ to what had been unconstitutionally contracted for when she came into the Union.
And for what does he flout us, by stigmatizing all these sacred convictions and sentiments and instincts as “_prejudices_”? Only to feed the famine of his ambition. He began to see, what every body else has so long seen, that his vices were bringing upon him the retribution of premature old age and decrepitude; and that, unless he could enter the White House the next term, he must wait, at least until the great Julian period should bring the world round again. He parleyed with southern tempters, and fell.
Nor did he outrage our feelings only. He sacrificed our pecuniary interests, our very means of subsistence. Massachusetts would be prospering under an improved system of protection for our domestic industry to-day, but for Mr. Webster’s apostasy, which stripped us of all our power and of all our unity, and inflamed the spirit of southern aggrandizement to demand every thing and yield nothing. Could the issue be now formed, and the case tried, whether Daniel Webster’s course in 1850 did not deprive the working-men of the country of a tariff for the protection of their labor, not an intelligent and impartial jury could be found that would not bring him in guilty. This result every unbiased man at Washington saw, last summer; while he was cajoling the men of the north with the delusion that, if they would surrender liberty, they should have their reward in a tariff. I speak of this with confidence, because there are hundreds of my constituents and acquaintances who will bear me witness that, in personal interviews, and by correspondence, they were warned, that if they followed Mr. Webster in his recreancy to principles, he would leave them without relief in the matter of property.
Fellow-citizens, I will trespass upon your attention but for a moment longer. I wish to advance one idea for the consideration of all sober, moral, and religious men; and when this idea is duly considered, I trust to its working a revolution in public sentiment. In selecting men to be our political leaders, we have sometimes committed the gravest moral error. We have assumed the falsity of a distinction between a man’s public and his private life. We have supposed that the same individual might be a bad man and a good citizen; might be a patriot and an inebriate, a faithful officer and a debauchee, at the same time; might serve his country during “office hours,” and the powers of darkness the rest of the twenty-four. But I say, as of old, no man can serve God and mammon.
We have been too prone to judge of men by their professions and by their connections. We seem to have forgotten that the tree is to be known by its fruit, and a man by his life. If we are to take the Pharisee’s rule, and determine a man’s piety by his creed, and by the number and length of his prayers, then piety will be the cheapest thing in the market, and as worthless as it is cheap.
In choosing teachers to be the guides and exemplars of our children, we demand high moral worth; and we would as soon thrust our youth into the centre of pestilence, as amid the contagion of vicious and profligate men.
In selecting our religious guides, we feel almost justified in being captiously and morbidly critical; we hardly admit that we can be strict to a fault; and the man who fails to carry personal purity and exemplariness into the pastoral life, is driven from it with indignation and contempt.
I admit too, rejoicingly, that, in Massachusetts, this preventive and praiseworthy discipline has been more extensively applied to political men than in any other state in the Union. Our highest state offices have been filled for years, saving very rare exceptions, with men of distinguished probity and a spotless life. And why, in this department, should we _ever_ grant dispensations and absolutions; or, like the old popes, sell indulgences to sin?
Now, let this doctrine be applied; for I hold it to be no unwarrantable invasion of private character to apply these principles to public men. When public men openly and notoriously practise vice, they make the vice public, and bring it within public jurisdiction. If it is public for example, it is public for criticism; and, under such circumstances, the moral and religious guides of the community are as solemnly bound “truly to find, and due presentment make,” of these offences, as the grand jury is in the case of crimes against the laws of the land. I say, therefore, let us apply this doctrine.
How long have all good citizens in Massachusetts labored in the glorious cause of temperance! They have devoted time, expended talent, lavished money, incurred obloquy; but, as their reward, they have plucked the guilty from perdition; rescued the young, just losing their balance over the precipice of ruin; saved the widow and the fatherless from unutterable woe, and driven demons of discord from domestic Edens. Now why, after all our toils and sacrifices to uphold and carry forward the cause of temperance, and to make its name as honorable as it is blessed; why should we demolish all our work by elevating a man to a high political station, or by upholding him when in it, who, in the face of the nation and of the world, will become so drunken that he cannot articulate his mother tongue? Is this an example you desire to set before the ingenuous and aspiring youth of the land; ay, before your own children?
We have had men in the presidential chair not without faults and blemishes of character; but hitherto we may proudly say, that we never have had one there who drowned his reason in his cups. God grant that we never may. Think of this magnificent ship of state freighted with twenty-three millions of souls, and laden to the scuppers with the wealth of the world’s hopes, with a pilot at the helm--_drunk_!
We are an industrious and a frugal people. The aptitude is born with us. A true Massachusetts boy seems to take to ingenious labor and to labor-saving contrivances from his birth,--like a duck almost impatient to be hatched, that it may get into the water. We prize and honor the home-bred virtues of diligence and thrift; for they bestow upon us all our comforts, the means of educating our children, and leave us a magnificent surplus for godlike charities to be scattered over the world.
Dr. Franklin has stamped a family likeness upon us all. His economical wisdom is domesticated among us. Take a sound and pure specimen of a Massachusetts farmer or mechanic, and analyze him, and you will find that, of his whole composition, from six to ten ounces in the pound is made up of Dr. Franklin. Now, why should we root out this luxuriant, fruit-bearing virtue? Why welcome and court and feed the prodigalities and sensualities of the old world, to corrupt the pristine virtues of the new? Can he be a republican after the severe simplicity and grandeur of the old Roman type; can he be an exemplary citizen, who must have his thirty, forty, or even fifty thousand dollars a year, to squander upon what I must not call, “to ears polite,” his vices and passions, but, more genteelly, “his tastes and feelings,” while millions of honest laborers thank God if by incessant toil they can earn their daily bread for their families, and the bread of knowledge for their children? Can they be good citizens, or, at least, are they not grievously deluded, who will give such purses to such a man for being the advocate and agent of their special interests, while there are hundreds of suffering men and women, and more suffering children, at their own doors? Do you want your children to grow up inflamed by such examples of excess and wantonness? I know that all this is defended on the ground that something must be done for a great man’s family. _Ay, that family!_ The progeny and costliness of the vices, what Californias shall be able to support? I know, too, that it is also said we must have great talents in the public councils, at whatever price. Well, if this be your philosophy, don’t do the work by halves, but import Lucifer at once!
Now, fellow-citizens, you know that all the men who are guilty of these great derelictions from civil and social duty are the men who uphold the Fugitive Slave law.
I might touch upon more holy relations in life; upon virtues without which there is no home and no domestic sanctuary; without which there may be children, but the sacred institution of the family is gone. But I forbear. I only desire to awaken your attention to the great duty of extending the domain of conscience over politics; of holding public men answerable for those vices which it is a great misnomer to call private when they are committed in the face of the world. “The pulpit is false to its trust” if it does not follow and rebuke them, under whatever robes of official dignity they may hold their revels.
Three great stages of development belong to the world. First, there was the period of physical development, when the tallest man was crowned king, when the strongest muscles enacted the laws, when brute force was “His Royal Majesty,” and claimed and received the homage of mankind. That age has passed; and how contemptible does all its greatness now appear! Then came the age when the mind towered above the body, when a nation’s power no longer consisted in the millions of its men, but in the treasuries of its knowledge; when the intellect took up the vastest concentrations of animal strength, which seemed omnipotent before, lifted them off their fulcrum, and they became like a feather, in the breath of its power. That age is the present. The moral age is yet to be ushered in. In this age, the intellectual forces shall still retain all their dominion and supremacy over the physical world, but the moral shall preside over the intellectual, and move them as God moves the stars, bringing them out of chaos, and wheeling them in circuits of unimaginable grandeur, and for purposes of beneficence yet inconceivable. In that day, the lawgivers of the land shall be no longer “compromisers” between duty and mammon, and the judges shall judge in righteousness. In that day, the merchant, for the lucre of trade, shall not pay tribute in human beings, and send his flesh-tax across the free waters. In that day, the gospel of human brotherhood, of doing as we would be done by, and of loving our neighbors as ourselves, shall no longer be doled out to us by priests of the broad phylactery sort, in homœopathic doses, reduced to the five hundredth dilution. But in that glorious day, the men who sit in the Areopagus of the nation, clothed with the ermine of the law, shall be, as the heathen of old figured the emblem of Justice, blind in the outward eye; and all they know of color shall be to give no color to the law. In that day the successors of St. Paul shall preach what he preached, when standing “in the midst of Mars Hill,”--a God of equity, of righteousness, of justice, of benevolence; the God who made “of one blood all nations of men,” who, alas! to so many in our day is “the UNKNOWN GOD.”
In that day, when a whole people are aroused to ponder, with unwonted intensity, upon the great principles for which Sidney and Vane bled; for which Hampden smote the tyrant of his day; for which the heroes of the revolution pledged fortune, life, and sacred honor; no voice shall strive to seduce them from their sacred work by its Belial cry, “CONQUER YOUR PREJUDICES!”
