Chapter II

From this general review of the relations of the National Government to Slavery, I pass to the consideration of THE TRUE NATURE OF THE PROVISION FOR THE RENDITION OF FUGITIVES FROM SERVICE, embracing an examination of this provision in the Constitution, and especially of the recent Act of Congress in pursuance thereof. As I begin this discussion, let me bespeak anew your candor. Not in prejudice, but in the light of history and of reason, we must consider this subject. The way will then be easy and the conclusion certain.

Much error arises from the exaggerated importance now attached to this provision, and from assumptions with regard to its origin and primitive character. It is often asserted that it was suggested by some special difficulty, which had become practically and extensively felt, anterior to the Constitution. But this is one of the myths or fables with which the supporters of Slavery have surrounded their false god. In the articles of Confederation, while provision is made for the surrender of fugitive criminals, nothing is said of fugitive slaves or servants; and there is no evidence in any quarter, until after the National Convention, of hardship or solicitude on this account. No previous voice was heard to express desire for any provision on the subject. The story to the contrary is a modern fiction.

I put aside, as equally fabulous, the common saying, that this provision was one of the original compromises of the Constitution, and an essential condition of Union. Though sanctioned by eminent judicial opinions, it will be found that this statement is hastily made, without any support in the records of the Convention, the only authentic evidence of the compromises; nor will it be easy to find any authority for it in any contemporary document, speech, published letter, or pamphlet of any kind. It is true that there were compromises at the formation of the Constitution, which were the subject of anxious debate; but this was not one of them.

There was a compromise between the small and large States, by which equality was secured to all the States in the Senate.

There was another compromise finally carried, under threats from the South, on the motion of a New England member, by which the Slave States are allowed Representatives according to the whole number of free persons and "three fifths of all other persons," thus securing political power on account of their slaves, in consideration that direct taxes should be apportioned in the same way. Direct taxes have been imposed at only four brief intervals. The political power has been constant, and at this moment sends twenty-one members to the other House.

There was a third compromise, not to be mentioned without shame. It was that hateful bargain by which Congress was restrained until 1808 from the prohibition of the foreign Slave-trade, thus securing, down to that period, toleration for crime. This was pertinaciously pressed by the South, even to the extent of absolute restriction on Congress. John Rutledge said:

"If the Convention thinks that North Carolina, South Carolina, and Georgia will ever agree to the Plan (the National Constitution), unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest." Charles Pinckney said: "South Carolina can never receive the Plan, if it prohibits the slave-trade." Charles Cotesworth Pinckney "thought himself bound to declare candidly, that he did not think South Carolina would stop her importations of slaves in any short time." The effrontery of the slave-masters was matched by the sordidness of the Eastern members, who yielded again. Luther Martin, the eminent member of the Convention, in his contemporary address to the Legislature of Maryland, described the compromise. "I found," he said, "The Eastern States, notwithstanding their aversion to Slavery, were very willing to indulge the Southern States at least with a temporary liberty to prosecute the slave-trade, _provided the Southern States would in their turn gratify them by laying no restriction on navigation acts_." The bargain was struck, and at this price the Southern States gained the detestable indulgence. At a subsequent day Congress branded the slave-trade as piracy, and thus, by solemn legislative act, adjudged this compromise to be felonious and wicked.

Such are the three chief original compromises of the Constitution and essential conditions of Union. The case of fugitives from service is not of these. During the Convention it was not in any way associated with these. Nor is there any evidence from the records of this body, that the provision on this subject was regarded with any peculiar interest. As its absence from the Articles of Confederation had not been the occasion of solicitude or de-sire, anterior to the National Convention, so it did not enter into any of the original plans of the Constitution. It was introduced tardily, at a late period of the Convention, and adopted with very little and most casual discussion. A few facts show how utterly unfounded are recent assumptions.

The National Convention was convoked to meet at Philadelphia on the second Monday in May, 1787. Several members appeared at this time, but, a majority of the States not being represented, those present adjourned from day to day until the 25th, when the Convention was organized by the choice of George Washington as President. On the 28th a few brief rules and orders were adopted. On the next day, they commenced their great work.

On the same day, Edmund Randolph, of slaveholding Virginia, laid before the Convention a series of fifteen resolutions, containing his plan for the establishment of a New National Government. Here was no allusion to fugitives slaves.

Also, on the same day, Charles Pinckney, of slaveholding South Carolina, laid before the Convention what was called "A Draft of a Federal Government, to be agreed upon between the Free and Independent States of America," an elaborate paper, marked by considerable minuteness of detail. Here are provisions, borrowed from the Articles of Confederation, securing to the citizens of each State equal privileges, in the several States, giving faith to the public records of the States, and ordaining the surrender of fugitives from justice. But this draft, though from the flaming guardian of the slave interest, contained no allusion to fugitive slaves.

