Chapter XIV: Appendix (8)

It is not doubted that at home in the Slave States the fugitive clause was interpreted as embracing slaves, and that this asserted license was at times mentioned as a reason for the adoption of the Constitution. Even Mr. Madison, who had declared in the National Convention that it was “wrong to admit in the Constitution the idea that there could be property in men,” argued afterwards, in the Virginia Convention, that “this clause was expressly inserted to enable owners of slaves to reclaim them,”[343]--all of which was doubtless true, but the question still occurs as to the constitutional efficacy of the clause. Mr. Iredell, who was not a member of the National Convention, undertook, in the North Carolina Convention, to explain what it had done. Announcing that the clause was intended to include slaves, he added: “The Northern delegates, _owing to their particular scruples_ on the subject of Slavery, did not choose the word _slave_ to be mentioned,”[344]--so that, on the very statement of this expositor, the question naturally arose whether slaves were really included. In the South Carolina Convention, General Pinckney, who in the National Convention first started the idea of “some provision in favor of property in slaves,” boasted that this had been obtained; but he added, in suggestive words, “We have made the best terms for the security of this species of property it was in our power to make. _We would have made better, if we could._”[345] True enough. The Slave-Masters got all they could: if possible, they would have got more. But the question still recurs, whether in this equivocal provision they got anything. In the National Convention they adopted a clause which was only another illustration of “Mr. Facing-both-ways.” At home, in their local conventions, they courageously insisted that it faced only one way. Without dwelling on old sayings about “a villain outwitting himself,” and wit failing when “upon an ill employ,” clearly the wit of the Slave-Masters was “upon an ill employ” when it sought to foist Slavery into the text of the Constitution; and it is easy to see that all who engaged in the work were like “a villain outwitting himself.” Whatever they may have thought or boasted, the thing was not done.

From the origin of the fugitive clause, and the circumstances attending its adoption, it is apparent that it has been the occasion of infinite exaggeration and misrepresentation. Like a Pagan idol, it has been worshipped and covered with gifts; but the prevailing superstition which sustained the imposture has at last disappeared, and we see nothing but a vulgar image of painted wood.

LEGISLATION FOR RENDITION OF FUGITIVE SLAVES.

From the clause in the Constitution, the Committee pass to a consideration of the legislation founded upon it. Of course, if the clause is misunderstood, no legislation can derive any validity from it. _Nothing can come out of nothing_; and since there is nothing in the Constitution positively requiring rendition of fugitive slaves by the National Government, there can be no authority for any legislation by Congress on the subject. Therefore the argument against the existing statutes is complete. But, since it is proposed to reverse an early policy of the Government, the Committee are unwilling to stop here. These statutes must be considered in their history and character.

As early as 1793, while Congress was sitting in Philadelphia, provisions for the surrender of fugitive slaves were fastened upon a bill for the surrender of fugitives from justice, and the whole was adopted, apparently with little consideration. Thus, accidentally, Congress assumed the _odious_ power to organize slave-hunting. But the Act was scarcely passed, before the conscience of people, not only at the North, but even in Maryland, began to be aroused. Granville Sharp, who in England so bravely maintained the national cause as well as the cause of the slave, addressed a letter to the “Maryland Society for Promoting the Abolition of Slavery and the Relief of Free Negroes and others unlawfully held in Bondage,” where he set forth elaborately those binding rules of interpretation, which, according to English law, require a court to incline always in favor of Liberty. This letter purports to have been published, as a pamphlet, by order of the Society, and to have been printed at “Baltimore, in Calvert Street, near the Court-House, by D. Graham, L. Yundt, and W. Patton,” in 1793. In a brief preface, the Maryland Society thus reveals the trials attending the new Fugitive Slave Act:--

“Still Slavery exists, and, _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_.”

Such is a contemporary record of sensibilities in a Slave State; and let it be mentioned to the honor of Maryland. But it is reasonable to suppose that sensibilities in States further north were touched still more. Mr. Quincy, whose living memory embraces this early period, reports, that, when an enforcement of this Act was attempted in Boston, the crowd thronging the room of the magistrate quietly and spontaneously opened a lane for the fugitive, who was thus enabled to save himself from Slavery, and also save the country from the dishonor of such a sacrifice. Almost at the same time, in patriotic Vermont, a judge of the Supreme Court of the State, on application for the surrender of an alleged slave, accompanied by documentary evidence, refused to comply, _unless the master could show a bill of sale from the Almighty_. Such was the popular feeling which this earlier legislation encountered.

There is authentic evidence that this popular feeling was recognized by President Washington as a proper guide, where he was personally interested. A slave of Mrs. Washington had escaped to New Hampshire. The President, in an autograph letter, which has been produced in the Senate,[346] addressed to Mr. Whipple, the collector at Portsmouth, and dated at Philadelphia, November 28, 1796, after expressing the desire of “her mistress” for the return of the slave, lays down the following rule of conduct:--

“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.”