Fellow-citizens, if you wish to coöperate in bringing on this glorious era, your first step is to vote for that noble man who ransomed his own slaves,--JOHN G. PALFREY.
FOOTNOTES:
[21] It is substantially conceded by the supreme court of Massachusetts, in delivering their opinion on the application of Sims for a writ of _habeas corpus_, that the Fugitive Slave law stands upon precedent alone, and is disowned by principle. Chief Justice Shaw says,--
“At the same time it may be proper to say, that if this argument, drawn from the constitution of the United States, were now first applied to the law of 1793, deriving no sanction from contemporaneous construction, judicial precedent, and the acquiescence of the general and state governments, the argument from the limitation of judicial power would be entitled to very grave consideration.”
I submit that the precedents, on this subject, both legislative and judicial, are substantially divested of all their force, by the fewness of the cases that have ever arisen under the law, by the general obsoleteness into which it fell, and, more than all, by that uniform indifference and neglect, and I may add inhumanity, with which colored people and the rights of colored people, have been almost universally regarded in the different states of the Union.
[22] Mr. George T. Curtis.
[23] I object to Mr. Curtis’s calling the county commissioners “_the court_ of county commissioners.” They are nowhere so called in the act creating them, or in the act defining their duties. On the contrary, they are expressly contradistinguished from the “court of common pleas,” which is a court. This may have been an inadvertence, but it shows how he mistook the nature of their powers.
SPEECH
DELIVERED, ON TAKING THE CHAIR, AS PRESIDENT OF THE GREAT MASS CONVENTION, CALLED, WITHOUT DISTINCTION OF PARTY, IN OPPOSITION TO THE FUGITIVE SLAVE LAW, AND HELD AT THE TREMONT TEMPLE IN BOSTON, APRIL 8, 1851.[24]
GENTLEMEN OF THE CONVENTION;
I thank you cordially for the honor of being called to this place; though I could have wished that your choice had fallen upon some one of the many more meritorious men whom I see all around me.
Gentlemen, I have come here to-day to add my feeble voice to the thunder tones of execration against the Fugitive Slave law, with which every free state in this Union, and every free community upon the earth, are now echoing and reëchoing.
I do not propose to occupy your attention long. Where so many things are to be said, and so many persons, far better qualified than I am, are present to say them, I shall consult at once your advantage and my duty, by being brief.
We have come together with especial reference to the Fugitive Slave law; but that execrable statute connects itself so directly with almost every other prominent measure of the government, and with the leading acts of our public men, during the past year, that it opens the whole subject of human liberty, and our duty, as freemen, in regard to human rights. Especially does it behoove us to inquire, by what means, by whose instrumentality, the country has been instigated to this treason against the rights of men, and when we may expect their machinations will be brought to an end.
Some of our official dignitaries are giving us law lectures on the subject of high treason against the government. I hope they will not object, if we reciprocate the favor, by giving them a lecture on the higher treason against God and humanity, of which they are guilty.
Gentlemen, it is with unspeakable humiliation and regret that I look back and see where Massachusetts stood twelve or thirteen months ago, and where so many of her citizens stand now. Up to that ever-accursed day, the 7th of March, 1850, there was not a Massachusetts man, in the councils of the state or nation;--nay, so far as I know, there was not a single Massachusetts man any where, of any standing or respectability, who did not assert and proclaim his hostility to the extension of slavery; his purpose to maintain at all times the principle of the ordinance of 1787; and his “resolute and fixed determination,” (to use Mr. Webster’s language,) “to make no further concessions to slavery and the slave power.” The public men of the state, the press of the state, the legislature of the state, avowed these sentiments; and the political conventions of the state rang with these declarations from side to side.
But on that ever-memorable day a senator of the United States, from Massachusetts, saw fit to trample under foot every thing that he had ever said in behalf of human freedom and against human bondage. He saw fit to curl his lip and to intonate his voice in scorn of the principle of the ordinance of 1787, and to dishonor the memory of Nathan Dane, whom, a few years before, on the same spot, he had eulogized. He saw fit to contemn what he knew to be the honest sentiments of Massachusetts. He went far, far out of his way, to fortify and extend the institution of slavery. He offered to add new states to its power, and to take two hundred millions of dollars from the treasury of the United States, to be expended for its extra-constitutional security and defence.
I shall not dwell upon the perfidious nature of that deed, nor upon the obvious motive that prompted it. I will rather advert to the measures which have since been taken to corrupt the public sentiment of Massachusetts, and of the whole north, and to bring over the people, some to a palliation and others to a full indorsement of it.
As soon as the stunning effect of that treacherous blow upon all the moral and religious sensibilities of the state, and upon its traditional and inwrought love of liberty, had begun to subside, a systematic effort was commenced to debauch the patriotism and humanity of the people, by an appeal to their cupidity. Our manufacturing and commercial interests were suffering. A majority of the slave states were the antagonists of these interests. Political ambition and mercantile cupidity associated these two facts together, and the flagitious idea was engendered that by surrendering our liberty we might have a tariff. The poison of this idea was first openly and directly infused into the public mind by Mr. Webster, in his speech at the Revere House, April 29th, 1850, when he said, “Neither you nor I shall see the legislation of the country proceed in the old harmonious way until the discussions in Congress and out of Congress upon the subject to which you have alluded, [slavery,] shall be in some way suppressed. Take this truth home with you, and take it as truth. Until something can be done to allay the feeling now separating different men and different sections, there can be NO USEFUL AND SATISFACTORY legislation in the two houses of Congress.”
Of this declaration there can be but one interpretation. It was perfectly understood by those to whom it was addressed. It says, without enigma or riddle, surrender the territories to the incursions of the slave states, pacify the slave power, give up blood-bought rights for this life, and Savior-bought hopes for another, and you can have your pay in a cent a yard on calico, and a cent a pound on iron. And, as a means of accomplishing this object, it says the discussion of the slavery question must be “_suppressed_.”
From that time until the close of the last session of Congress, in every form in which so intrinsically wicked an idea could be set forth without shocking not only all principle, but all decency, this idea was inculcated upon the public mind of the north, especially upon the cities. In unofficial speeches and letters, Mr. Webster urged this seduction more and more pointedly and earnestly, until, on the 17th of July, 1850, in the last speech which he ever made in Congress, he appealed to the senators of the north, and to the people of the north, in language as explicit as he could make it, to adopt the compromise measures, to take even the abhorred Fugitive Slave bill itself, for the sake of the money to be made out of them. Throughout that speech he held out the apple of temptation before their eyes, he jingled the thirty pieces of silver in their ears, to seduce them into the surrender of liberty for pelf.
I appeal to the common knowledge of the citizens of Boston, if, during the last summer, it was not an expression as familiar to their lips as the salutations of the day, that they had Mr. Webster’s authority for saying, that if they would surrender the great questions involved in the compromise, they could have a tariff.
Now, on this state of facts, I have two observations to make,--
1st. That a proposition to barter or to jeopard the liberty of our fellow-beings for any amount of money, however great, was intrinsically inhuman and wicked.
2d. That every new concession we made to the south on the subject of slavery, for the sake of getting protection for our manufactures and other industrial interests, only impaired and postponed our chance of getting that protection.
For the correctness of the first of these propositions, I appeal to every man who has a conscience, or even any elementary ideas of right or wrong, which are not smothered by his interests or his passions. And for the second, I appeal to the case of Texas which defeated the tariff of ’42, and to the fact that, though we did consent to all the detestable provisions of the compromise,--slave territories, slave states, ten millions of dollars for Texas, Fugitive Slave bill, and all,--yet we get no tariff, and have now no rational prospect of one.
That the surrender of all our glorious patrimony of free principles should help to make some northern man President, I can readily understand. That is intelligible. Before the 7th of March speech, it was announced, from high southern sources, that they would take the northern man for the next presidential term who would do the most for slavery; and since that time, the same declaration has been reiterated. [See, among others, Mr. Toombs’s speech before the Georgia Union meeting.] But I state it as a fact within my own personal knowledge, that there was not an intelligent man in Congress who was not implicated, on the one side, in the manufacture of goods, or, on the other, in the manufacture of presidents, who did not then foresee and predict that every forward step we took towards the compromise was a step backwards from protection. And we now have this stubborn fact to show for the soundness of that opinion,--the event has ratified it. They have not obtained the tariff they were promised, though they have given for it the price of blood.
Now I wish to ask the manufacturers and commercial men of the north, whether, if they had seen,--as it was seen by every unbiased man at the seat of government,--that upholding the compromise would put down protection, they would have consented to the compromise? And a further question which I wish to put to all Massachusetts and all New England is, if, during the last year, we had had the tariff of 1842 in full operation, and if the current of prosperity had filled the deepest channels that enterprise and industry had cut for it, whether then Massachusetts citizens would have unsaid and retracted all the noble things they have been saying in favor of liberty for the last ten years; whether then the Massachusetts press, or so large a portion of it, would be found openly advocating doctrines which they have always heretofore professed to hold in utter detestation and abhorrence? No man will pretend it. If we had had the tariff of ’42 last year, the compromise measures never could have passed, and it would have been impossible for any presidential aspirant, or all of them together, to have subdued the northern mind to their acceptance.
