Chapter II (2)

"The lord's remedy for a _fugitive villein_ was either by seizure
or by suing out a writ of _Nativo Habendo_, or Neifty, as it is
sometimes called. If the lord seized, the villein's most effectual
mode of recovering liberty was by the writ of _Homine Replegiando_,
which had great advantage over the writ of _Habeas Corpus_. In
the _Habeas Corpus_ the return cannot be contested by pleading
against the truth of it, and consequently on a _Habeas Corpus the
question of liberty cannot go to a jury for trial_.... But in the
_Homine Replegiando_ it was otherwise.... The plaintiff, ... on the
defendant's pleading the villenage, had the same opportunity of
contesting it as when impleaded by the lord in a _Nativo Habendo_.
If the lord sued out a _Nativo Habendo_, and the villenage was
denied, in which case the sheriff could not seize the villein, _the
lord was then to enter his plaint in the county court_; and as the
sheriff was not allowed to try the question of villenage in his
court, the lord could not have any benefit from the writ, without
removing the cause by the writ of _Pone_ into the King's Bench or
Common Pleas."[177]

[176] Argument in Sommersett's Case: Howell's State Trials, XX. 42.

[177] Ibid., 38, 39, note.

The authority of Mr. Hargrave is sufficient. But I mean to place this matter beyond all cavil. From the Digest of Lord Chief Baron Comyns, which at the adoption of the Constitution was among the classics of our jurisprudence, I derive another description of the remedy.

"If the lord claims an inheritance in his villein, _who flies from
his lord against his will_, and lives in a place out of the manor
to which he is regardant, the lord shall have a _Nativo Habendo_.
And upon such writ, directed to the sheriff, he may seize him who
does not deny himself to be a villein. But if the defendant say
that he is a freeman, the sheriff cannot seize him, but the lord
must remove the writ by _Pone_ before the Justices in Eyre, or in
C.B., _where he must count upon it_."[178]

An early writer of peculiar authority, Fitzherbert, in his _Natura Brevium_, on the writs of the Common Law, thus describes these proceedings.

[178] Comyns's Digest: Remedy for a Villein, (C. 1,) _Nativo
Habendo_.

"The writ _de Nativo Habendo_ lieth for the lord who claimeth
inheritance in any villein, _when his villein is run from him_, and
is remaining within any place out of the manor unto which he is
regardant, or when he departeth from his lord against the lord's
will: and the writ shall be directed unto the sheriff.... And the
sheriff may seize the villein, and deliver him unto his lord, if
the villein confess unto the sheriff that he is his villein; but if
the villein say to the sheriff that he is frank, then it seemeth
that the sheriff ought not to seize him: as it is in a replevin,
if the defendant claim property, the sheriff cannot replevy
the cattle, but the party ought to sue a writ _de Proprietate
Probanda_: and so if the villein say that he is a freeman, &c.,
then the sheriff ought not to seize him, but then the lord ought
to sue a _Pone_ to remove the plea before the Justices in the
Common Pleas, or before the Justices in Eyre. But if the villein
purchase a writ _de Libertate Probanda_ before the lord hath sued
the _Pone_ to remove the plea before the Justices, then that writ
of _Libertate Probanda_ is a _Supersedeas_ unto the lord, that he
proceed not upon the writ of _Nativo Habendo_ till the Eyre of
the Justices, or till the day of the plea be adjourned before the
Justices, and that the lord ought not to seize the villein in the
mean time."[179]

[179] Fitzherbert, Natura Brevium, Vol. I. p. 77.

These authorities are not merely applicable to the general question of freedom, but they distinctly contemplate the case of _fugitive_ slaves, and the "suits at Common Law" for their rendition. Blackstone speaks of villeins who "ran away"; Hargrave of "fugitive villeins"; Comyns of a villein "who flies from his lord against his will"; and Fitzherbert of the proceedings of the lord "when his villein is run from him." The forms, writs, counts, pleadings, and judgments in these suits are all preserved among the precedents of the Common Law. The writs are known as original writs, which the party on either side, at the proper stage, could sue out of right without showing cause. The writ of _Libertate Probanda_ for a fugitive slave was in this form:--

"LIBERTATE PROBANDA.