The fugitive never was returned, but survived to a good old age, down to a recent period,--a living witness to that public opinion which made even the mildest of Fugitive Slave Acts a dead letter.

At last, in 1850, after the subject of Slavery had been agitated in Congress without interruption for nearly twenty years, a series of propositions was adopted, and solemnly declared to be _compromises_, by which all the questions concerning Slavery were permanently settled, so as never again to vex the country,--as if any question could be permanently settled except on principles of justice. But the “gruel” was made, and among its ingredients “for a charm of powerful trouble” was a new Fugitive Slave Act, first reported from the Committee on the Judiciary by Mr. Butler, of South Carolina, but afterwards amended by a substitute from Mr. Mason, of Virginia, so as to become substantially his measure. It is needless to mention its details. Suffice it to say, that in these, as in general conception, it was harsh, cruel, and vindictive. Few statutes in history have been so utterly inhuman, not excepting even those British statutes for the oppression of the Irish Catholics, which are pictured by Edmund Burke in words strictly applicable to the monstrosity of our country:--

“That truly barbarous system, where almost all the parts were
outrages on the rights of humanity and the laws of Nature,”--“a
machine of wise and elaborate contrivance, and as well fitted
for the oppression, impoverishment, and degradation of a
people, and the debasement in them of human nature itself, as
ever proceeded from the perverted ingenuity of man.”[347]

Such, unquestionably, was the Fugitive Slave Act of 1850, which is still allowed to remain on the statute-book, a blot upon our country and age.

Where a measure is so plainly repugnant to reason and authority, and on its face has so little foundation in the Constitution, any elaborate argument seems superfluous, especially at this moment, when Slavery everywhere is yielding to Freedom. The general conscience condemns the inhuman statute, and this is enough.

But it is important to show how the country has been deceived. Therefore, briefly, the Committee call attention to the constitutional objections.

UNCONSTITUTIONAL USURPATION OF POWER BY CONGRESS.

Forgetting, then, for the moment, the Preamble of the Constitution, which speaks always for Justice and Liberty,--forgetting, also, the venerable maxim of the law, that “we must incline always in favor of Freedom,” and likewise that other maxim, that “he is impious and cruel who does not favor Freedom,”--refusing, according to the requirement of law, “to catch at anything in favor of Liberty,” and, in spite of all received rules of interpretation, assuming that the words of the fugitive clause adequately define fugitive slaves,--the question then arises, if this clause, thus defiantly interpreted, confers any power upon Congress.

Clearly not.

Search the Constitution, and you will find no grant, general or special, conferring upon Congress power to legislate with regard to fugitives from service or labor. In the general catalogue of powers this is not mentioned; nor does it appear in any special grant. There is nothing in the clause itself, there is nothing in any other clause, applicable to this pretended power. The whole subject is left to stand on a clause which, whatever its meaning otherwise, plainly on its face is only a _compact_, and not a grant of power. And in this respect it differs on its face from other provisions of the Constitution. For instance, 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 grant, these two important subjects would have fallen within the control of the States, the nation having no power _to establish a uniform rule_ thereupon. Now, instead of the existing compact on fugitives from service or labor, it would have been easy, had any such desire prevailed, to add this case to the provision on naturalization and bankruptcy, and empowered Congress _to establish a uniform rule for the surrender of fugitives from service or labor throughout the United States_. Then would Congress have had unquestionable jurisdiction. But nobody in the Convention, not one of the hardiest partisans of Slavery, presumed to make this proposition. Had it been made, it is easy to see that it must have been most unceremoniously dismissed.

The genius of the Common Law, to which our ancestors were devoted, cried out against any such concession. If we refer to its great master, Lord Coke, from whose teachings in that day there was no appeal, we find its living voice. In the Third Institute he thus expresses himself: “It is holden, and so it hath been resolved, _that divided kingdoms, under several kings in league one with another, are sanctuaries for servants_ or subjects flying for safety from one kingdom to another, and, upon demand made by them, are not, _by the laws and liberties of kingdoms_, to be delivered.”[348] Unquestionably, if such “sanctuaries” may be overturned, it can be only in a manner consistent with “laws and liberties” of the States where the fugitive is found, and not through the exercise of a domineering prerogative by Congress.

Whatever the real meaning of the clause in other respects, plainly it is a _compact_, with a _prohibition_ on the States, _conferring no power on the nation_. In natural signification it is a compact. According to examples of other countries and principles of jurisprudence, it is a compact. All arrangements for surrender of fugitives are 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. Bodin asserted the freedom of all foreign slaves just so soon as they crossed into France.[349] In mediæval Europe cities set up the same immunity, even against claimants 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, which is expressly declared to be a “compact,”[350] and this Ordinance, finally drawn by Nathan Dane, of Massachusetts, was again borrowed, in some of its distinctive features, from the early institutions of Massachusetts, among which, as far back as 1643, was a compact of like nature with other New England States. Thus this provision is a compact in language, a compact in nature, and a compact 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.