The commercial and manufacturing interests of the north, then, have been deceived, grossly deceived and imposed upon. When their real interests were all on the side of freedom, they have been made to believe that it would promote those interests to unsay all they had ever said, and undo all they had ever done adverse to slavery. Their chance for a tariff lay in standing to their principles like men, and not in abandoning them like cowards. President-making has been the agency, and Cotton has been the instrument, of this deception. It has been said that the Press is the fourth estate in the realm; but I say Cotton is the fourth estate, for Cotton subdues the Press. The eyes and ears and nose and mouth of a portion of our people have been so filled with cotton, that they have come to consider cotton not only as their daily bread, but their bread of life.
Gentlemen, whatever convictions or doubts there may be on the subject of Animal Magnetism, I am a firm believer in Cotton Magnetism. The southern planter seems to possess some wizard art, unknown to the demonology of former times, by which he impregnates his bales of cotton with a spirit of inhumanity, with a contempt for all the dearest, tenderest, holiest ties that bind man to man and heart to heart; he fills them with this spirit as an electrician fills a Leyden jar, and then he sends them here; and if the man who comes within the circle of their influence is not himself filled with the strong, counteracting, disinfecting magnetism of duty and truth, of love to God and love to man, he is overcome and subdued by the infernal spell; he is brought into “communication” with the southern sorcerer, and into subjection to his will; and then he seems bereft of reason and conscience, he belies his Pilgrim parentage, talks gibberish about the dissolution of the Union, kneels, lies down, eats dirt, and says to his southern master, as Balaam’s beast said to him, “_Am I not thine ass upon which thou hast ridden ever since I was thine?_”
Still worse is it, when this cotton, so diabolically impregnated, gets beneath the rich velvet seats and embossed cushions of the pulpit;--unless, indeed, a double measure of the spirit of the Lord shall descend upon the preacher and exorcise both him and it, of the evil spirit it contains. When the soul of the clergyman is struck with this cotton magnetism, he grows delirious over his Bible, ignores the new dispensation, seeks out all the pro-slavery parts of the old, discards Jesus Christ as his example, and the precepts of Jesus Christ as the law of his ministrations, and proves himself a pagan, discoursing paganism in a Christian pulpit.
God grant that this kind of cotton may never stuff the cushions of our judges! I fear we are not wholly out of danger of so unspeakable a calamity. Give us the old English woolsack for them, within whose magic presence the chains of the slave drop from his limbs, and he is gloriously transfigured into a man.
Compare the newspapers of our cities now with what they were only one short twelvemonth ago, and see what demoralization cotton can work when it gets into editorial chairs.
As for those slave-catching commissioners who assume to exercise the functions of judges, to abolish human liberty, and to find property in the bodies and souls of men, but are no more a judge than an image “made after supper of a cheese-paring” is a man,--as for them, I say, they seem to have this virus the natural way; and if all moral diagnosis does not fail, it would be found, on an anatomical dissection of their hearts, that their right and left auricle and their right and left ventricle were only four cotton bolls.
But I believe that the reign of Cotton is to be short-lived. Improvements in the arts give confident promise that some new textile substance will soon be discovered which will supersede this slave-made and slave-making material. Even should this hope fail, every body sees what an unnatural attitude of power and strength the cotton-producing states now occupy. Extending over only a small area of territory, which you can cover on the map with your hand, they raise a staple which clothes, more or less, a great part of the world; while there are Brazil, Egypt, India, and regions of unknown vastness in Africa, to all of which, or nearly all of which, the plant is indigenous. Either then by the progress of the arts, or by an extension of cultivation, the majesty of Cotton will soon be dethroned; and then, _then_, how will these men appear, historically, who are now willing to trample upon human rights, and to send men, women, and children into all the horrors of southern bondage for the temporary profits which cotton can bestow?
I rejoice that this reference to the demoralizing power of interest gives me an opportunity to bestow well-deserved honor and praise upon a class of men who have nobly withstood its temptations. Not every man engaged in manufactures or in commerce has yielded to the seductions of this tempter. There are many noble exceptions. I have in my mind one of my own constituents largely interested in manufactures, who told me last summer that half his spindles were lying idle, and property that should have yielded income was incurring cost; “but,” said he, “do you see them _all_ stop, and the mills decay and go down stream, before you vote for that compromise.” Another of my constituents told me he was largely interested in three ships, then at sea; but declared he would see them all sink to its bottom before he would disgrace the country by passing the Fugitive Slave bill. These are but specimens of that noble spirit which was expressed with such Spartan terseness and vigor by Bowen & McNamee, of New York, when the foul panders to southern slavery threatened them with a loss of custom. Said they, “Our goods, and not our principles, are in the market.”
O, how these declarations contrast with what a manufacturer in a neighboring county is reported to have said,--that if he could work his mills any cheaper with slave labor than with free, he would employ slaves! And what, also, as I am credibly informed, another has said,--“The south want slaves to raise cotton to sell; we want slaves to raise cotton to manufacture; therefore, we must unite with the south to uphold slavery.” Now, I believe these things to have been _said_; but it is of no consequence whether they were said or not; we know they have been _acted_. Every man who upholds this Fugitive Slave law _acts_ them, whatever his language may be.
The compromise was forced through Congress partly by government interference, and partly by the delusive hope of a tariff. An appeal is now made, in behalf of the Fugitive Slave law, to the same mercenary motives. It is said, if opposition be made to this law, however legal or constitutional such opposition may be, we shall lose southern custom. Base and infamous appeal! Such men are made of the stuff of the tories of the revolution. Even if this appeal were true, it would be one that no honorable man could hear without indignation. But it is not true. The south must have their goods from somewhere, and our industrious artisans will make them, whoever the go-betweens may be. Will the south go bare-headed and bare-footed and unkilted, because they cannot have a law to catch freemen and slaves promiscuously? But it is said the south will abandon their slothful habits, become industrious, and manufacture for themselves. I wish they would. It would be most fortunate for us. They would then have the means of buying more from the north, and paying us better for what they do buy. Instead of spending only the money which their slaves earn, they would then have money to spend earned by the whites, and would become better customers for those ever new forms of commodities which our industry and inventive skill, while we keep our schoolhouses in operation, will always be able to supply.
Now, fellow-citizens, I have gone into these considerations for the purpose of ascertaining and of measuring the extent and the efficacy of the motives brought by our opponents to bear against us. You see they are mercenary, almost exclusively so. As for that bugbear of a dissolution of the Union, I say, without fear of contradiction, that no practical man has ever believed in it for a day. United States stocks at a hundred and sixteen, on the eve of a dissolution of the Union! The whole South Carolina, and Mississippi, and Texas delegations in Congress contending for every local advantage, for the establishment of new United States courts, for the increase of salaries, for appointments at home and abroad, as though the Union had been just insured for a thousand years! Show me one intelligent man in the whole country who has sold his stocks or his farm, or changed his residence, or altered his course of life in any respect, through fear that the Union was about to be dissolved. I think some persons may have left South Carolina, to get rid of the clamor about dissolving it. Why, what would the English national debt be worth under any well-founded apprehension that the British monarchy was crumbling to pieces? There would not be a pound of government securities that could not be bought for a penny. Confidence in the stability of our Union has not only pervaded this country, but other countries. The great bankers abroad who deal in our stocks have never changed their terms one mill in a million of dollars, through any such idle fear. They are the men whose barometers presage political storms. With such facts before us, to say that the Union has been in danger is as absurd as to say that a whirlwind is raging when the leaf of the aspen is pendulous, and cannot be seen to move. If the south wishes to dissolve the Union, let them do it, and at the end of thirty years there will be no slave in all their borders. The slaves will have made a new Jamaica or a new St. Domingo of it, as the masters shall behave themselves. No, this is nothing but a clumsy trick of the politicians; and if any one of them could be nominated for the presidency, we should hear nothing more from him about any deluge which threatens to submerge the Union. They profess peculiar love for the Union. Their clamorous notes bring to mind what Dr. Franklin remarked of self-righteous people. He said they always reminded him of scarcity of provisions;--those who had enough said nothing about it; it was the destitute who made all the clamor.
I say, then, the only remaining motive with which our adversaries can work is the loss of southern trade. This interests but few of our people. The farmers are not interested in it. The mechanics and artisans are not. The operatives in our mills are not. All our substantial, industrious classes are above this temptation, and would spurn it if they were not above it. The Fugitive Slave law champions, then, can make no more converts among them. Let us, then, continue to oppose this law in all constitutional modes. Let us explain its religious and moral bearings to the Christian. Let us tell the patriot of the disgrace it brings upon our country. Let us show to the working-man that those who are ready to make slaves of his fellow-beings for lucre will be equally ready to make a slave of him whenever interest shall supply the temptation.