"The king to the sheriff, &c. A. and B. her sister have showed unto
us, that, whereas they are free women, and ready to prove their
liberty, F., claiming them to be his neifs unjustly, vexes them;
and therefore we command you, that, if the aforesaid A. and B.
shall make you secure touching the proving of their liberty, then
put that plea before our justices at the first assizes, when they
shall come into those parts, because proof of this kind belongeth
not to you to take; and in the mean time cause the said A. and B.
to have peace thereupon, and tell the aforesaid F. that he may
be there, if he will, to prosecute his plea thereof against the
aforesaid A. and B. And have there this writ. Witness, &c."[180]

[180] Fitzherbert, Vol. I. p. 77.

By these various proceedings, all ending in Trial by Jury, Personal Liberty was guarded, even in the unrefined and barbarous days of the early Common Law. Any person claimed as a fugitive slave might invoke this Trial as a sacred right. Whether the master proceeded by seizure, as he might, or by legal process, Trial by Jury, in a suit at Common Law, before one of the high courts of the realm, was equally secured. In the case of seizure, the fugitive, reversing the proceedings, might institute process against his master, and appeal to a Court and Jury. In the case of process by the master, the watchful law secured to the fugitive the same protection. By no urgency of force, by no device of process, could any person claimed as a slave be defrauded of this Trial. Such was the Common Law. If its early boast, that there could be no slaves in England, fails to be true, this at least may be its pride,--that, according to its indisputable principles, the liberty of every man was placed under the guard of Trial by Jury.

These things may seem new to us; but they must have been known to the members of the Convention, particularly to those from South Carolina, through whose influence the provision on this subject was adopted. Charles Cotesworth Pinckney and Mr. Rutledge had studied law at the Temple, one of the English Inns of Court. It would be a discredit to them, and also to other learned lawyers, members of the Convention, to suppose that they were not conversant with the principles and precedents directly applicable to this subject, all of which are set down in works of acknowledged authority, and at that time of constant professional study. Only a short time before, in the case of Sommersett, they had been most elaborately examined in Westminster Hall. In a forensic effort of unsurpassed learning and elevation, which of itself vindicates for its author his great juridical name, Mr. Hargrave had fully made them known to such as were little acquainted with the more ancient sources. But even if we could suppose them unknown to the lawyers of the Convention, they are none the less applicable in determining the true meaning of the Constitution.

The conclusion is explicit. Clearly and indisputably, in England, the country of the Common Law, a claim for a fugitive slave was "a suit at Common Law," recognized "among its old and settled proceedings." To question this, in the face of authentic principles and precedents, is preposterous. As well might it be questioned, that a writ of replevin for a horse, or a writ of right for land, was "a suit at Common Law." It follows, then, that this _technical term_ of the Constitution, read in the illumination of the Common Law, naturally and necessarily embraces proceedings for the recovery of fugitive slaves, _if any such be instituted or allowed under the Constitution_. And thus, by the letter of the Constitution, in harmony with the requirements of the Common Law, all such persons, when claimed by their masters, are entitled to Trial by Jury.

* * * * *

Such, Sir, is the argument, briefly uttered, against the constitutionality of the Slave Act. Much more I might say on this matter; much more on the two chief grounds of objection which I have occupied. But I am admonished to hasten on.

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.

Of all the States, Virginia--whose shield bears the image of Liberty trampling upon chains--first declared herself by solemn resolutions, which the timid thought "treasonable,"[181] but which soon found response. New York followed. Massachusetts came next, speaking by the pen of the inflexible Samuel Adams. In an Address from the Legislature to the Governor, the true grounds of opposition to the Stamp Act, coincident with the two radical objections to the Slave Act, are clearly set forth.

[181] Hutchinson, History of Massachusetts, Vol. III. p. 119.

"You are pleased to say that the Stamp Act is an Act of Parliament,
and as such ought to be observed. This House, Sir, has too
great a reverence for the Supreme Legislature of the nation _to
question its just authority_. It by no means appertains to us to
presume to adjust the boundaries of the _power_ of Parliament;
_but boundaries there undoubtedly are_. We hope we may without
offence put your Excellency in mind of that most grievous sentence
of excommunication solemnly denounced by the Church in the name
of the Sacred Trinity, in the presence of King Henry the Third
and the estates of the realm, _against all those who should make
statutes, OR OBSERVE THEM, BEING MADE, contrary to the liberties
of Magna Charta_.... The Charter of this Province invests the
General Assembly with the _power_ of making laws for its internal
government and taxation; and this Charter has never yet been
forfeited. The Parliament has a right to make all laws within the
limits of their own constitution.... The people complain that the
Act invests a single judge of the Admiralty with a power to try and
determine their property, in controversies arising from internal
concerns, _without a jury_, contrary to the very expression of
Magna Charta, that no freeman shall be amerced but by the oath of
good and lawful men of the vicinage.... We deeply regret it that
the Parliament has seen fit to pass such an act as the Stamp Act;
we flatter ourselves that the hardships of it will shortly appear
to them in such a point of light as shall induce them, in their
wisdom, to repeal it; _in the mean time we must beg your Excellency
to excuse us from doing anything to assist in the execution of
it_."[182]

[182] Journal of the House of Representatives of Massachusetts Bay,
October 24, 1765, pp. 131-138. Hutchinson, Vol. III., Appendix, pp.
472-474.