In the course of the Convention other plans were brought forward: on the 15th of June, aseries of eleven propositions by Mr. Paterson, of New Jersey, "so as to render the Federal Constitution adequate to the exigencies of Government and the preservation of the Union"; on the 18th June, eleven propositions by Mr. Hamilton, of New York, "containing his ideas of a suitable plan of Government for the United States" and on the 19th June, Mr. Randolph's resolutions, originally offered on the 29th May, "as altered, amended, and agreed to in Committee of the Whole House." On the 26th July, twenty-three resolutions, already adopted on different days in the Convention, were referred to a "Committee of Detail," for reduction to the form of a Constitution. On the 6th August this Committee reported the finished draft of a Constitution. And yet in all these resolutions, plans, and drafts, seven in number, proceeding from eminent members and from able committees, no allusion is made to fugitive slaves. For three months the Convention was in session, and not a word uttered on this subject.

At last, on the 28th August, as the Convention was drawing to a close, on the consideration of the article providing for the privileges of citizens in different States, we meet the first reference to this matter, in words worthy of note. "General (Charles Cotesworth) Pinckney was not satisfied with it. He SEEMED to wish some provision should be included in favor of property in slaves." But he made no proposition. Unwilling to shock the Convention, and uncertain in his own mind, he only seemed to wish such a provision. In this vague expression of a vague desire this idea first appeared. In this modest, hesitating phrase is the germ of the audacious, unhesitating Slave Act. Here is the little vapor, which has since swollen, as in the Arabian tale, to the power and dimensions of a giant. The next article under discussion provided for the surrender of fugitives from justice. Mr. Butler and Mr. Charles Pinckney, both from South Carolina, now moved openly to require "fugitive slaves and servants to be delivered up like criminals." Here was no disguise. With Hamlet, it was now said in spirit,

"Seems, Madam! Nay it is. I know not seems."

But the very boldness of the effort drew attention and opposition. Mr. Wilson, of Pennsylvania, the learned jurist and excellent man, at once objected: "This would oblige the Executive of the State to do it at the public expense." Mr. Sherman, of Connecticut, "saw no more propriety in the public seizing and surrendering a slave or servant than a horse." Under the pressure of these objections, the offensive proposition was withdrawn,--never more to be renewed. The article for the surrender of criminals was then unanimously adopted. On the next day, 29th August, profiting by the suggestions already made, Mr. Butler moved a proposition,--substantially like that now found in the Constitution,--for the surrender, not of "fugitive slaves," as originally proposed, but simply of "persons bound to service or labor," which, without debate or opposition of any kind, was unanimously adopted.'

Here, palpably, was no labor of compromise, no adjustment of conflicting interest,--nor even any expression of solicitude. The clause finally adopted was vague and faint as the original suggestion. In its natural import it is not applicable to slaves. If supposed by some to be applicable, it is clear that it was supposed by others to be inapplicable. It is now insisted that the term "persons bound to service," or "held to service," as expressed in the final revision, is the equivalent or synonym for "slaves." This interpretation is rebuked by an incident to which reference has been already made, but which will bear repetition. On the 13th September--a little more than a fortnight after the clause was adopted, and when, if deemed to be of any significance, it could not have been forgotten--the very word "service," came under debate, and received a fixed meaning. It was unanimously adopted as a substitute for "servitude" in another part of the Constitution, for the reason that it expressed "the obligations of free persons," while the other expressed "the condition of slaves." In the face of this authentic evidence, reported by Mr. Madison, it is difficult to see how the term "persons held to service" can be deemed to express anything beyond the "obligations of free persons." Thus, in the light of calm inquiry, does this exaggerated clause lose its importance.

The provision, showing itself thus tardily, and so slightly regarded in the National Convention, was neglected in much of the contemporaneous discussion before the people. In the Conventions of South Carolina, North Carolina,and Virginia, it was commended as securing important rights, though on this point there was difference of opinion. In the Virginia Convention, an eminent character, Mr. George Mason, with others, expressly declared that there was "no security of property coming within this section." In the other Conventions it was disregarded. Massachusetts, while exhibiting peculiar sensitiveness at any responsibility for slavery, seemed to view it with unconcern. One of her leading statesmen, General Heath, in the debates of the State Convention, strenuously asserted, that, in ratifying the Constitution, the people of Massachusetts "would do nothing to hold the blacks in slavery." "_The Federalist_," in its classification of the powers of Congress, describes and groups a large number as "those which provide for the harmony and proper intercourse among the States," and therein speaks of the power over public records, standing next in the Constitution to the provision concerning fugitives from service; but it fails to recognize the latter among the means of promoting "harmony and proper intercourse;" nor does its triumvirate of authors anywhere allude to the provision.