Fellow-citizens, it has been asked why we are assembled here to-day, and not in the Hall consecrated to liberty. It is because the doors of that hall have been closed to Liberty knocking for admission. But there is a melancholy propriety in this. When the court house is in chains, Faneuil Hall may well be dumb. Those chains which girt the courts of justice are but typical of the chains which tyrannous men are striving to put upon our lips. This is not the first temple that has been unrighteously invaded and taken possession of by money changers and those who sold doves,--doves! _doves_!! No, not doves,--but men, women, and children. But I trust the time is not far distant when a better spirit shall enter their doors, and shall scourge out their invaders with cords, smaller or larger, as the exigencies of the case may require.
FOOTNOTES:
[24] This meeting was held pending the trial, before Mr. Commissioner Curtis, of Thomas Sims, an alleged fugitive slave from Georgia. During the trial, the Boston court house was surrounded by a large police force, and was enclosed in chains, beneath which the judges of the supreme court of Massachusetts bowed as they entered and retired.
SPEECH
DELIVERED AT WORCESTER, SEPTEMBER 16, 1851, ON TAKING THE CHAIR AS PRESIDENT OF THE FREE SOIL STATE CONVENTION.
GENTLEMEN OF THE CONVENTION;
Accept my thanks. It would be an honor at any time to stand in this position before a body of men so large in their number and so influential by their respectability. But, gentlemen, at this hour of trial, at this time of peril to great principles, when the lights upon earth seem to be going out around us, and we must look for guidance to the lights above,--at this hour, I say, of trial and of peril, it is an especial honor to be called to a post of duty. The position of the friends of freedom at the present time reminds me of a beautiful sentiment expressed by one of the noblest of the old Roman philosophers, who said that those who were called to fill stations of danger and self-sacrifice should thank God for the honor of being deemed worthy of such a trust.[25]
Gentlemen, it was not until this morning, and since sunrise, that I was waited upon by a delegation from your state committee, requesting my presence on this occasion. They knew, and you all know, how strongly my heart throbs, even at the mention of the great principles for which you contend. They knew, as you all know, how happy I should be if I could do any thing to deepen or to diffuse a feeling of devotion to human freedom.
But, gentlemen, there were certain circumstances connected with my position which seemed to make it necessary for me to say to your delegation, that, if I should appear here to-day, it should be with an entire privilege to speak out my mind fully on any political subject, and to say in what relation I stand to the present condition of public affairs, both state and national.
I say, then, gentlemen, that I stand where I have always stood, holding the principles of human freedom first and foremost in my regards, and, after these, our pecuniary, or merely worldly interests; holding, according to the order in which they are mentioned in the constitution of the United States, “life and liberty” to be before “property.” I stand where I stood in 1848, when I was first elected to Congress; and where my recorded votes and speeches show me to have stood through all the struggles of 1849 and ’50. I stand on the same principles yet. If other men have seen fit to go off to the right hand or to the left, I remain where I was. And if any individual of any party,--Whig, Democrat, or by whatever other appellation he may be known,--shall ever return from his wanderings to the good old homestead of Massachusetts principles,--Free Soil, Free Speech, and Free Men,--there, in that immortal birthplace of human liberty, he will find me, early in the morning and late at night, hard at work, to maintain the honor of the Pilgrims and the principles of our revolutionary sires.
Gentlemen, the perusal of the address and resolutions put forth by the Whig State Convention at Springfield, last week, brought me here. It seems to me that no true lover of human freedom can read that address and those resolutions intelligently, and understand their full scope and bearing, without being struck down by conviction, as suddenly as was St. Paul,--though the light and the voice come from an opposite quarter. Whatever the design of those papers may have been, their whole argument and office are to wheel the Whig party into line, to fight the battles of slavery.
Under these circumstances, I do not ask with a certain distinguished individual, on the prospective breaking up of parties, “Where am I to _go_?” I believe I do but echo the sentiments of thousands of as good and true Whigs as can be found in this commonwealth, (and there are none better any where,) when I say that, let others go where they will, here, _here_, on the old Whig platform of opposition to the extension of slavery, either into New Mexico _or into New England_; of freedom for the District of Columbia; and in favor of the old guaranties of _habeas corpus_ and trial by jury,--_here I remain_.
Gentlemen, the Free Soil party, as the name imports, is the party of freedom. The cardinal principle of their _creed_ is, that “all men are created free and equal,” and that they have an inalienable right to “life, liberty, property, and the pursuit of happiness.” Their _faith_ consists in the assurance that, in the good providence of God, the day will yet come when the blessedness of their creed will be realized among men; and by their _works_ they seek to hasten the advent of that glorious day.
A party of Freedom has existed in all ages of the world, but a mightier party of oppression has been arrayed against it. And though the lovers of human liberty have consisted of the greatest and best men who have ever lived, yet they have been overborne by violence, crushed and trampled upon by power, buried in dungeons, gibbeted on scaffolds, burnt at the stake! God, like the householder who sent servants to his vineyard from a far country, has, from age to age, sent great and mighty souls into the world to redeem it from oppression; but the oppressor has seized and mutilated and martyred them, with every form of ignominy towards the messengers themselves, and of impiety towards the Lord who sent them. The possessors of power and wealth seek to perpetuate these advantages in their families, their clan, or their caste; and over almost all the earth they have established dynasties for governments, landed or moneyed feudalisms for lords, and entails for individual families.
That we may see how fearful a thing this spirit of oppression is, not only for its cruelties, but for the tenacity of its malignant life, let it be remembered that the world had existed almost six thousand years before the principles of human liberty, civil and ecclesiastical, were clearly and fully set forth even on paper. This was first done by Mr. Jefferson, in 1776, in the Declaration of American Independence; and every body knows how intensely the same partisans who are now summoning their forces against the party of Freedom have hated him for his glorious efforts in favor of the freedom of man; how they pursued him with maledictions to his grave, and still break through the sanctity of the tomb to blacken his memory.
The immortal principles of the Declaration of Independence were partially embodied in the constitution of the United States. But, as the preëxisting metaphysics and mythology of the heathen nations mingled with the pure spirit of Christianity, and corrupted it, so the preëxisting laws and usages of oppression deformed to some extent the doctrines of the Declaration of Independence, and stamped some hideous features upon the otherwise fair face of the federal constitution. But such a preponderance of good did that instrument contain, that it was adopted by all the states. It was adopted, however, with the universal understanding that the healing influence of time would purge away the virus of the disease; and with no apprehension of the now undeniable fact, that the disease would be allowed to spread, like a gangrene, over the healthy parts. Had our fathers foreseen that the pro-slavery clauses in the constitution would prove a curse to whole classes and races of men entitled to protection under it, that they would be a shame to its administrators, and an opprobrium, throughout the civilized world, to the name of Republic,--it would be impious towards their memories to say they would ever have ratified it. But instead of the sounder parts diffusing healthful influences, and gradually eradicating the disease, the diseased parts have shot their infection through all the veins and organs of the body politic, until, from the heart to the extremities, there is not now to be found an uncontaminated spot.
Or to leave metaphor for literal speech: The constitution of the United States gave the most comprehensive and fundamental guaranties in favor of freedom, with here and there only an exception in behalf of slavery. It allowed “persons” who were held to service or labor and who should escape into other states to be retaken, but it also secured the trial by jury to every “person” who should claim it on any question of life or liberty, and on all questions of property even down to the paltry sum of twenty dollars. Yet there is not now, in the United States, a single spot, from ocean to ocean, where a free man is free from danger of being kidnapped and carried into horrible bondage for himself and his posterity forever; or,--what is as keenly torturing to every mind penetrated by the spirit and amenable to the precepts of the gospel,--of being called upon, under penalty of fines and fetters, to surrender his soul to this accursed work.
Now, as a true disciple of Christ ought to feel if he saw the imbruting dogmas and Moloch rites of heathenism returning to invade Christendom and to extinguish the lights of the gospel, so should every lover of liberty feel when he sees the fell spirit of slavery regaining its lost empire over the institutions of freedom.
The analogy between the present condition of this country and that of Europe is too striking not to attract attention. In 1848, there was a great uprising of the friends of liberty in both hemispheres. Thousands and tens of thousands sought to redress the wrongs of humanity,--by the cartridge box there, and by the ballot box here. The phalanx of tyranny and of mammon was unprepared for so sudden an onset, and for a moment their ranks were broken by the violence of the shock. But despotism and wealth have almost inconceivable advantages in a contest with the honest and toiling millions. In Europe, they have the military force,--a soulless machine, always ready to be turned against the people who are made to maintain it. They have also the whole ecclesiastical power, which leans upon the government for support, and fights with spiritual weapons for the masters whose plunder it shares.