Thus in those days spoke Massachusetts. The parallel still proceeds. The unconstitutional Stamp Act was welcomed in the Colonies by the Tories of that day precisely as the unconstitutional Slave Act is welcomed by large and imperious numbers among us. Hutchinson, at that time Lieutenant-Governor and Chief-Justice of Massachusetts, wrote to Ministers in England: "The Stamp Act is received among us with as much decency as could be expected. It leaves no room for evasion, and will execute itself."[183] Like the Judges of our day, in charges to grand juries, he resolutely vindicated the Act, and admonished "the jurors and people" to obey.[184] Like Governors of our day, Bernard, in his speech to the Legislature of Massachusetts, demanded unreasoning submission. "I shall not," says this British Governor, "enter into any disquisition of the policy of the Act.... I have only to say that it is an Act of the Parliament of Great Britain; ... and I trust that the supremacy of that Parliament over all the members of their wide and diffused empire never was and never will be denied within these walls."[185] The military were against the people. A British major of artillery at New York exclaimed, in tones not unlike those now heard, "I will cram the stamps down their throats with the end of my sword!"[186] The elaborate answer of Massachusetts, a paper of historic grandeur, drawn by Samuel Adams, was pronounced "the ravings of a parcel of wild enthusiasts."[187]

[183] Bancroft, History of the United States, Vol. V. p. 272.

[184] Ibid.

[185] Journal of the House of Representatives, September 25, 1765,
p. 119. Hutchinson, Vol. III., Appendix, pp. 467, 468.

[186] Bancroft, History of the United States, Vol. V. p. 332.

[187] Ibid., 349.

Thus in those days spoke the partisans of the Stamp Act. But their weakness was soon manifest. In the face of an awakened community, where discussion has free scope, no men, though supported by office and wealth, can long maintain injustice. Earth, water, Nature they may subdue; but Truth they cannot subdue. Subtle and mighty against all efforts and devices, it fills every region of light with its majestic presence. The Stamp Act was discussed and understood. Its violation of constitutional rights was exposed. By resolutions of legislatures and of town meetings, by speeches and writings, by public assemblies and processions, the country was rallied in peaceful phalanx _against the execution of the Act_. To this great object, within the bounds of Law and the Constitution, were bent all the patriot energies of the land.

And here Boston took the lead. Her records at this time are full of proud memorials. In formal instructions to her representatives, adopted unanimously in Town Meeting at Faneuil Hall, "having been read several times, and put paragraph by paragraph," the following rule of conduct was prescribed.

"We therefore think it our indispensable duty, in justice to
ourselves and posterity, as it is our undoubted privilege, in the
most open and unreserved, but decent and respectful terms, to
declare our greatest dissatisfaction with this law: _and we think
it incumbent upon you by no means to join in any public measures
for countenancing and assisting in the execution of the same_,
but to use your best endeavors in the General Assembly to have
the inherent, unalienable rights of the people of this Province
asserted and vindicated, and left upon the public records, that
posterity may never have reason to charge the present times with
the guilt of tamely giving them away."[188]

[188] Town Records, MS., September 18; Boston Gazette, September
23, 1765.

Virginia responded to Boston. Many of her justices of the peace surrendered their commissions, rather than aid in the enforcement of the law, or be "instrumental in the destruction of their country's most essential rights and liberties."[189]

[189] Pennsylvania Gazette, October 31, 1765. Annual Register for
1765, p. [53.]

As the opposition deepened, there was a natural tendency to outbreak and violence. But this was carefully restrained. On one occasion, in Boston, it showed itself in the lawlessness of a mob. But the town, at a public meeting in Faneuil Hall, called without delay on the motion of the opponents of the Stamp Act, with James Otis as chairman, condemned the outrage. Eager in hostility to the execution of the Act, Boston cherished municipal order, and constantly discountenanced all tumult, violence, and illegal proceedings. Her equal devotion to these two objects drew the praises and congratulations of other towns. In reply, March 24, 1766, to an Address from the inhabitants of Plymouth, her own consciousness of duty done is thus expressed.