The indifference thus far attending this subject still continued. The earliest Act of Congress, passed in 1793, drew little attention. It was not suggested originally by any difficulty or anxiety touching fugitives from service, nor is there any contemporary record, in debate or otherwise, showing that any special importance was attached to its provisions in this regard. The attention of Congress was directed to fugitives from justice, and, with little deliberation, it undertook, in the same bill, to provide for both cases. In this accidental manner was legislation on this subject first attempted.

There is no evidence that fugitives were often seized under this Act. From a competent inquirer we learn that twenty-six years elapsed before it was successfully enforced in any Free State. It is certain, that, in a case at Boston, towards the close of the last century, illustrated by Josiah Quincy as counsel, the crowd about the magistrate, at the examination, quietly and spontaneously opened a way for the fugitive, and thus the Act failed to be executed. It is also certain, that, in Vermont, at the beginning of the century, a Judge of the Supreme Court of the State, on application for the surrender of an alleged slave, accompanied by documentary evidence, gloriously refused compliance, unless the master could show a Bill of Sale from the Almighty. Even these cases passed without public comment.

In 1801 the subject was introduced in the House of Representatives by an effort for another Act, which, on consideration, was rejected. At a later day, in 1817-18, though still disregarded by the country, it seemed to excite a short-lived interest in Congress. In the House of Representatives, on motion of Mr. Pindall, of Virginia, a committee was appointed to inquire into the expediency of "providing more effectually by law for reclaiming servants and slaves escaping from one State into an-other," and a bill reported by them to amend the Act of 1793, after consideration for several days in Committee of the Whole, was passed. In the Senate, after much attention and warm debate, it passed with amendments. But on return to the House for adoption of the amendments, it was dropped. This effort, which, in the discussions of this subject, has been thus far unnoticed, is chiefly remarkable as the earliest recorded evidence of the unwarrantable assertion, now so common, that this provision was originally of vital importance to the peace and harmony of the country.

At last, in 1850, we have another Act, passed by both Houses of Congress, and approved by the President, familiarly known as the Fugitive Slave Bill. As I read this statute, I am filled with painful emotions. The masterly subtlety with which it is drawn might challenge admiration, if exerted for a benevolent purpose; but in an age of sensibility and refinement, a machine of torture, however skilful and apt, cannot be regarded without horror. Sir, in the name of the Constitution, which it violates, of my country, which it dishonors, of Humanity, which it degrades, of Christianity, which it offends, I arraign this enactment, and now hold it up to the judgment of the Senate and the world. Again, I shrink from no responsibility. I may seem to stand alone; but all the patriots and martyrs of history, all the Fathers of the Republic, are with me. Sir, there is no attribute of God which does not take part against this Act.

But I am to regard it now chiefly as an infringement of the Constitution. Here its outrages, flagrant as manifold, assume the deepest dye and broadest character only when we consider that by its language it is not restricted to any special race or class, to the African or to the person with African blood, but that any inhabitant of the United States, of whatever complexion or condition, may be its victim. Without discrimination of color even, and in violation of every presumption of freedom, the Act surrenders all who may be claimed as "owing service or labor" to the same tyrannical proceeding. If there be any whose sympathies are not moved for the slave, who do not cherish the rights of the humble African, struggling for divine Freedom, as warmly as the rights of the white man, let him consider well that the rights of all are equally assailed. "Nephew," said Algernon Sidney in prison, on the night before his execution, "I value not my own life a chip; but what concerns me is, that the law which takes away my life may hang every one of you, whenever it is thought convenient."

Whilst thus comprehensive in its provisions, and applicable to all, there is no safeguard of Human Freedom which the monster Act does not set at nought.

It commits this great question--than which none is more sacred in the law--not to a solemn trial, but to summary proceedings.

It commits this great question, not to one of the high tribunals of the land, but to the unaided judgment of a single petty magistrate.

It commits this great question to a magistrate appointed, not by the President with the consent of the Senate, but by the Court,--holding office, not during good behavior, but merely during the will of the Court,--and receiving, not a regular salary, but fees according to each individual case.

It authorizes judgment on _ex parte_ evidence, by affidavit, without the sanction of cross-examination.

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

Contrary to the declared purposes of the framers of the Constitution, it sends the fugitive back "at the public expense."

Adding meanness to violation of the Constitution, it bribes the Commissioner by a double stipend to pronounce against Freedom. If he dooms a man to Slavery, the reward is ten dollars; but saving him to Freedom, his dole is five.

The Constitution expressly secures the "free exercise of religion"; but this Act visits with unrelenting penalties the faithful men and women who render to the fugitive that countenance, succor, and shelter which in their conscience "religion" requires; and thus is practical religion directly assailed. Plain commandments are broken; and are we not told that "Whosoever shall break one of these least commandments, and shall teach men so, he shall be called the least in the kingdom of Heaven"?