In this country, owing to our different institutions, the means of quelling the spirit of liberty have been different. The administration have an immense amount of patronage at their disposal. They give contracts to the amount of millions, and select the contractors. Directly, or indirectly, they appoint some thirty thousand office-holders; and, by a lamentable reduplication of the powers of evil, they control twice or four times that number who are aspirants for office. Their influence bought over the slave power, by surrendering all our new territories to the invasion of slavery, and by giving fifty thousand square miles of free New Mexican territory to be turned into Texan slave territory, thus adding to the already enormous size of that slave-begotten state. Ten millions of dollars of almost worthless Texan stock were raised to par value by the signature of Millard Fillmore. During the whole pendency of the compromise measures, agents and brokers, reputed to be interested in this stock, hovered about the purlieus of the national Capitol. The stock was transferred from hand to hand, without record and without daylight, so that, besides the accomplices, Heaven and Satan only know into whose possession it came. And, as though the means of patronage and seducement on so magnificent a scale were not sufficient, a private purse, almost up to the figure of fifty thousand dollars, was presented to the “foremost man of all this world” in his apostasy to the principles of human liberty. These, fellow-citizens, were among the agencies and seductions which caused the discomfiture of the friends of freedom in the national contest of 1850. The tyrants of Europe had no vacant lands, or Texas stocks, wherewith to put down humanity, and so they used gunpowder and bayonets. Our slave power and its northern allies, being debarred by the principles of our government from bullets and bayonets, accomplished their work by the Judas articles of scrip and “dotation.” To carry out these purposes, the generals Haynau and Radetsky were found there; the senators, Webster and Cass, here.
The origin and the present necessity of the Free Soil party may be briefly stated. Some years previous to the annexation of Texas, an apprehension existed that that great breach of the constitution and outrage upon northern principles and feelings were meditated. Mr. John Quincy Adams sounded the alarm; but men were so engrossed by their business, and by their paltry local and temporary political strifes, that even his voice, potent and prophetic as it was, passed by unheeded. Some respect, however, was due, at least from policy if not from principle, to the many humble but earnest opponents of so flagrant a wrong. Before the consummation of that iniquity, the Massachusetts legislature passed strong resolutions against it. The question was taken by yeas and nays, and all the Whigs and almost all the Democrats in the general court recorded their names on the side of the constitution and liberty. But the slave power then had possession of all the departments of the national government, and under the auspices of a slaveholding President, a breach was made in the walls of the constitution wide enough to let in a foreign government, with all its burden of slavery on its back. Yet, notwithstanding this perfidy to all the principles of a true democracy, such was the external pressure brought to bear upon the members of the Democratic party, that but few of them abandoned its ranks. They “_acquiesced_,” as the modern phrase is, when any thing specially iniquitous is to be sanctioned. They were told, as the Whigs are now told in regard to the compromise and the Fugitive Slave law, that the act was _done and irrevocable_. The merchants were told, as the Whig merchants now are, that the crime of extending slavery would at least be attended by increased profits of trade. The manufacturers were told, as the Whig manufacturers now are, that if the number of slaves were increased at the south, it must create an increased demand for whips and negro cloths. And the mere blind political partisans were told, as the same class of Whigs are now, that if God designed to stop the heaven-defying enormity of spreading slavery over this continent, he must do it in some way consistent with the integrity of the Democratic party. Precisely the arguments which were then used to seduce and corrupt the Democratic party into “_acquiescence_” are used by leading Whigs and Whig presses now for the same unhallowed purpose. They are alike, except that in the one case there was the crime of originality, and in the other, the meanness of plagiarism.
But from the fatal day of the annexation of Texas, thousands and thousands of honest and intelligent Democrats, though still remaining true to what they believed to be the principles of the party, became alienated from its leaders. From that day, the claims of the party lay lightly, but the sins of the party heavily, upon their souls; and some there were who, like Daniel of old, went into their chambers three times every day, and, throwing open the windows which looked towards the Jerusalem of liberty, prayed aloud to the true God, although within hearing of the wild beasts which had been prepared to devour them.
The Whig party at the north, and particularly in Massachusetts, flourished under the reäction of the Texas fraud. Some of its leaders, it is true, shouted a welcome to Texas, though yet afar off; and, even while she stood outside of the Union, they threw their arms around her blood-besmeared form, hideous as Milton’s picture of Sin, with all her hell-hound progeny of future slave states howling in her womb, and gave her a fraternal embrace; and when the time came, they were also ready to vote men and money,--human blood and human souls,--for the robber atrocities of the Mexican war, which a majority of the House of Representatives in Congress, on motion of Mr. Ashmun, of Massachusetts, declared to be “unnecessarily and unconstitutionally commenced.” My friends, in your observations of men, you will find there are some moral nonentities,--political availabilities though they may be,--who can listen most sanctimoniously to the Saint Stephens, when they prophesy, and then hold the clothes of the Lynchers who stone them to death.
During all this period, however, the managers and the presses of the Whig party discoursed and printed very edifying anti-slavery homilies. As the harvest months came on, an anti-slavery zeal became an epidemic among them; and sporadic cases happened at other times, depending upon the days and places appointed by the governor and council for special elections. Every body remembers how the Boston _Atlas_ used to stir up the pure minds of the Democratic party by way of remembrance, by publishing,--periodically, as they say, and sometimes oftener,--the names of those Democratic senators or representatives in our general court who had voted for freedom and against Texas, in order to show their flagrant inconsistency in still adhering to a party that had been false to liberty. That paper has done some good service to our cause, especially in holding up for a long time the Fugitive Slave act to reprobation, while the other Whig presses in the city were daily striving to hide its atrocities from public view, and to defend what they could not hide. I trust the reluctant and struggling editors of that paper are not to be overcome by the mammon of slavery, whatever disguises it may assume or compulsion it may use. I trust the slave power will never be able to use towards them the language which hell’s portress addressed to Satan:--
“At first they called me _Sin_, and for a sign Portentous held me; but, familiar grown, I pleased, and with attractive graces won _The most averse; thee chiefly_.”
Those prosperous days of the Massachusetts Whigs continued until 1848. They thrived in basket and in store, until, like Jeshurun, they waxed fat, and, at least in the fourth and fifth congressional districts, they performed some very hard kicking. Then came the nomination of General Taylor. General Taylor was a Louisiana slaveholder. He had been the hero of the Florida war,--as great an outrage against a race as ever Rome or Russia committed. He had been a prominent, and, as many believed, a willing instrument in spilling the innocent blood of a sister republic. Even should the executive divest him of military command, or he should grow too old for service, it was universally known that there was a full black battalion on his own plantation which he would always command. The south demanded his nomination absolutely. They would hear no terms, and would offer no terms. In the northern canvass it was strongly asserted that he had written a letter, saying in so many words that he would not veto the Wilmot proviso; but that letter was so warily kept in a certain unmentionable part of a Whig merchant’s wardrobe, that neither Mesmerizers nor spiritual rappers could read it aloud to the people.
Hence all omens foreboded evil. Those which we looked for on the earth augured ill to our earthly interests; and those which we looked for above were in the wrong quarter of the heavens. The character of many of General Taylor’s friends brought distrust upon himself. He owed his election far more to the repulsion which good men felt towards his opponent, [General Cass,] than to any attraction they had towards him.
It was an occasion that tried the sagacity and the discretion of honest men, and I have always felt great charity both for his advocates and his opponents;--each being able to make out so plausible a case. The course which the Connecticut clergyman took on that occasion always commended itself to me. He voted the Taylor electoral ticket, but indorsed a prayer on the back of his ballot, saying that he was painfully uncertain as to the course of duty, and imploring that his vote might be sanctified for the good of the country.
But I am happy to avail myself of this, and of all opportunities, to do justice to the name of General Taylor. He turned out a very different man from what his friends or his foes supposed him to be. I believe he desired freedom for all the territories; and, could he have been permitted to carry out his own plans, he would have secured not only the freedom of the territories, but would also have consummated all the great national measures of the party that brought him into power. Mr. Clay threw the first stumbling-block in his way, by his compromise scheme. This, alone, might have been surmounted. But Mr. Webster’s apostasy, on the seventh of March, turned the tide of battle. It broke up General Taylor’s phalanx, both north and south. It roused the drooping and just yielding spirits of the slave power to frantic exertion. An enemy on the field General Taylor was always ready to meet; but he was not prepared for treachery in his own camp. Still, he maintained his ground resolutely, until struck down by the power that conquers the conquerors. There are many who believe it was Mr. Webster’s perfidy, with the nameless labors and anxieties that came in its train, which caused General Taylor’s death. It remains to be seen whether the political Macbeth shall succeed to the Banquo he spirited away, though all the “weird” brethren of the slave mart and of the “Union and Safety Committees” still tempt him onward by their incantations.