"If the inhabitants of this metropolis have taken _the
warrantable and legal measures to prevent that misfortune, of
all_ _others the most to be dreaded, the execution of the Stamp
Act_, and, as a necessary means of preventing it, have made
any spirited applications for opening the custom-houses and
courts of justice,--_if at the same time they have bore their
testimony against outrageous tumults and illegal proceedings_,
and given any example of the love of peace and good order,
next to the consciousness of having done their duty is the
satisfaction of meeting with the approbation of any of their
fellow-countrymen."[190]

[190] Town Records, MS., March 24: Boston Gazette, March 31, 1766.

Learn now from the Diary of John Adams the results of this system.

"The year 1765 has been the most remarkable year of my life.
That enormous engine, fabricated by the British Parliament, for
battering down all the rights and liberties of America,--I mean
the Stamp Act,--has raised and spread through the whole continent
a spirit that will be recorded to our honor with all future
generations. In every Colony, from Georgia to New Hampshire
inclusively, the stamp distributors and inspectors have been
compelled by the unconquerable rage of the people to renounce
their offices. Such and so universal has been the resentment of
the people, that every man who has dared to speak in favor of the
stamps, or to soften the detestation in which they are held, how
great soever his abilities and virtues had been esteemed before, or
whatever his fortune, connections, and influence had been, has been
seen to sink into universal contempt and ignominy."[191]

[191] Diary, December 18, 1765: Works, Vol. II. p. 154.

The Stamp Act became a dead letter. At the meeting of Parliament numerous petitions were presented, calling for its instant repeal. Franklin, at that time in England, while giving his famous testimony before the House of Commons, was asked whether he thought the people of America would submit to this Act, if "moderated." His brief, emphatic response was: "No, never, unless compelled by force of arms."[192] Chatham, weak with disease, yet mighty in eloquence, exclaimed in ever memorable words: "The gentleman tells us, America is obstinate, America is almost in open rebellion. _Sir, I rejoice, that America has resisted._ Three millions of people, so dead to all the feelings of liberty as voluntarily to submit to be slaves, would have been fit instruments to make slaves of the rest.... The Americans have been wronged; they have been driven to madness by injustice.... Upon the whole, I will beg leave to tell the House what is really my opinion. _It is, that the Stamp Act be repealed, absolutely, totally, and immediately._"[193] It was repealed. Within less than a year from its original passage, denounced and discredited, it was driven from the Statute Book. In the charnel-house of history, with unclean things of the Past, it now rots. Thither the Slave Act must follow.

[192] Hansard, Parliamentary History, January 28, 1766, Vol. XVI.
col. 140.

[193] Ibid., January 14, 1766, Vol. XVI. 104-108.

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 earns, 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 without which any law must become a dead letter_.

The Senator from South Carolina (Mr. BUTLER) was right, when, at the beginning of the session, he pointedly said that a law which can be enforced only by the bayonet is no law.[194] Sir, it is idle to suppose that an Act of Congress becomes effective merely by compliance with the forms of legislation. Something more is necessary. The Act must be in harmony with the prevailing public sentiment of the community upon which it bears. I do not mean that the cordial support of every man or of every small locality is necessary; but I do mean that the public feelings, the public convictions, the public conscience, must not be touched, wounded, lacerated, by every endeavor to enforce it. With all these it must be so far in harmony, that, like the laws by which property, liberty, and life are guarded, it may be administered by the ordinary process of courts, without jeoparding the public peace or shocking good men. If this be true as a general rule, if the public support and sympathy be essential to the life of all law, this is especially the case in an enactment which concerns the important and sensitive rights of Personal Liberty. In conformity with this principle, the Legislature of Massachusetts, in 1850, by formal resolution, declared with singular unanimity:--

"We hold it to be the duty of Congress to pass such laws only in
regard thereto as will be sustained by the public sentiment of the
Free States, where such laws are to be enforced."[195]

[194] Speech on the Compromise Measures, December 16, 1851:
Congressional Globe, Vol. XXIV, p. 93.

[195] Resolves concerning Slavery, May 1, 1850: Acts and Resolves,
1849-51, p. 519.

