Chapter II (1)

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,"[158] 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.

[158] Madison's Debates, July 12, 1787.

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."[159] 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_."[160] 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.

[159] Madison's Debates, August 21 and 22, 1787.

[160] The Genuine Information delivered to the Legislature of Maryland,
etc. p. 36: Appended to Vol. IV. Elliot's Debates.

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 desire, 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 fugitive 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 June, a series of eleven propositions by Mr. Patterson, 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.[161] 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.[162]

[161] "Agreed to, _nem. con._," are Madison's words.

[162] "Agreed to, _nem. con._," are again Madison's words.

Here, palpably, was no labor of compromise, no adjustment of conflicting interests,--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,"[163] 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.

[163] No. 42.

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 another," 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.[164] 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.

[164] Annals of Congress, House and Senate Journals, 15th Cong.
1st Sess.

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"?[165]

[165] Matt. v. 19.

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. Here are the words.

"One prevailing opinion, which has created great prejudice against
this judgment, is, that it denies the right of a person claimed as
a fugitive from service or labor to a trial by jury. This mistake
arises from supposing the case to involve the general question as
to the constitutionality of the Act of 1793. But in fact no such
question was in the case; and the argument, that the Act of 1793
was unconstitutional, because it did not provide for a trial by
jury according to the requisitions of the sixth article in the
Amendments to the Constitution, having been suggested to my father
on his return from Washington, he replied, that this question was
not argued by counsel nor considered by the Court, and that he
should still consider it an open one."[166]

[166] Life and Letters of Joseph Story, edited by his Son, Vol. II.
p. 396.

But whatever may be the influence of this judgment as a rule to the judiciary, it cannot arrest our duty as legislators. And here I adopt with entire assent the language of President Jackson, in his memorable Veto, in 1832, of the Bank of the United States. To his course was opposed the authority of the Supreme Court, and this is his reply.

"If the opinion of the Supreme Court cover the whole ground of
this Act, it ought not to control the coördinate authorities of
this Government. The Congress, the Executive, and the Court must
each for itself be guided by its own opinion of the Constitution.
_Each public officer who takes an oath to support the Constitution
swears that he will support it_ _as he understands it, and not
as it is understood by others._ It is as much the duty of the
House of Representatives, of the Senate, and of the President,
to decide upon the constitutionality of any bill or resolution
which may be presented to them for passage or approval, as it is
of the Supreme Judges, when it may be brought before them for
judicial decision.... The authority of the Supreme Court must not,
therefore, be permitted to control the Congress or the Executive,
when acting in their legislative capacities, but to have only such
influence as the force of their reasoning may deserve."[167]

[167] Senate Journal, 22d Cong. 1st Sess., pp. 438, 439.

With these authoritative words I dismiss this topic. The early legislation of Congress and the decisions of the Supreme Court cannot stand in our way. I advance to the argument.

* * * * *

(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.

The whole legislative power of Congress is derived from two distinct sources: first, from the general grant, attached to the long catalogue of powers, "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof"; and, secondly, from special grants in other parts of the Constitution. As the provision in question does not appear in the catalogue of powers, and does not purport to vest any power in the Government of the United States, or in any department or officer thereof, no power to legislate on this subject can be derived from the general grant. Nor can any such power be derived from any special grant in any other part of the Constitution; for none such exists. The conclusion must be, that no power is delegated to Congress over the surrender of fugitives from service.

In all contemporary discussions and comments, the Constitution was constantly justified and recommended on the ground that the powers not given to the Government were withheld. If under its original provisions any doubt on this head could have existed, it was removed, so far as language could remove it, by the Tenth Amendment, which, as we have already seen, expressly declares, that "the powers _not delegated_ to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Here, on the simple text of the Constitution, I might leave this question. But its importance justifies more extended examination, in twofold light: _first_, in the history of the Convention, revealing the unmistakable intention of its members; and, _secondly_, in the true principles of our Political System, by which the powers of the Nation and of the States are respectively guarded.