But it was under the circumstances of General Taylor’s nomination, and not of his death, that a portion of the Free Soilers parted company with the Whigs; as another portion did with the Democrats, because of General Cass’s avowed subserviency to the south,--and the conduct of all men is to be judged by the circumstances contemporary with their acts, and not subsequent to them.
If, however, there are those who judge of motives by results, this certainly can be said in vindication of the Free Soil party, that the now acting President of the United States, who came in on General Taylor’s ticket, and is now completing his presidential term, has done more for slavery than the Free Soil party ever predicted or feared would or could be done by the candidates whom they opposed. Even now, when the third year of the presidential term is but half spent, the Whig administration, aided by many leaders in the Whig party, is carrying out, with a relentless hand, and a more relentless heart, worse pro-slavery measures than the Free Soil party ever charged upon them during the canvass, or ever believed or conceived they could commit.
Such was the position of affairs in Massachusetts in 1848, when, almost for the first time within the memory of man, the Whigs failed, at the polls, to elect electors of President and Vice President.
Let us dwell for a moment on that crisis. It was during the canvass of 1848 that the Whigs became so amorous towards the rank and file of the Free Soil party. No knight-errant ever protested more fidelity, or vowed to do more valorous deeds in his mistress’ cause. Than some of them, no dove ever cooed with a sweeter gurgle. Than others, no stag ever offended with a ranker breath. They wooed them by daylight, by moonlight, and by torchlight. They swore belief not only in all the Free Soil scriptures, but in the traditions of its rabbins. The Ordinance of ’87 they loved; the Wilmot proviso they loved better; and would the coy damsel of Free Soilism but consent to the affiance, the abolition of slavery in the District of Columbia should gladden the espousals. Every Whig rally, from ward and school district meetings to monster mass meetings, resounded with Mr. Webster’s _slogan_, or war-cry, “No more slave states! No more slave representation in the Congress of the United States!” The Boston Daily _Advertiser_, the _Courier_, and the _Journal_, which are now south of South Carolina, in the impiety of the grounds on which they defend the wrongs and the aggressions of slavery, and shout on slave hunts over Pilgrim burial grounds,--all gave back the cry, with three times three, “No more slave states! No more slave representation in the Congress of the United States!” At all their conventions, the Whigs “resolved and re-resolved,” and--but I hope we may not be compelled to finish the line. You were told there was no more need of a Free Soil party in Massachusetts than of two suns in the heavens. The Whigs were the true Free Soilers; they held Free Soilism as a hereditament, or as an heir-loom long possessed by the ancient family of the Whigs. Even Mr. Webster, who had very much withdrawn from public gaze after the Philadelphia convention, and who, like Achilles, sat “sulking in his tent” and musing over the lost Briseis of a nomination, was at last tempted, by a succession of brilliant retaining fees, to come forth and reason with these recusant and contumacious Free Soilers face to face. And what did he say? Addressing himself distinctively to Free Soilers, he said, “If, my friends, the term ‘Free Soil’ party, or ‘Free Soil’ men, is meant to designate one who has been fixed, unalterable, to-day, yesterday, and for some time past, in opposition to slavery extension, then I may claim to be, and may hold myself, as good a Free Soil man as any member of that Buffalo convention. I pray to know where is their soil freer than that on which I have stood? I pray to know what words they can use, or can dictate to me, freer than those which have dwelt upon my lips. I pray to know with what feelings they can inspire my breast _more resolute and firm in resisting slavery_ EXTENSION OR ENCROACHMENT than have inhabited my bosom since the first time I opened my mouth in public life.”
These, gentlemen, were his words, spoken at Marshfield, on the first day of September, 1848. If he were here to-day to address you, could he speak any _words_ more grateful to your ears? If only truth and a heart were in that language, could he speak any thing better?
It was by such false pretences as these that thousands, and I doubt not tens of thousands, of men wholly penetrated and imbued with Free Soil principles, were kept in the Whig ranks. I was one of them. I had faith in men; and I have it still,--with important exceptions however. The needle points to the pole; but if you bring a huge black mass of pig iron and place by its side, it trembles, yet deviates, like a man struggling to be virtuous before overwhelming temptations. Remove the disturbing force, and it returns to its fidelity. So, when the next presidential election is over, I believe the great body of the rank and file of the Whig party in Massachusetts will return to their duty; for I venture to say, that if the Whigs of Massachusetts, in November, 1848, could have foreseen the present position of their party, and the demoralization which its leaders have been able to work in it, not one third of them, no, not one quarter of them, could have been induced to vote the ticket that elected Mr. Fillmore, brought in the present cabinet, and brought on the present disastrous policy.
But, gentlemen, I am occupying too much of your time. I will add but a few more words. I said the address and resolutions of the Whig State Convention, held at Springfield, last week, brought me here. I have read them with profound sorrow. It was the first Whig convention that ever met in Massachusetts that did not at least put forth some noble doctrines in favor of freedom, whether they meant to stand by them or not. Yes, even the convention of 1850,--only one year ago,--passed the following:--
“_Resolved_, That Massachusetts avows her unalterable determination to maintain all the principles and purposes she has in times past affirmed and reäffirmed, in relation to the extension of slavery.”
And yet the late convention, the first one that has met since the resolution which I have just read was adopted, has endorsed the present administration, which has done more to corrupt and deaden public sentiment at the north, as to the wrongs of slavery to the enslaved, and its injury to the free, and to aggrandize the pro-slavery south, and foster and encourage, ay, and _reward_ its aggressions;--has done more, I say, than any other administration that ever existed under this government. History will bear me out in this statement. Yet, at this crisis in human affairs, the one idea, the master purpose of the address and resolutions of that convention, seems to have been, to disparage and depreciate the great, eternal principles of freedom, and to bring odium and contempt upon the only party now organized for their support.
Gentlemen, the Whig leaders, in this respect, and in regard to this most important and paramount attribute of the Whig party, have lurched and lurched round, until they have got into the very trough of the pro-slavery sea. Its members, I admit, are free to follow them to their ruin, if they will; but free, too, I thank God, to go on in their old course, steering for the haven of honor and liberty. I give the great majority even of the Whig leaders the credit of having yielded to this pressure reluctantly, and under what they deemed a sort of political duress; for, gentlemen, a new and most alarming fact in the history of the Whig party of this country has been developed within the last two years. It is this: formerly, and universally, the Whig administration was supposed to be chosen to carry out the views of the Whig party; but the present administration, having abandoned the grounds on which it obtained power, and having, for its own purposes, taken new grounds, now demands of the Whig party to carry out,--not the old policy of the Whigs, but the new policy of the administration.
Fellow-citizens, could Mr. Fillmore by any possibility have been elected, in 1848; could he have got so many as ten thousand votes among all the Whigs of the Northern States, had his present attitude on the subject of slavery been foreseen?
Was there ever an hour when Mr. Webster could have obtained one tenth part,--one fiftieth part,--of the votes of the Massachusetts legislature for the office of senator, had the curtain of the future been lifted up, and his present position been revealed? You know there never was. But, during the year 1850, without any initial change, or symptom of a change, on the part of northern Whigs, the administration, prompted by its own purposes, or yielding from its own weakness, faced square about; and ever since that time it has been striving, by all the lures of patronage and the terrors of denunciation, to force the Whigs of the north on to a kind of political turn-table, like those railroad turn-tables you see at a car-house, so that the whole party, too, should be faced square about, made to retrace their course, by going backward among the same people who had seen them go forward, shouting down all they had shouted up, and forswearing all the glorious doctrines of liberty to which the whole world had heard them swear. Gentlemen, if, in this stress of circumstances, any body asks me, “Where shall I go?” my reply is, Don’t get on to that political turn-table which the administration has prepared for the Whig party, and not the Whig party for the administration; for it will carry your country to ruin, and yourself to dishonor.
During the canvass last autumn for a member of Congress for the eighth district, when, as you all know, there were such “godlike” exertions made against my election, I was asked, as a test question, by numbers of most respectable members of the Whig party, what I thought of the Free Soil party, and their proposed coalition at that time. I replied to them in the following words, and my answer is now on record in the hands of my constituents: “I say, as I have often said, that, if the Whigs will live up to their professions a hundred times made, I see no reason or warrant for separate organizations or coalitions. But if the great body of the Whigs mean to belie all their professions, and to persecute and punish all who remain faithful to the lessons which the Whig party itself has been teaching so strenuously for so many years, then what true Whig can blame any man for attempting to carry out what the Whigs themselves have promised to do, but have abandoned?”
But the Massachusetts Whig State Convention at that time passed the most pointed and emphatic resolution, affirming anew what they avowed themselves to have affirmed and reäffirmed so often before, on the subject of slavery. I reposed trust in their honesty; I believed in their veracity; and, as a consequence of my faith, I voted the entire Whig state ticket. Having read their last address and resolutions, I must now say, that if they desire any more votes of mine, they must revive my faith by some new evidence of their good works.