The duty of consulting these sentiments was recognized by Washington. While President of the United States, towards the close of his administration, he sought to recover a slave who had fled to New Hampshire. His autograph letter to Mr. Whipple, the Collector at Portsmouth, dated at Philadelphia, 28th November, 1796, which I now hold in my hand, and which has never before seen the light, after describing the fugitive, and particularly expressing the desire of "her mistress," Mrs. Washington, for her return, employs the following decisive language:--

"I do not mean, however, by this request, that such violent
measures should be used AS WOULD EXCITE A MOB OR RIOT, WHICH MIGHT
BE THE CASE, IF SHE HAS ADHERENTS, OR EVEN UNEASY SENSATIONS IN THE
MINDS OF WELL-DISPOSED CITIZENS. Rather than either of these should
happen, I would forego her services altogether,--and the example,
also, which is of infinite more importance.

"GEORGE WASHINGTON."

Mr. Whipple, in his reply, dated at Portsmouth, December 22, 1796, an autograph copy of which I have, recognizes the rule of Washington.

"I will now, Sir, agreeably to your desire, send her to Alexandria,
_if it be practicable without the consequences which you
except,--that of exciting a riot or a mob, or creating uneasy
sensations in the minds of well-disposed persons_. The first cannot
be calculated beforehand; it will be governed by the popular
opinion of the moment, or the circumstances that may arise in
the transaction. The latter may be sought into and judged of by
conversing with such persons, without discovering the occasion. So
far as I have had opportunity, I perceive that different sentiments
are entertained on this subject."

The fugitive was never returned, but lived in freedom to a good old age, down to a very recent day, a monument of the just forbearance of him whom we aptly call Father of his Country. True, he sought her return. This we must regret, and find its apology. He was at the time a slaveholder. Often expressing himself with various degrees of force against Slavery, and promising his suffrage for its abolition, he did not see this wrong as he saw it at the close of life, in the illumination of another sphere. From this act of Washington, still swayed by the policy of the world, I appeal to Washington writing his will. From Washington on earth I appeal to Washington in heaven. Seek not by his name to justify any such effort. His death is above his life. His last testament cancels his authority as a slaveholder. However he may have appeared before man, he came into the presence of God only as liberator of his slaves. Grateful for this example, I am grateful also, that, while slaveholder, and seeking the return of a fugitive, he has left in permanent record a rule of conduct which, if adopted by his country, will make Slave-Hunting impossible. The chances of riot, or mob, or "even uneasy sensations in the minds of well-disposed citizens," must prevent any such pursuit.[196]

Sir, the existing Slave Act cannot be enforced without violating the precept of Washington. Not merely "uneasy sensations of well-disposed citizens," but rage, tumult, commotion, mob, riot, violence, death, gush from its fatal overflowing fountains:--

"Hoc fonte derivata clades
In patriam populumque fluxit."[197]

[196] The possibility of scandal and commotion was recognized by
the great doctor of the Church, St. Thomas Aquinas, as proper to
determine human conduct. According to him, an unjust law is not
binding in conscience, _nisi forte propter vitandum scandalum vel
turbationem_.--_Summa Theologica_, 1ma 2dæ, Quæst. XCVI. art. 4.

[197] Hor., Carm. III. vi. 19, 20.

Not a case occurs without endangering the public peace. Workmen are brutally dragged from employments to which they are wedded by years of successful labor; husbands are ravished from wives, and parents from children. Everywhere there is disturbance,--at Detroit, Buffalo, Harrisburg, Syracuse, Philadelphia, New York, Boston. At Buffalo the fugitive was cruelly knocked by a log of wood against a red-hot stove, and his mock trial commenced while the blood still oozed from his wounded head. At Syracuse he was rescued by a sudden mob; so also at Boston. At Harrisburg the fugitive was shot; at Christiana the Slave-Hunter was shot. At New York unprecedented excitement, always with uncertain consequences, has attended every case. Again at Boston a fugitive, according to received report, was first seized under base pretext that he was criminal; arrested only after deadly struggle; guarded by officers acting in violation of the State laws; tried in a court-house girdled by chains, contrary to the Common Law; finally surrendered to Slavery by trampling on the criminal process of the State, under an escort in violation again of the laws of the State, while the pulpits trembled, and the whole people, not merely "uneasy," but swelling with ill-suppressed indignation, though, for the sake of order and tranquillity, without violence, witnessed the shameful catastrophe.

Oppression by an individual is detestable; but oppression by law is worse. Hard and inscrutable, when the law, to which the citizen naturally looks for protection, becomes itself a standing peril. As the sword takes the place of the shield, despair settles down like a cloud. Montesquieu painted this most cruel tyranny, when he said that the man is drowned by the very plank on which he thought to escape.[198] And Moses exposes a kindred harshness, when, in commandment to the Israelites, he mysteriously enjoins; "Thou shalt not seethe a kid in its mother's milk"[199] Alas! every sacrifice under the form of law is only a repetition of this forbidden offence. The victim is the innocent kid, and the law is its mother's milk.