As it is for the public weal that there should be an end of suits, so by the consent of civilized nations these must be instituted within fixed limitations of time; but this Act, exalting Slavery above even this practical principle of universal justice, ordains proceedings against Freedom without any reference to the lapse of time.

Glancing only at these points, and not stopping for argument, vindication, or illustration, I come at once upon two chief radical objections to this Act, identical in principle with those triumphantly urged by our fathers against the British Stamp Act; first, that it is a usurpation by Congress of powers not granted by the Constitution, and an infraction of rights secured to the States; and, secondly, that it takes away Trial by Jury in a question of Personal Liberty and a suit at Common Law. Either of these objections, if sustained, strikes at the very root of the Act. That it is obnoxious to both is beyond doubt.

Here, at this stage, I encounter the difficulty, that these objections are already foreclosed by legislation of Congress and decisions of the Supreme Court,--that as early as 1793 Congress assumed power over this subject by an Act which failed to secure Trial by Jury, and that the validity of this Act under the Constitution has been affirmed by the Supreme Court. On examination, this difficulty will disappear.

The Act of 1793 proceeded from a Congress that had already recognized the United States Bank, chartered by a previous Congress, which, though sanctioned by the Supreme Court, has been since in high quarters pronounced unconstitutional. If it erred as to the Bank, it may have erred also as to fugitives from service. But the Act itself contains a capital error on this very subject, so declared by the Supreme Court, in pretending to vest a portion of the judicial power of the Nation in State officers. This error takes from the Act all authority as an interpretation of the Constitution. I dismiss it.

The decisions of the Supreme Court are entitled to great consideration, and will not be mentioned by me except with respect. Among the memories of my youth are happy days when I sat at the feet of this tribunal, while MARSHALL presided, with STORY by his side. The pressure now proceeds from the case of Prigg v. Pennsylvania (16 Peters, 539), where is asserted the power of Congress. Without going into minute criticism of this judgment, or considering the extent to which it is extra-judicial, and therefore of no binding force,--all which has been done at the bar in one State, and by an able court in another,--but conceding to it a certain degree of weight as a rule to the judiciary on this particular point, still it does not touch the grave question which springs from the denial of Trial by Jury. This judgment was pronounced by Mr. Justice Story. From the interesting biography of the great jurist, recently published by his son, we learn that the question of Trial by Jury was not considered as before the Court; so that, in the estimation of the learned judge himself, it was still an open question.

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(1). _First of the power of Congress over this subject_.

The Constitution contains _powers_ granted to Congress, _compacts_ between the States, and _prohibitions_ addressed to the Nation and to the States. A compact or prohibition may be accompanied by a power,--but not necessarily, for it is essentially distinct in nature. And here the single question arises, Whether the Constitution, by grant, general or special, confers upon Congress any power to legislate on the subject of fugitives from service.

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The framers of the Constitution were wise and careful, having a reason for what they did, and understanding the language they employed. They did not, after discussion, incorporate into their work any superfluous provision; nor did they without design adopt the peculiar arrangement in which it appears. Adding to the record compact an express grant of power, they testified not only their desire for such power in Congress, but their conviction that without such express grant it would not exist. But if express grant was necessary in this case, it was equally necessary in all the other cases. _Expressum facit cessare tacitum_. Especially, in view of its odious character, was it necessary in the case of fugitives from service. Abstaining from any such grant, and then grouping the bare compact with other similar compacts, separate from every grant of power, they testified their purpose most significantly. Not only do they decline all addition to the compact of any such power, but, to render misapprehension impossible, to make assurance doubly sure, to exclude any contrary conclusion, they punctiliously arrange the clauses, on the principle of _noscitur a sociis_, so as to distinguish all the grants of power, but especially to make the new grant of power, in the case of public records, stand forth in the front by itself, severed from the naked compacts with which it was originally associated.

Thus the proceedings of the Convention show that the founders understood the necessity of powers in certain cases, and, on consideration, jealously granted them. A closing example will strengthen the argument. Congress is expressly empowered "to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies, throughout the United States." Without this provision these two subjects would have fallen within the control of the States, leaving the nation powerless to establish a uniform rule thereupon. Now, instead of the existing compact on fugitives from service, it would have been easy, had any such desire prevailed, to add this case to the clause on naturalization and bankruptcies, and to empower Congress To ESTABLISH A UNIFORM RULE FOR THE SURRENDER OF FUGITIVES FROM SERVICE THROUGHOUT THE UNITED STATES. Then, of course, whenever Congress undertook to exercise the power, all State control of the subject would be superseded. The National Government would have been constistuted, like Nimrod, the mighty Hunter, with power to gather the huntsmen, to halloo the pack, and to direct the chase of men, ranging at will, without regard to boundaries or jurisdictions, throughout all the States. But no person in the Convention, not one of the reckless partisans of slavery, was so audacious as to make this proposition. Had it been distinctly made, it would have been as distinctly denied.