Let me advert to a few of the more salient points in that address. It labors to sustain a charge of coalition against the Free Soil party. Well, before I either approve or condemn a “coalition,” I must know by whom, and for what purpose, it was formed. A coalition, I suppose, like other acts, must be right or wrong according to the motive that prompts it.
But it is said the Free Soil party formed an alliance with those who, on some important points, had no sympathy with it. And where is this said? Why, in a land where our revolutionary fathers, fighting for freedom and for a republic, formed an alliance or coalition with monarchical and despotic France, and with monarchical and despotic Spain. What were the points of resemblance or unison between the American Confederation on the one side, and France or Spain on the other? In government, in policy, in manners, in education, in religion, nothing could have been more different. In what did they agree? In hostility to Great Britain alone; but not in a single one of the reasons for that hostility, nor in but one of the objects to be accomplished by it,--the humiliation of a haughty and overbearing power.
At the same time, Great Britain formed coalitions with the North American savages, to extinguish the rising dawn of freedom. And in this they have been too faithfully imitated by the old hunkers of both parties;--_imitated_, I say, not only in the object and spirit of the coalition, but in the weapons with which the warfare is waged. Yes, fellow-citizens; for there is an attempt, and that attempt is to be followed up, to overwhelm the Free Soil party by obloquy and denunciation. There is to be a cry of “bargain and corruption” to put down the Free Soil party, just as the administration of Mr. John Quincy Adams was put down by the same cry. Who now believes any thing about the charge of “bargain and corruption” against Mr. Adams,--except that it was a villanous charge? I believe the same charge against the Free Soil party will have come, twenty years hence, to the same result,--that of conferring honor upon its object, and infamy upon its authors.
But it is said the Free Soil party have seized the offices and emoluments of the state. I was absent last January at the time of the organization of the state government; but I have heard that those who were distinctively called Free Soilers received only the office of secretary of state, and president of the senate, and two or three out of the nine councillors;--all of them nearly or quite without patronage. I suppose all their emoluments combined would not equal what is received by the Boston postmaster, or the collector of the Boston port. Vast “ways and means” these for the corruption of the people! The whole of them would not suffice a cabinet officer for a _bonne bouche_ or a tidbit.
And now I suggest a further point. Was there a single Free Soiler who received an office last winter, on what is called the _division of the spoils_, which the people, when they voted for him at the polls, did not desire and mean that he should receive?
Now, I need not say that when men conspire or coalesce for a selfish purpose, whether that purpose be office, or emolument, or the profits of trade, or the increase of dividends, and especially if they sacrifice great principles of public utility, or morality, or religion, for the selfish end, I condemn the deed with my whole heart. So when representatives, or agents of any kind, are elected or appointed for special purposes, and by votes or influences without which they could not have obtained their posts, and then, for their own ambitious or mercenary objects, _they_ coalesce to defeat the will of their constituents, any severity of language, in holding up their conduct to reprobation, may be used with my full consent. Precisely of this nature was the coalition between Mr. Webster and General Cass, to carry through the compromise measures and the Fugitive Slave bill. Both were agents, both betrayed and violated the will of their principals. Could Mr. Eliot, of Boston, have been elected to Congress, had he avowed his intention to vote for the Fugitive Slave bill? Every body knows he could not. Yet he coalesced with the secessionists, Messrs. Clingman and Venable, of North Carolina, and with the whole South Carolina disunion delegation, in voting for the Fugitive Slave bill. For Massachusetts, it was said that the passage of that bill would raise the price of manufacturing stocks; as, for North Carolina, it would increase the profits of negro-breeding. Here, then, are cases of coalition between persons mutually hostile on other points; and all the northern members engaged in it, not to carry out, but to defeat, the will of their constituents.
But the coalition entered into by the Free Soil party in this state, last year, was a coalition planned, formed, sanctioned, and executed, as far as they could execute it, by the people themselves, acting in their original, sovereign capacity, at their primary meetings, and at the ballot box. It was not originated by representatives against the wishes of their constituents; but the representatives carried out what the people who chose them willed. What conclusively proves this to be so is, that the people who elected these representatives were satisfied with what they did; and, since the work has been done, have shown their approval of it in every practicable way.
There may be wrong motives prompting to the most useful and beneficent acts, as good motives sometimes lead to the most pernicious conduct; but I am speaking of these acts of alleged coalition which were instituted by the people themselves, discussed in their hearing at all the primary meetings and all the conventions, and afterwards ratified by their votes; and I say, to compare such a coalition with that which took place between Whigs and Democrats in the Senate of the United States, and between unionists and disunionists, slave-breeders and manufacturers, in the House, to carry through the compromise bills and the Fugitive Slave bill, seems to me illogical, preposterous, and absurd. But it is said that the bargain in the one case was open and public; and that its terms were reduced to writing, like a bond or covenant between individuals. Is it any the worse for that? Had you not as lief have an open bargain that you can see, as secret ones, like the Texas stock bargains, that you cannot see? I suppose that coalitions can be _implied_ and _understood_, as well as contracts. Why, have you not seen such an implied coalition carried out in Faneuil Hall within a year, when the Hon. Benjamin F. Hallett led on his cohorts, and the Hon. Rufus Choate advanced his forces to join them; when Mr. Benjamin R. Curtis joined hands with Mr. David Henshaw, who was present by letter, if not in person,--honorable men all,--and formed one of the most loving and harmonious coalitions out of as heterogeneous and repulsive elements as ever chaos jumbled together,--a coalition not to lift the bleeding form of liberty up, but to crush it down.
The coalition entered into by the Free Soilers certainly did one thing which would atone for many errors. They elected Mr. Charles Sumner to the Senate of the United States. And I cannot believe there is a man to be found in any party so shameless and depraved as to charge Mr. Sumner with any dishonorable coalescing, or with being tainted, in a hair of his head or in a filament of his garments, with “bargain and corruption.” Mr. Sumner was not elected on any principle of availability, but on the principle of “_Detur digniori_,”--“Let it be given to the most worthy.” His lofty pedestal is too firm to be shaken by any such accusation. His character is not to be affected by any office which he shall hold, but only by what _he does_, whether in office or out of it.
While defending, in this way, the principle of coalitions, when formed by the people themselves, no one, of course, could be understood as pledging himself to vote for all their measures. This would be the old and wicked partisan principle of standing by our party, right or wrong. I am also free to say that there is, in my opinion, a _prima facie_ objection against coalitions; but I cannot doubt the existence of cases where they are not only justifiable, but laudable. I lay down this great principle: I think the Free Soil party should act at any time, on any point, with any party through whom they can help the cause of freedom.
The Whig address remarks as follows: “We are now able to say, after the experience of nearly a twelvemonth, that it, [the administration,] has fully earned the confidence which we awarded to it in advance. _The great interests of the country have been faithfully cared for!_” I ask, What great interests of the country have been faithfully cared for? What interest of the Whig party, assuming to be the country, has been faithfully cared for? Have we got a tariff? Mr. Webster dissipated all chance of that for the present, and I fear for years to come, when he taught the south to threaten and prevail. Have we any river and harbor appropriations? Alas! northern capital and northern lives still go to the bottom on our western waters. Is the financial policy of the country changed? Let the condition of the money market for the last few months, and also its prospective condition, grinding the middle classes of tradesmen and manufacturers as between the upper and nether millstone, answer this question. A reform in all these particulars would doubtless have been affected but for Mr. Webster’s apostasy; but where are these reforms now? If they exist at all, they exist in some indefinite future. What interest of the country, then, has been faithfully cared for or secured? Not one! Not one! The most prominent member of the administration has been engaged in carrying out the policy of the south,--in visiting southern cities to pander to the slave power, and northern cities to stifle the spirit of freedom. Two armed expeditions have been fitted out in our own ports against the territory of a government with which we are at peace, resulting in the loss of hundreds of lives, while the President and his first secretary have been spending their time gayly at watering-places. When some of our citizens, a few years ago, afforded some assistance to the “Liberals” of Canada, in favor of a movement which Canadians themselves had already set on foot, the government promptly and energetically interfered. But Canada and Cuba are wider apart _politically_ than they are _geographically_. Slavery makes the difference between them.
The only valorous exploit of this administration was the issuing of a proclamation, when one southern slave, from among three millions, escaped from the house of bondage, and found that protection under the British ensign which was denied to him by the American flag, and that right to a trial by jury under a monarchy which was denied to him by a republic. Or, if any other act should be added to the preceding, it was the President’s letter to Dr. Collins, of Georgia, offering the use of the army and navy of the United States to catch one poor white woman, Ellen Crafts, and her husband, and return them to bondage.