Look first at the _history of the Convention_. The articles of the old Confederation, adopted by the Continental Congress 15th November, 1777, though containing no reference to fugitives from service, had provisions substantially like those in our present Constitution, touching the privileges of citizens in the several States, the surrender of fugitives from justice, and the credit due to the public records of States. But, since the Confederation had no powers not "expressly delegated," and as no power was delegated to legislate on these matters, they were nothing more than articles of treaty or compact. Afterwards, at the National Convention, these three provisions found place in the first reported draft of a Constitution, and were arranged in the very order which they occupied in the Articles of Confederation. _The clause relating to public records stood last._ Mark this fact.

When this clause, being in form merely a _compact_, came up for consideration in the Convention, various efforts were made to graft upon it a _power_. This was on the very day of the adoption of the clause relating to fugitives from service. Charles Pinckney moved to commit it, with a proposition for a _power_ to establish uniform laws on the subject of bankruptcy and foreign bills of exchange. Mr. Madison was in favor of a _power_ for the execution of judgments in other States. Gouverneur Morris, on the same day, moved to commit a further proposition for a _power_ "to determine the proof and effect of such acts, records, and proceedings." Amidst all these efforts to associate a power with this compact, it is clear that nobody supposed that any such already existed. This narrative places the views of the Convention beyond question.

The compact regarding public records, together with these various propositions, was referred to a committee, on which were Mr. Randolph and Mr. Wilson, with John Rutledge, of South Carolina, as chairman. After several days, they reported the compact, with a _power_ in Congress to prescribe by general laws the manner in which such records shall be proved. A discussion ensued, in which Mr. Randolph complained that the "definition of the powers of the Government was so loose as to give it opportunities of usurping all the State powers. _He was for not going further than the Report, which enables the Legislature to provide for the effect of judgments._"[168] The clause of compact with the power attached was then adopted, and is now part of the Constitution. In presence of this solicitude for the preservation of "State powers," even while considering a proposition for an express power, and also of the distinct statement of Mr. Randolph, that he "was for not going further than the Report," it is evident that the idea could not then have occurred, that a power was coupled with the naked clause of compact on fugitives from service.

[168] Madison's Debates, Sept. 3, 1787.

At a later day the various clauses and articles severally adopted from time to time in Convention were referred to a committee of revision and arrangement, that they might be reduced to form as a connected whole. _Here another change was made._ The clause relating to public records, with the power attached, was taken from its original place at the bottom of the clauses of compact, and promoted to stand first in the article, as a distinct section, while the other clauses of compact concerning citizens, fugitives from justice, and fugitives from service, each and all without any power attached, by a natural association compose but a single section, thus:--

"ARTICLE IV.

"SECTION 1. Full faith and credit shall be given in each State to
the public acts, records, and judicial proceedings of every other
State. _And the Congress may by general laws prescribe the manner
in which such acts, records, and proceedings shall be proved, and
the effect thereof._

"_Section 2._ The citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States.

"A person charged in any State with treason, felony, or other
crime, who shall flee from justice, and be found in another State,
shall, on demand of the Executive authority of the State from
which he fled, be delivered up, to be removed to the State having
jurisdiction of the crime.

"No person held to service or labor in one State, under the laws
thereof, escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor, but
shall be delivered up on claim of the party to whom such service or
labor may be due.

"SECTION 3. New States _may be admitted by the Congress_ into this
Union; but no new State shall be formed or erected within the
jurisdiction of any other State, nor any State be formed by the
junction of two or more States or parts of States, without the
consent of the Legislatures of the States concerned, _as well as of
the Congress_.

"_The Congress shall have power_ to dispose of and make all needful
rules and regulations respecting the territory or other property
belonging to the United States; and nothing in this Constitution
shall be so construed as to prejudice any claims of the United
States, or of any particular State.

"SECTION 4. _The United States shall guaranty_ to every State in
this Union a republican form of Government, and _shall protect_
each of them against invasion, and, on application of the
Legislature, or of the Executive (when the Legislature cannot be
convened), against domestic violence."