The fact that the provision on this subject was adopted unanimously, while showing the little importance attached to it in the shape it finally assumed, testifies also that it could not have been regarded as a source of national power for Slavery. It will be remembered that among the members of the Convention were Gouverneur Morris, who had said that he "NEVER would concur in upholding domestic Slavery,"--Elbridge Gerry, who thought we "ought to be careful NOT to give any sanction to it,"--Roger Sherman, who "was OPPOSED to a tax on slaves imported, because it implied they were property,"--James Madison, who "thought it WRONG to admit in the Constitution the idea that there could be property in men,"--and Benjamin Franklin, who likened American slaveholders to Algerine corsairs. In the face of these unequivocal judgments, it is absurd to suppose that these eminent citizens consented unanimously to any provision by which the National Government, the creature of their hands, dedicated to freedom, could become the most offensive agent of Slavery.

Thus much for the evidence from the history of the Convention. But the true principles of our political system are in harmony with this conclusion of history; and here let me say a word of State rights.

It was the purpose of our fathers to create a National Government, and to endow it with adequate powers. They had known the perils of imbecility, discord, and confusion, protracted through the uncertain days of the Confederation, and they desired a government which should be a true bond of union and an efficient organ of national interests at home and abroad. But while fashioning this agency, they fully recognized the governments of the States. To the nation were delegated high powers, essential to the national interests, but specific in character and limited in number. To the States and to the people were reserved the powers, general in character and unlimited in number, not delegated to the nation or prohibited to the States.

The integrity of our political system depends upon harmony in the operations of the Nation and of the States. While the nation within its wide orbit is supreme, the States move with equal supremacy in their own. But, from the necessity of the case, the supremacy of each in its proper place excludes the other. The Nation cannot exercise rights reserved to the States, nor can the States interfere with the powers of the nation. Any such action on either side is a usurpation. These principles were distinctly declared by Mr. Jefferson in 1798, in words often adopted since, and which must find acceptance from all parties.

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I have already amply shown to-day that Slavery is in no respect national--that it is not within the sphere of national activity,--that it has no "positive" support in the Constitution,--and that any interpretation inconsistent with this principle would be abhorrent to the sentiments of its founders. Slavery is a local institution, peculiar to the States, and under the guardianship of State rights. It is impossible, without violence to the spirit and letter of the Constitution, to claim for Congress any power to legislate either for its abolition in the States or its support anywhere. Non-Intervention is the rule prescribed to the nation. Regarding the question in its more general aspects only, and putting aside, for the moment, the perfect evidence from the records of the convention, it is palpable that there is no national fountain out of which the existing Slave Act can possibly spring.

But this Act is not only an unwarrantable assumption of power by the nation, it is also an infraction of rights reserved to the States. Everywhere within their borders the States are peculiar guardians of personal liberty. By jury and habeas corpus to save the citizen harmless against all assault is among their duties and rights. To his State the citizen, when oppressed, may appeal; nor should he find that appeal denied. But this Act despoils him of rights, and despoils his State of all power to protect him. It subjects him to the wretched chance of false oaths, forged papers, and facile commissioners, and takes from him every safeguard. Now, if the slaveholder has a right to be secure at home in the enjoyment of Slavery, so also has the freeman of the North--and every person there is presumed to be a free man--an equal right to be secure at home in the enjoyment of freedom. The same principle of State rights by which Slavery is protected in the slave States throws an impenetrable shield over Freedom in the free States. And here, let me say, is the only security for Slavery in the slave States, as for Freedom in the free States. In the present fatal overthrow of State rights you teach a lesson which may return to plague the teacher. Compelling the National Government to stretch its Briarean arms into the free States for the sake of Slavery, you show openly how it may stretch these same hundred giant arms into the slave States for the sake of Freedom. This lesson was not taught by our fathers.

Here I end this branch of the question. The true principles of our political system, the history of the National Convention, the natural interpretation of the Constitution, all teach that this Act is a usurpation by Congress of powers that do not belong to it, and an infraction of rights secured to the States. It is a sword, whose handle is at the National Capital, and whose point is everywhere in the States. A weapon so terrible to personal liberty the nation has no power to grasp.

(2). And now of the denial of Trial by Jury.

Admitting, for the moment, that Congress is intrusted with power over this subject, which truth disowns, still the Act is again radically unconstitutional from its denial of Trial by Jury in a question of personal liberty and a suit of common law. Since on the one side there is a claim of property, and on the other of liberty, both property and liberty are involved in the issue. To this claim on either side is attached Trial by Jury.