[198] Grimm, Correspondance, Février, 1786, Tom. XIV. pp. 453, 454.

[199] Deuteronomy, xiv. 21.

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 re-vie with each other. Now by indecent speed, now by harshness of manner, now by denial of evidence, now by crippling the defence, 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, bringing tears of sympathy to the eyes, and those other noble 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.[200] 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.

[200] This was the number at the delivery of this speech. But the
circulation has gone on indefinitely.

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--_nachjagender Herr_, as the Germans called him--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.

I have said, Sir, that this sentiment is just. And is it not? Every escape from Slavery necessarily and instinctively awakens the regard of all who love Freedom. The endeavor, though unsuccessful, reveals courage, manhood, character. No story is read with greater interest than that of our own Lafayette, when, aided by a gallant South Carolinian, in defiance of despotic Austrian ordinances, kindred to our Slave Act, he strove to escape from the bondage of Olmütz. Literature pauses with exultation over the struggles of Cervantes, the great Spaniard, while a slave in Algiers, to regain the liberty for which he declared to his companions "we ought to risk life itself, Slavery being the greatest evil that can fall to the lot of man."[201] Science, in all her manifold triumphs, throbs with pride and delight, that Arago, astronomer and philosopher,--devoted republican also,--was rescued from barbarous Slavery to become one of her greatest sons. Religion rejoices serenely, with joy unspeakable, in the final escape of Vincent de Paul. In the public square of Tunis, exposed to the inspection of traffickers in human flesh, this illustrious Frenchman was subjected to every vileness of treatment, compelled, like a horse, to open his mouth, to show his teeth, to trot, to run, to exhibit his strength in lifting burdens, and then, like a horse, legally sold in market overt. Passing from master to master, after protracted servitude, he achieved his freedom, and, regaining France, commenced that resplendent career of charity by which he is placed among the great names of Christendom. Princes and orators have lavished panegyric upon this fugitive slave, and, in homage to his extraordinary virtues, the Catholic Church has introduced him into the company of Saints.

[201] Navarrete, Vida de Cervantes, p. 38.

Less by genius or eminent service than by suffering are the fugitive slaves of our country now commended. For them every sentiment of humanity is aroused.

"Who could refrain,
That had a heart to love, and in that heart
Courage to make his love known?"

Rude and ignorant they may be; but in their very efforts for Freedom they claim kindred with all that is noble in the Past. Romance has no stories of more thrilling interest. Classical antiquity has preserved no examples of adventure and trial more worthy of renown. They are among the heroes of our age. Among them are those whose names will be treasured in the annals of their race. By eloquent voice they have done much to make their wrongs known, and to secure the respect of the world. History will soon lend her avenging pen. Proscribed by you during life, they will proscribe you through all time. Sir, already judgment is beginning. A righteous public sentiment palsies your enactment.

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 unconstitutionally 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.

* * * * *

Sir, thus far I have arrayed the objections to this Act, and the false interpretations out of which it has sprung. But I am asked what I offer as a substitute for the legislation which I denounce. Freely I answer. It is to be found in a correct appreciation of the provision of the Constitution under which this discussion occurs. Look at it in the double light of Reason and of Freedom, and we cannot mistake the exact extent of its requirements. Here is the provision:--

"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."

From the very language employed, it is obvious that this is merely a _compact_ between the States, with a _prohibition_ on the States, _conferring no power on the Nation_. In its natural signification it is a compact. According to examples of other countries, and principles of jurisprudence, it is a compact. Arrangements for extradition of fugitives have been customarily compacts. Except under express obligations of treaty, no nation is bound to surrender fugitives. Especially has this been the case with fugitives for Freedom. In mediæval Europe cities refused to recognize this obligation in favor of persons even under the same National Government. In 1531, while the Netherlands and Spain were united under Charles the Fifth, the Supreme Council of Mechlin rejected an application from Spain for the surrender of a fugitive slave. By express compact alone could this be secured. But the provision of the Constitution was borrowed from the Ordinance of the Northwestern Territory,[202] which is expressly declared to be a compact; and this Ordinance, finally drawn by Nathan Dane, was itself borrowed, in distinctive feature, from the early institutions of Massachusetts, among which, as far back as 1643, was a compact of like nature with other New England States.[203] Thus this provision is a compact in language, in nature, in its whole history; as we have already seen, it is a compact according to the intentions of our fathers and the genius of our institutions.