Here is the whole article, in its final form. It will be observed that the third section, immediately following the triad section of compacts, contains two specific powers,--one with regard to new States, and the other with regard to the public Territory. These are naturally grouped together, while the fourth section of this same article, which is distinct in character, is placed by itself. In the absence of all specific information, reason alone can determine why this arrangement was made. But the conclusion is obvious, that, in the view of the Committee and of the Convention, each of these sections differs from the others. The first contains a compact with a grant of power. The second contains provisions, all of which are simple compacts, and two of which were confessedly simple compacts in the old Articles of Confederation, from which, unchanged in character, they were borrowed. The third is a twofold grant of power to Congress, without any compact. The fourth is neither power nor compact merely, nor both united, but a solemn injunction upon the National Government to perform an important duty.

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 constituted, 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.

"That the several States composing the United States of America
are not united on the principle of unlimited submission to
their General Government; but that by a compact, under the
style and title of a Constitution for the United States and of
Amendments thereto, they constituted a General Government for
special purposes, _delegated to that Government certain definite
powers_, reserving, each State to itself, the residuary mass
of right to their own self-government; and that _whensoever the
General Government assumes undelegated powers, its acts are
unauthoritative, void, and of no force_."[169]

[169] Kentucky Resolutions of 1798: Jefferson's Writings, Vol. IX.
p. 464. See also Elliot's Debates, Vol. IV., Appendix, p. 380.

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 the 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 freeman--an equal right to be secure _at home_ in the enjoyment of _Freedom_. The same principle of State Eights 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 at 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 from 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."[170] Many united in his opposition, and on the recommendation of the First Congress this additional safeguard was adopted as an amendment.

[170] Madison's Debates, Sept. 15, 1787.

Now, regarding the question as one of Property, or of Personal Liberty, in either alternative the Trial by Jury is secured. For this position authority is ample. In the debate on the Fugitive Slave Bill of 1817-18, a Senator from South Carolina, Mr. Smith, anxious for the asserted right of property, objected, on this very floor, to a reference of the question, under the writ of Habeas Corpus, to a judge without a jury. Speaking solely for Property, these were his words.

"This would give a judge the sole power of deciding _the right of
property the master claims in his slave, instead of trying that
right by a jury, as prescribed by the Constitution_. He would be
judge of matters of law and matters of fact, clothed with all the
powers of a jury as well as the powers of a court. Such a principle
is unknown in your system of jurisprudence. _Your Constitution has
forbid it._ It preserves the right of Trial by Jury in all cases
where the value in controversy exceeds twenty dollars."[171]

[171] Annals of Congress, 15th Cong. 1st Sess., March 6, 1818, col.
232.

But this provision has been repeatedly discussed by the Supreme Court, so that its meaning is not open to doubt. Three conditions are necessary: _first_, the proceeding must be "a suit"; _secondly_, "at Common Law"; and, _thirdly_, "where the value in controversy exceeds twenty dollars." In every such case "the right of Trial by Jury _shall_ be preserved." Judgments of the Supreme Court cover each of these points.

_First._ In the case of _Cohens_ v. _Virginia_ (6 Wheaton, 407), the Court say: "What is a _suit_? We understand it to be the prosecution or pursuit of some _claim_, demand, or request." Of course, then, the "claim" for a fugitive must be a "suit."

_Secondly._ In the case of _Parsons_ v. _Bedford et al._ (3 Peters, 447), while considering this very clause, the Court say: "By _Common Law_ the framers of the Constitution meant ... 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 a just sense, the Amendment may well be construed to embrace all suits which are not of Equity and Admiralty jurisdiction, _whatever may be the peculiar form which they may assume to settle legal rights_." Now, since the claim for a fugitive is not a suit in Equity or Admiralty, but a suit to settle what are called legal rights, it must be a "suit at Common Law."

_Thirdly._ In the case of _Lee_ v. _Lee_ (8 Peters, 44), on a question whether "the value in controversy" was "one thousand dollars or upwards," it was objected, that the appellants, who were petitioners for Freedom, were not of the value of one thousand dollars. But the Court said: "The matter in dispute is the Freedom of the petitioners.... _This is not susceptible of a pecuniary valuation...._ We entertain no doubt of the jurisdiction of the Court."[172] Of course, then, since Liberty is above price, the claim to any fugitive always and necessarily presumes that "the value in controversy exceeds twenty dollars."