To me, Sir, regarding this matter in the light of the Common Law and in the blaze of free institutions, it has always seemed impossible to arrive at any other conclusion. If the language of the Constitution were open to doubt, which it is not, still all the presumptions of law, all the leanings to Freedom, all the suggestions of justice, plead angel-tongued for this right. Nobody doubts that Congress, if it legislates on this matter, may allow a Trial by Jury. But if it may, so overwhelming is the claim of justice, it MUST. Beyond this, however, the question is determined by the precise letter of the Constitution.

Several expressions in the provision for the surrender of fugitives from service show the essential character of the proceedings. In the first place, the person must be, not merely charged, as in the case of fugitives from justice, but actually held to service in the State which he escaped. In the second place, he must "be delivered up on claim of the party to whom such service or labor may be due." These two facts--that he was held to service, and that his service was due to his claimant--are directly placed in issue, and must be proved. Two necessary incidents of the delivery may also be observed. First, it is made in the State where the fugitive is found; and, secondly, it restores to the claimant complete control over the person of the fugitive. From these circumstances it is evident that the proceedings cannot be regarded, in any just sense, as preliminary, or ancillary to some future formal trial, but as complete in themselves, final and conclusive.

These proceedings determine on the one side the question of property, and on the other the sacred question of personal liberty in its most transcendent form,--Liberty not merely for a day or a year, but for life, and the Liberty of generations that shall come after, so long as Slavery endures. To these questions the Constitution, by two specific provisions, attaches Trial by Jury. One is the familiar clause, already adduced: "No person shall be deprived of life, liberty, or property without due process of law,"--that is, without due proceeding at law, with Trial by Jury. Not stopping to dwell on this, I press at once to the other provision, which is still more express: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of Trial by Jury shall be preserved." This clause, which does not appear in the Constitution as first adopted, was suggested by the very spirit of freedom. At the close of the National Convention, Elbridge Gerry refused to sign the Constitution because, among other things, it established "a tribunal without juries, a star chamber as to civil cases."

Many united in his opposition, and on the recommendation of the First Congress this additional safeguard was adopted as an amendment.

Opposing this Act as doubly unconstitutional from the want of power in Congress and from the denial of trial by jury, I find myself again encouraged by the example of our Revolutionary Fathers, in a case which is a landmark of history. The parallel is important and complete. In 1765, the British Parliament, by a notorious statute, attempted to draw money from the colonies through a stamp tax, while the determination of certain questions of forfeiture under the statute was delegated, not to the Courts of Common Law, but to Courts of Admiralty without a jury. The Stamp Act, now execrated by all lovers of liberty, had this extent and no more. Its passage was the signal for a general flame of opposition and indignation throughout the colonies. It was denounced as contrary to the British Constitution, on two principal grounds--first, as a usurpation by Parliament of powers not belonging to it, and an infraction of rights secured to the colonies; and, secondly, as a denial of Trial by Jury in certain cases of property.

The public feeling was variously expressed. At Boston, on the day the act was to take effect, the shops were closed, the bells of the churches tolled, and the flags of the ships hung at half-mast. At Portsmouth, in New Hampshire, the bells were tolled, and the friends of liberty were summoned to hold themselves in readiness for her funeral. At New York, the obnoxious Act, headed "Folly of England and Ruin of America," was contemptuously hawked about the streets. Bodies of patriots were organized everywhere under the name of "Sons of Liberty." The merchants, inspired then by liberty, resolved to import no more goods from England until the repeal of the Act. The orators also spoke. James Otis with fiery tongue appealed to Magna Charta.

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Sir, regarding the Stamp Act candidly and cautiously, free from animosities of the time, it is impossible not to see that, though gravely unconstitutional, it was at most an infringement of civil liberty only, not of personal liberty. There was an unjust tax of a few pence, with the chance of amercement by a single judge without a jury; but by no provision of this act was the personal liberty of any man assailed. No freeman could be seized under it as a slave. Such an act, though justly obnoxious to every lover of constitutional Liberty, cannot be viewed with the feelings of repugnance enkindled by a statute which assails the personal liberty of every man, and under which any freeman may be seized as a slave. Sir, in placing the Stamp Act by the side of the Slave Act, I do injustice to that emanation of British tyranny. Both infringe important rights: one, of property; the other, the vital right of all, which is to other rights as soul to body,--the right of a man to himself. Both are condemned; but their relative condemnation must be measured by their relative characters. As Freedom is more than property, as Man is above the dollar that he owns, as heaven, to which we all aspire, is higher than earth, where every accumulation of wealth must ever remain, so are the rights assailed by an American Congress higher than those once assailed by the British Parliament. And just in this degree must history condemn the Slave Act more than the Stamp Act.

Sir, I might here stop. It is enough, in this place, and on this occasion, to show the unconstitutionality of this enactment. Your duty commences at once. All legislation hostile to the fundamental law of the land should be repealed without delay. But the argument is not yet exhausted. Even if this Act could claim any validity or apology under the Constitution, which it cannot, it lacks that essential support in the Public Conscience of the States, where it is to be enforced, which is the life of all law, and with-out which any law must become a dead letter.