[202] "ART. VI. There shall be neither slavery nor involuntary
servitude in the said Territory, otherwise than in the punishment
of crimes whereof the party shall have been duly convicted:
Provided always, that any person escaping into the same, from
whom labor or service is lawfully claimed in any one of the
original States, such fugitive may be lawfully reclaimed, and
conveyed to the person claiming his or her labor or service as
aforesaid."--_Ordinance for the Government of the Territory
Northwest of the River Ohio_, July 13, 1787: Journals of Congress,
Vol. XII. pp. 92, 93.

[203] "8.... It is also agreed, that if any servant run away from
his master into any of the confederate jurisdictions, that in such
case (upon certificate from one magistrate in the jurisdiction
out of which the said servant fled, or upon other due proof) the
said servant shall be either delivered to his master or any other
that pursues and brings such certificate and proof."--_Articles
of Confederation between the Plantations_, etc., May 29, 1643:
Hubbard's History of New England, p. 472.

As a compact, its execution depends absolutely upon the States, without any intervention of the Nation. _Each State, in the exercise of its own judgment, will determine for itself the precise extent of obligation assumed._ As a compact in derogation of Freedom, it must be construed strictly in every respect, leaning always in favor of Freedom, and shunning any meaning, not clearly necessary, which takes away important personal rights; mindful that the parties to whom it is applicable are regarded as "persons," of course with all the rights of "persons," under the Constitution; especially mindful of the vigorous maxim of the Common Law, early announced by Fortescue, that "he is to be adjudged impious and cruel who does not favor Liberty"[204]; and also completely adopting, in letter and spirit, as becomes a just people, the rule of the great Commentator, that "the law is always ready to catch at anything in favor of Liberty."[205] With this key the true interpretation is natural and easy.

[204] De Laudibus Legum Angliæ, Cap. XLII.; Coke upon Littleton,
124_b_. Granville Sharp, in the remarkable testimony already cited
(_ante_, p. 108), quotes Fortescue thus: "For in behalf of Liberty
human nature always implores: because _Slavery is introduced by
man_, and _for vice_; but _Liberty_ is implanted _by God_ in the
very nature of _man_: wherefore, when stolen by man, it always
earnestly longs to return; as does everything which is deprived of
_natural liberty_. For which reason the _man_ who does _not favor
Liberty_ is to be adjudged _impious_ and _cruel_. The laws of
England acknowledging these principles give favor to _Liberty in
every case_." After this extract from Fortescue, we are reminded
that "Slavery is properly declared by one of our oldest English
authorities in law, Fleta, to be _contrary to Nature_ (Fleta, 2d
edit. p. 1), which expression of Fleta is really a maxim of the
Civil or Roman Law"; and then Sharp predicts the time when "our
deluded statesmen, lawyers, commercial politicians, and planters
shall be compelled to understand that a more forcible expression of
illegality and iniquity could not have been used than that by which
Slavery is defined in the Roman code, as well as by our English
Fleta, _i. e._ that it is _contra naturam_, against Nature; for,
consequently, it must be utterly illegal, a crime which by the
first foundation of English law is justly deemed both _impious_ and
_cruel_", and he adds, "The severity of these expressions cannot be
restrained without injustice to the high authorities on which this
argument is founded." (Letter to the Maryland Society for Promoting
the Abolition of Slavery, etc., pp. 6-8.) This testimony of the
great English Abolitionist is reinforced, especially with regard
to fugitive slaves, when we consider its publication in 1793 by
the Abolition Society of Maryland, with the prefatory observation,
that, "in the case of slaves escaping from their masters, the
friends of universal liberty are often embarrassed in their conduct
by a conflict between their principles and _the obligations imposed
by unwise and perhaps unconstitutional laws_."

[205] Blackstone, Commentaries, Vol. II. p. 94.