[172] The rule of the Roman law was explicit: _Neque humanum fuerit
ob rei pecuniariæ quæstlonem libertati moram fieri._ This is a
text of Ulpian (Digestorum Lib. XL. Tit. V., _De Fideicommissariis
Libertartibus_, 37). In the same spirit is the mediæval verse,--

"Non bene pro toto libertas venditur auro."

By these successive steps, sustained by judgments of the highest tribunal, it appears, as in a diagram, that the right of Trial by Jury is secured to the fugitive from service.

This conclusion needs no additional authority; but it receives curious illustration from the ancient records of the Common Law, so familiar and dear to the framers of the Constitution. It is said by Mr. Burke, in his magnificent speech on Conciliation with America, that "nearly as many of Blackstone's Commentaries were sold in America as in England,"[173] carrying thither the knowledge of those vital principles of Freedom which were the boast of the British Constitution. Thus imbued, the earliest Continental Congress, in 1774, declared, "That the respective Colonies are entitled to the Common Law of England, and more especially to the great and inestimable privilege of being tried by their Peers of the Vicinage, according to the course of that law."[174] Amidst the troubles which heralded the Revolution, the Common Law was claimed as a birthright.

[173] Works (ed. 1801), Vol. III. p. 55.

[174] Declaration of Rights, October 14, 1774: Journals of
Congress, Vol. I. p. 29.

Now, although the Common Law may not be approached as a source of jurisdiction under the National Constitution,--and on this interesting topic I forbear to dwell,--_it is clear that it may be employed to determine the meaning of technical terms in the Constitution borrowed from this law_. This, indeed, is expressly sanctioned by Mr. Madison, in his celebrated Report of 1799, while limiting the extent to which the Common Law may be employed. Thus by this law we learn the nature of _Trial by Jury_, which, though secured, is not described by the Constitution; also what are _Attainder_, _Habeas Corpus_, and _Impeachment_, all technical terms of the Constitution, borrowed from the Common Law. By this law, and its associate Chancery, we learn what are _cases in law and equity_ to which the judicial power of the United States is extended. These instances I adduce merely for example. Also in the same way we learn what are _suits at Common Law_.

Now, on principle and authority, _a claim for the delivery of a fugitive slave is a suit at Common Law_, and is embraced naturally and necessarily in this class of judicial proceedings. This proposition can be placed beyond question. And here, especially, let me ask the attention of all learned in the law. On this point, as on every other in this argument, I challenge inquiry and answer.

History painfully records, that, during the early days of the Common Law, and down even to a late period, a system of Slavery existed in England, known under the name of _villenage_. The slave was generally called a _villein_, though in the original Latin forms of judicial proceedings he was termed _nativus_, implying slavery by birth. The incidents of this condition are minutely described, and also the mutual remedies of master and slave, all of which were regulated by the Common Law. Slaves sometimes then, as now, _escaped_ from their masters. The claim for them, after such _escape_, was prosecuted by a "suit at Common Law," to which, as to every suit at Common Law, Trial by Jury was necessarily attached. Blackstone, in his Commentaries, in words which must have been known to all the lawyers of the Convention, said of _villeins_: "They could not leave their lord without his permission; _but if they ran away_, or were purloined from him, _might be CLAIMED and recovered by ACTION, like beasts or other chattels_."[175] This very word, "action," of itself implies "a suit at Common Law" with Trial by Jury.

[175] Commentaries, Vol. II. p. 93.

From other sources we learn precisely what the _action_ was. That great expounder of the ancient law, Mr. Hargrave, says, "Our Year Books and Books of Entries are full of the forms used in pleading a title to villeins regardant."[176] Though no longer of practical value in England, they remain as monuments of jurisprudence, and as mementos of a barbarous institution. He thus describes the remedy of the master at Common Law.