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With every attempt to administer the Slave Act, it constantly becomes more revolting, particularly in its influence on the agents it enlists. Pitch cannot be touched without defilement, and all who lend themselves to this work seem at once and unconsciously to lose the better part of man. The spirit of the law passes into them, as the devils entered the swine. Upstart commissioners, mere mushrooms of courts, vie and revie with each other. Now by indecent speed, now by harshness of manner, now by denial of evidence, now by crippling the defense, and now by open, glaring wrong they make the odious Act yet more odious. Clemency, grace, and justice die in its presence. All this is observed by the world. Not a case occurs which does not harrow the souls of good men, and bring tears of sympathy to the eyes, and those nobler tears which "patriots shed o'er dying laws."

Sir, I shall speak frankly. If there be an exception to this feeling, it will be found chiefly with a peculiar class. It is a sorry fact, that the "mercantile interest," in unpardonable selfishness, twice in English history, frowned upon endeavors to suppress the atrocity of Algerine Slavery, that it sought to baffle Wilberforce's great effort for the abolition of the African slave-trade, and that, by a sordid compromise, at the formation of our Constitution, it exempted the same detested, Heaven-defying traffic from American judgment. And now representatives of this "interest," forgetful that Commerce is born of Freedom, join in hunting the Slave. But the great heart of the people recoils from this enactment. It palpitates for the fugitive, and rejoices in his escape. Sir, I am telling you facts. The literature of the age is all on his side. Songs, more potent than laws, are for him. Poets, with voices of melody, sing for Freedom. Who could tune for Slavery? They who make the permanent opinion of the country, who mould our youth,whose words, dropped into the soul, are the germs of character, supplicate for the Slave. And now, Sir, behold a new and heavenly ally. A woman, inspired by Christian genius, enters the lists, like another Joan of Arc, and with marvellous power sweeps the popular heart. Now melting to tears, and now inspiring to rage, her work everywhere touches the conscience, and makes the Slave-Hunter more hateful. In a brief period, nearly one hundred thousand copies of Uncle Tom's Cabin have been already circulated. But this extraordinary and sudden success, surpassing all other instances in the records of literature, cannot be regarded as but the triumph of genius. Better far, it is the testimony of the people, by an unprecedented act, against the Fugitive Slave Bill.

These things I dwell upon as incentives and tokens of an existing public sentiment, rendering this Act practically inoperative, except as a tremendous engine of horror. Sir, the sentiment is just. Even in the lands of Slavery, the slave-trader is loathed as an ignoble character, from whom the countenance is turned away; and can the Slave-Hunter be more regarded, while pursuing his prey in a land of Freedom? In early Europe, in barbarous days, while Slavery prevailed, a Hunting Master was held in aversion. Nor was this all. The fugitive was welcomed in the cities, and protected against pursuit. Sometimes vengeance awaited the Hunter. Down to this day, at Revel, now a Russian city, a sword is proudly preserved with which a hunting Baron was beheaded, who, in violation of the municipal rights of the place, seized a fugitive slave. Hostile to this Act as our public sentiment may be, it exhibits no similar trophy. The State laws of Massachusetts have been violated in the seizure of a fugitive slave; but no sword, like that of Revel, now hangs at Boston.

And now, Sir, let us review the field over which we have passed. We have seen that any compromise, finally closing the discussion of Slavery under the Constitution, is tyrannical, absurd, and impotent; that, as Slavery can exist only by virtue of positive law, and as it has no such positive support in the Constitution, it cannot exist within the national jurisdiction; that the Constitution nowhere recognizes property in man, and that, according to its true interpretation, Freedom and not Slavery is national, while Slavery and not Freedom is sectional;that in this spirit the National Government was first organized under Washington, himself an Abolitionist, surrounded by Abolitionists, while the whole country, by its Church, its Colleges, its Literature, and all its best voices, was united against Slavery, and the national flag at that time nowhere within the National Territory covered a single slave; still further, that the National Government is a government of delegated powers, and, as among these there is no power to support Slavery, this institution cannot be national, nor can Congress in any way legislate in its behalf; and, finally, that the establishment of this principle is the true way of peace and safety for the Republic. Considering next the provision for the surrender of fugitives from service, we have seen that it was not one of the original compromises of the Constitution; that it was introduced tardily and with hesitation, and adopted with little discussion, while then and for a long period thereafter it was regarded with comparative indifference; that the recent Slave Act, though many times unconstitutional, is especially so on two grounds, first, as a usurpation by Congress of powers not granted by the Constitution, and an infraction of rights secured to the States, and, secondly, as the denial of Trial by Jury, in a question of personal liberty and a suit at Common Law; that its glaring unconstitutionality finds a prototype in the British Stamp Act, which our fathers refused to obey as unconstitutional on two parallel grounds,--first, because it was a usurpation by Parliament of powers not belonging to it under the British Constitution, and an infraction of rights belonging to the Colonies, and, secondly, because it was the denial of Trial by Jury in certain cases of property; that, as Liberty is far above property, so is the outrage perpetrated by the American Congress far above that perpetrated by the British Parliament; and, finally, that the Slave Act has not that support, in the public sentiment of the States where it is to be executed, which is the life of all law, and which prudence and the precept of Washington require.