Briefly, the States are prohibited from any "law or regulation" by which any "person" escaped from "service or labor" may be discharged therefrom, and on establishment of the claim to such "service or labor" he is to be "delivered up." But the mode by which the claim shall be tried and determined is not specified. All this is obviously within the control of each State. It may be by virtue of express legislation; in which event, any Legislature, justly careful of Personal Liberty, would surround the fugitive with every shield of Law and Constitution. But here a fact pregnant with Freedom must be studiously observed. The name _Slave_--that litany of wrong and woe--does not appear in the clause. Here is no unambiguous phrase, incapable of a double sense,--no "positive" language, applicable only to slaves, and excluding all other classes,--no word of that absolute certainty in every particular which forbids any interpretation except that of Slavery, and makes it impossible "to catch at anything in favor of Liberty." Nothing of this kind is here. But, passing from this,--"impiously and cruelly" renouncing for the moment all leanings for Freedom,--refusing "to catch at anything in favor of Liberty,"--abandoning the cherished idea of the Fathers, that it was "_wrong_ to admit in the Constitution the idea that there could be property in men,"--and, in the face of these commanding principles, assuming two things,--first, that, in the evasive language of this clause, the Convention, whatever may have been the aim of individual members, really intended fugitive slaves, which is sometimes questioned, and, secondly, that, if they so intended, the language employed can be judicially regarded as justly applicable to fugitive slaves, which is often and earnestly denied,--then the whole proceeding, without any express legislation, may be left to ancient and authentic forms of the Common Law, familiar to the framers of the Constitution, and ample for the occasion. If the fugitive be seized without process, he will be entitled at once to his writ _de Homine Replegiando_, while the master, resorting to process, may find his remedy in the writ _de Nativo Habendo_, each requiring trial by jury. If, from ignorance or lack of employment, these processes have slumbered in our country, still they belong to the great arsenal of the Common Law, and continue, like other ancient writs, _tanquam gladius in vagina_, ready to be employed at the first necessity. They belong to the safeguards of the citizen. But in any event, and in either alternative, the proceeding would be by "suit at Common Law," with Trial by Jury; and it would be the solemn duty of the court, according to all the forms and proper delays of the Common Law, to try the case on the evidence, strictly to apply all protecting rules of evidence, and especially to require stringent proof, by competent witnesses under cross-examination, that the person claimed was _held_ to service, that his service was _due_ to the claimant, that he had _escaped_ from the State where such service was due, and also proof of the _laws_ of the State under which he was held. _Still further, to the Courts of each State must belong the determination of the question, to what class of persons, according to just rules of interpretation, the phrase "person held to service or labor" is strictly applicable._

Such is this much debated provision. The Slave States, at the formation of the Constitution, did not propose, as in cases of Naturalization and Bankruptcy, to empower the National Government _to establish an uniform rule_ for the rendition of fugitives from service, _throughout the United States_; they did not ask the National Government to charge itself in any way with this service; they did not venture to offend the country, and particularly the Northern States, by any such assertion of hateful pretension. They were content, under the sanctions of compact, in leaving it to the public sentiment of the States. There, I insist, it must remain.

* * * * *

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.

According to St. Augustine, an unjust law does not appear to be a law: _Lex esse non videtur quæ justa non fuerit._[206] And the great Fathers of the Church, while adopting these words, declare openly that unjust laws are not binding. Sometimes they are called "iniquity," and not law; sometimes "violences," and not laws.[207] And here again the conscience of each person is final arbiter. But this lofty principle is not confined to the Church. Earlier than the Church, a sublime Heathen announced the same truth. After assailing indignantly that completest folly which would find the rule of justice in human institutions and laws, and then asking if the laws of tyrants are just simply because laws, Cicero declares, that, if edicts of popular assemblies, decrees of princes, and decisions of judges constitute right, then there may be a right to rob, a right to commit adultery, a right to set up forged wills; whereas he does not hesitate to say that pernicious and pestilent statutes can be no more entitled to the name of law than robber codes; and he concludes, in words as strong as those of St. Augustine, that an unjust law is null.[208] A master of philosophy in early Europe, of intellectual renown, the eloquent Abelard, in Latin verses addressed to his son, clearly expresses the universal injunction:--

"Jussa potestatis terrenæ discutienda:
Coelestis tibi mox perficienda scias.
Si quis divinis jubeat contraria jussis,
Te contra Dominum pactio nulla trahat."[209]

[206] De Libero Arbitrio, Lib. I. c. 5. See Thomas Aquinas,
Summa Theologica, 1ma 2dæ, Quæst. XCVI. art. 4; also, Balmez,
Protestantism and Catholicity compared in their Effects on the
Civilization of Europe, Ch. 53.

[207] _Magis iniquitas quam lex, magis violentiæ quam leges._
Thomas Aquinas, Summa Theol., 1ma 2dæ, Quæst. XC. art. 1, XCVI.
art. 4. The supreme duty to God is recognized in a text of St.
Basil, _Obediendum est in quibus mandatum Dei non impeditur_,
quoted by Filmer, Patriarcha, Ch. III. § 3.