In another passage of the Whig address all disguise is cast off, and it is openly declared, that the giving of an extra slave state to Texas, with territory enough for half a dozen more as large as Massachusetts, and ten millions of dollars in addition to that, and the statutory permission that slavery may go into New Mexico and Utah, and even that abhorred enactment, the Fugitive Slave law, are only “factitious and imaginary” grounds of complaint. The Free Soil party is condemned because it takes any notice of such “factitious and imaginary” causes. A three-penny tax on tea was a real grievance,--one fit to be resisted unto blood, to be historically recorded, and to which we are not ashamed to refer when descanting upon the honor of our fathers. But such largesses to slavery as kings could not afford to give, and the robbery of an entire race of all its rights,--yes, and with authority, too, to make us help commit the robbery,--these are “factitious and imaginary” causes of dissatisfaction. Men of Massachusetts! moral and religious men! lovers of freedom and of your country, were you prepared for this?
But the address goes still further. It goes into an elaborate palliation of the Fugitive Slave law itself. It first attempts to shift the question by asking the Free Soilers what they would do with regard to the constitutional provision respecting escaped slaves. The views of the Free Soil party on this point, and their purpose of fidelity to the constitution, have been set forth a hundred times. In further answer, therefore, to this question, I trust it is only necessary to remark, that the Free Soil party _will do what they say_, and not pass ten long years in asserting, and protesting, and resolving, and calling Earth and Heaven to witness their devotion to Freedom, and then disavow all they had ever avowed, and forswear their oaths.
Let me read to you the disparaging and contemptuous remark of the address on that great palladium of human liberty, the trial by jury. “Is nothing meant,” it gravely asks, “but the substitution of the verdict of a jury for the decision of a judge.” Nothing but--_what_? “The verdict of a jury for the decision of a judge,” that is, of a commissioner! And are the persons who prepared that address so nearly stone blind as not to recognize the infinite difference between the verdict of a jury and the decisions of such commissioners as Messrs. Ingraham, Smith, and Nelson? Ingraham, of Philadelphia, sent a man into bondage whom the alleged claimant refused to receive as soon as he saw him, knowing that all his family, and all his slaves, and all his neighbors would see that he had no right to him. Smith, of Buffalo, gave a certificate to carry Daniel into slavery, when not a single item, or particle, or tittle of legal and admissible evidence was before him as proof, as was afterwards shown by Judge Conkling, of the United States court. Nelson, of New York, forced the facts in Bolding’s case to bring them within the law which he himself had laid down, as much as ever a fraudulent book-keeper forced balances to cover an embezzlement. Sims, instead of having common-law notice and time to send for evidence, was seized at night on a false and trumped-up charge of stealing. Daniel was knocked down by the claimant’s agent with a club, tumbled and tortured upon a hot stove, his scalp torn open, and then compelled to go to trial, while, as described by an eye witness, “he sat dozing, unable to talk with his counsel, with the blood slowly oozing out of his mouth and nostrils.” Hamlet, Long, and Bolding were sprung upon as remorselessly as a tiger springs upon a lamb, and carried to trial without being allowed to go to their respective homes to bid farewell to their families. An alleged slave has lately been taken from Pennsylvania who was seized in the night, tried in the night, and carried away on the same night, without any opportunity for preparation, for counsel, or for defence. The kidnapper, Alberti, now lies in a Pennsylvania prison for carrying away a mother and her child; but the mother and the child are now groaning under the lash of a southern taskmaster. Had this villain, Alberti, and his accomplices been detected while the victims were still in their hands, I suppose he would have carried them before Mr. Commissioner Ingraham, and had the wrong _legally_ rectified,--the blackness of the crime _judicially_ washed white. These are but specimens of what the Fugitive Slave law has already done, before the public mind has become familiarized with its brutalities, and while there is yet some sensibility to the claims of justice and mercy left among us. And yet the writer of this address and the committee that offered it, ask us whether all we mean is the substitution of the verdict of a jury for the decision of a commissioner. I answer, that this difference which they so be-little and disparage will often be all the difference between freedom and bondage, between life and death, between honor and infamy, between happiness and perdition.
And now, fellow-citizens, if, in addition to having our northern freemen kidnapped in southern ports, and imprisoned and sold into bondage; if, in addition to fighting for foreign territory to be added to the domain of slavery; if, in addition to being taxed, in sums of millions and tens of millions, to fortify the slave power;--if, in addition to all this, we are to be deprived and defrauded of that noble and venerable institution, the trial by jury,--an institution sanctified by the blood of martyrs, hallowed by the prayers of sainted patriots, held sacred by all good men, and taught to their children like the living oracles of God;--if this attempt is to be made, as the late Whig address foreshadows,--then I say, a more flagrant case of apostasy is nowhere to be found on the records of any history, sacred or profane, since Satan broke into paradise and _Websterized_ our first parents.
I shall advert to but one more point in the address. It speaks of the “pitiable humbug of ballot envelopes.” Now, gentlemen, I may be all wrong on this subject. My instincts, reason, judgment, conscience, may all mislead; but from the first time, now years ago, when I heard this subject broached, my instincts, reason, judgment, conscience, have all been in its favor. Why, fellow-citizens, the ballot is worse than useless, if it be not FREE! Better be debarred from the privilege of voting at all, than to be mocked with the form, while cheated of the substance. A southern slave stands higher, politically, than a northern laborer, if the latter must vote as his employer dictates. It may be very well for an opulent man, one of vast fortune, who is dependent on nobody, and so cares for nobody, who goes quarterly and takes his thousands of dollars for rents or dividends; it may be very well for him to laugh at the secret ballot, and call it a “humbug;” but let us look at the other end of the scale. Let us look in the thousands of day-laborers, of workmen on corporation grounds, of dependent clerks, of subordinates at custom-houses and other public offices, and so forth, who have no capital but their industry, no resources but their daily earnings, who have an aged mother or dependent sisters to support, or a family of children to be fed, clothed, and educated; who may be turned out even of the humble tenements where they live, as winter is coming on; who may be refused promotion or advancement in their work and in their wages; and in regard to some of whom the wolf of hunger sits growling at the door; let us look at these, I say, and then answer the question, whether they ought not to be protected in voting according to their judgment and conscience. The liberty of voting includes all other liberties. The man of independent circumstances has this liberty; and no man’s circumstances, not even the poorest and the humblest, should be so dependent as to take it away.
I do not desire this secret ballot law for myself. I like to lay my ballot in the box, face upwards, looking heavenward; looking the Paul Prys who hover round, full in the eye; but I am willing and glad to put that ballot in an envelope, in order to protect my poor neighbor, the bread of whose mouth, the shelter of whose family, and the education of whose children, may depend upon the vote he gives. Ay, I go further. I should think that any high-minded man, any man having proper sensibilities respecting his relations to his social inferiors, would rejoice in such a law as this; because it would take away all ground of accusation or imputation that he would do so unrighteous and dastardly a deed as to invade a dependant’s right of voting as it might seem to him good.
Gentlemen, it is said, in one of the Springfield resolutions, that the last legislature cost the state an extra fifty thousand dollars. Whether it did or not is not of any very vast importance; though I confess I have a great respect for Poor Richard’s economy, and would save all that I could. But does not the very mention of this sum of fifty thousand remind one of another sum, almost precisely the same, which was spent last year on one of Mr. Sumner’s predecessors in the senatorial office? And if it cost fifty thousand dollars for a ticket to pass Mr. Webster out of the Senate, it was surely worth as much for a ticket to pass Mr. Sumner in.
Gentlemen, I close by remarking that it is in view of these great questions of human freedom,--in view of the solemn responsibility in which we stand to our country and to posterity, that we have assembled here to-day. May this meeting prove to be a concentration of rays of scattered light and wisdom, meeting and burning in a focus, and then sending back illumination and cheering to all the parts of our beloved commonwealth. If, in my humble way, I can do any thing to promote so glorious an object, my services are at your disposal.
FOOTNOTES:
[25] Seneca. [The passage is quoted in the Dedication, pp. ix., x.]
Transcriber’s Notes
Page 24: “chaper 41,” changed to “chapter 41,”
Page 107: “From the speeeh” changed to “From the speech”
Page 161: “Hebpurn et al” changed to “Hepburn et al”
Page 189: “Sierra Neveda” changed to “Sierra Nevada”
Page 190: “not only guranties” changed to “not only guarantees”
Page 239: “36´ 30°” changed to “36° 30´”
Page 265: “leger book” changed to “ledger book”
Page 287: “synonymes given” changed to “synonyms given”
Page 315: “wordly affairs,” changed to “worldly affairs,”
Page 321: “travel though any part” changed to “travel through any part”
Page 333: “reverened and learned” changed to “revered and learned”
Page 336: “be villified” changed to “be vilified”
Page 376: “of New Hamphire” changed to “of New Hampshire”
Page 414: “the apellants” changed to “the appellants”
Page 444: “as orginally” changed to “as originally”
Page 464: “wordly advantages” changed to “worldly advantages”