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Mr. President, I have occupied much time; but the great subject still stretches before us. One other point yet remains, which I must not leave untouched, and which justly belongs to the close. The Slave Act violates the Constitution, and shocks the Public Conscience. With modesty, and yet with firmness, let me add, Sir,it offends against the Divine Law. No such enactment is entitled to support. As the throne of God is above every earthly throne, so are his laws and statutes above all the laws and statutes of man. To question these is to question God himself. But to assume that human laws are beyond question is to claim for their fallible authors infallibility. To assume that they are always in conformity with the laws of God is presumptuously and impiously to exalt man even to equality with God. Clearly, human laws are not always in such conformity; nor can they ever be beyond question from each individual. Where the conflict is open, as if Congress should command the perpetration of murder, the office of conscience as final arbiter is undisputed. But in every conflict the same queenly office is hers. By no earthly power can she be dethroned. Each person, after anxious examination, without haste, without passion, solemnly for himself must decide this great controversy. Any other rule attributes infallibility to human laws, places them beyond question, and degrades all men to an unthinking, passive obedience.

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The mandates of an earthly power are to be discussed; those of Heaven must at once be performed; nor should we suffer ourselves to be drawn by any compact into opposition to God. Such is the rule of morals. Such, also, by the lips of judges and sages, is the proud declaration of English law, whence our own is derived. In this conviction, patriots have braved unjust commands, and martyrs have died.

And now, sir, the rule is commended to us. The good citizen, who sees before him the shivering fugitive, guilty of no crime, pursued, hunted down like a beast, while praying for Christian help and deliverance, and then reads the requirements of this Act, is filled with horror. Here is a despotic mandate "to aid and assist in the prompt and efficient execution of this law." Again let me speak frankly. Not rashly would I set myself against any requirement of law. This grave responsibility I would not lightly assume. But here the path of duty is clear. By the Supreme Law, which commands me to do no injustice, by the comprehensive Christian Law of Brotherhood, by the Constitution, which I have sworn to support, I AM BOUND TO DISOBEY THIS ACT. Never, in any capacity, can I render voluntary aid in its execution. Pains and penalties I will endure, but this great wrong, I will not do. "Where I cannot obey actively, there I am willing to lie down and to suffer what they shall do unto me"; such was the exclamation of him to whom we are indebted for the Pilgrim's Progress while in prison for disobedience to an earthly statute. Better suffer injustice than do it. Better victim than instrument of wrong. Better even the poor slave returned to bondage than the wretched Commissioner.

There is, sir, an incident of history which suggests a parallel, and affords a lesson of fidelity. Under the triumphant exertions of that Apostolic Jesuit, St. Francis Xavier, large numbers of Japanese, amounting to as many as two hundred thousand,--among them princes, generals, and the flower of the nobility,--were converted to Christianity. Afterwards, amidst the frenzy of civil war, religious persecution arose, and the penalty of death was denounced against all who refused to trample upon the effigy of the Redeemer. This was the Pagan law of a Pagan land. But the delighted historian records, that from the multitude of converts scarcely one was guilty of this apostasy. The law of man was set at naught. Imprisonment, torture, death, were preferred. Thus did this people refuse to trample on the painted image. Sir, multitudes among us will not be less steadfast in refusing to trample on the living image of their Redeemer.

Finally, Sir, for the sake of peace and tranquility, cease to shock the Public Conscience; for the sake of the Constitution, cease to exercise a power nowhere granted, and which violates inviolable rights expressly secured. Leave this question where it was left by our fathers, at the formation of our National Government,--in the absolute control of the States, the appointed guardians of Personal Liberty. Repeal this enactment. Let its terrors no longer rage through the land. Mindful of the lowly whom it pursues, mindful of the good men perplexed by its requirements, in the name of Charity, in the name of the Constitution, repeal this enactment, totally and without delay. There is the example of Washington, follow it. There also are words of Oriental piety, most touching and full of warning, which speak to all mankind, and now especially to us: "Beware of the groans of wounded souls, since the inward sore will at length break out. Oppress not to the utmost a single heart; for a solitary sigh has power to overturn a whole world."

End of Project Gutenberg's American Eloquence, Volume II. (of 4), by Various