There are two instances in history of compacts which illustrate the present words. The first is found in a treaty of peace between Leo the Sixth, Greek Emperor of Constantinople, and Oleg, Regent of Russia, in the year of the Christian era 906, as follows:--

“If a Russian slave take flight, or even if he is carried away
under pretence of having been bought, his master can pursue him
and take him wherever he shall find him, and any man who shall
oppose him in his search _shall be deemed guilty_.”[351]

This compact, made in the unequivocal language of a barbarous age, has long since ceased to exist; and now, in our own day, Russia disdains to own a slave.

The other instance is the compact between the New England colonies in 1643, being one of the “Articles of Confederation between the Plantations under the Government of the Massachusetts, the Plantations under the Government of New Plymouth, the Plantations under the Government of Connecticut and the Government of New Haven, with the Plantations in combination therewith.” Here it is:--

“_It is also agreed_, That, if any servant run away from his
master into any other of these confederated jurisdictions, that
in such case, upon the certificate of one magistrate in the
jurisdiction out of which the said servant fled, or upon other
due proof, the said servant _shall be delivered_ either to his
master or any other that pursues and brings such certificate or
proof.”[352]

Here, by words of _agreement_, less frank and unequivocal than those of the earlier time, fugitives are restored. But this compact, like its Russian prototype, long since ceased to exist.

Unquestionably the fugitive clause of the Constitution, whether applicable to fugitive slaves or not, was never intended to confer power upon Congress, but was simply a _compact_, to receive such interpretation as the States where it was enforced might choose to adopt.

AUTHORITIES AGAINST THE POWER OF CONGRESS.

The Committee do not leave this conclusion to rest merely on unanswerable reason. Authorities add to the testimony.

Here is the judgment of Chancellor Walworth, of New York, pronounced in 1835, before this subject had become the occasion of political strife. The testimony of the learned Chancellor is the more important, when it is considered that he has always acted politically with the Democracy, which has been the support of Slavery.

“I have looked in vain among the powers delegated to Congress
by the Constitution for any general authority to that body to
legislate on this subject. It certainly is not contained in any
express grant of power, and it does not appear to be embraced
in the general grant of incidental powers contained in the last
clause of the Constitution relative to the powers of Congress.
The law of the United States respecting fugitives from justice
and fugitive slaves is not a law to carry into effect any of
the powers expressly granted to Congress, ‘or any other power
vested by the Constitution in the Government of the United
States, or any department or officer thereof.’”[353]

Here, also, is the judgment of Chief Justice Hornblower, of New Jersey, pronounced in 1836. Having shown that the clause in question confers no power on Congress, he proceeds as follows.

“In short, if the power of legislation upon this subject
is not given to Congress in the second section of the fourth
article of the Constitution, it cannot, I think, be found in
that instrument. The last clause of the eighth section of the
first article gives to Congress a right to make all laws which
shall be necessary and proper for carrying into execution _all
the powers_ vested by the Constitution in the Government of
the United States, or in any department or officer thereof.
But the provisions of the second section of the fourth article
of the Constitution cover no grant to, confide no trust, and
vest _no powers_ in, the Government of the United States. The
language of the whole of that section is to establish certain
principles and rules of action by which the contracting parties
are to be governed in certain specified cases. The stipulations
respecting the rights of citizenship, and the delivery of
persons fleeing from justice or escaping from bondage, _are
not grants of power_ to the General Government, to be executed
by it in derogation of State authority, but they are in the
nature of treaty stipulations, resting for their fulfilment
upon the enlightened patriotism and good faith of the several
States. The argument in favor of Congressional legislation,
founded on the suggestion that some of the States might refuse
a compliance with these constitutional provisions, or neglect
to pass any laws to carry them into effect, _is entitled to no
weight_.”[354]

Afterwards, in a published letter of 1852, the Chief Justice says:--

“Be assured, my dear Sir, my judgment, whatever it may be
worth, has been for years, and now is, in perfect accordance
with yours in relation to the unconstitutionality of the
Fugitive Slave Laws of 1793 and 1850.”[355]

Other judicial opinions might be adduced; but, as they have been pronounced since controversy on this question, they would be less regarded.

There are opinions, pronounced in the Senate, which, from the characters of their authors, are entitled to peculiar consideration.

It will be remembered that Mr. Webster gave his support to the Fugitive Slave Act of 1850; but, whatever may have been his vote, so far as his personal authority could go, _he condemned the Act as unconstitutional_. Here is his opinion, in the famous speech of the 7th March, 1850.

“I have always thought that the Constitution addressed itself
to the Legislatures of the States, or to the States themselves.
It says that those persons escaping to other States ‘shall be
delivered up,’ and I confess I have always been of the opinion
that it was an injunction upon the States themselves. When it
is said that a person escaping into another State, and coming,
therefore, within the jurisdiction of that State, shall be
delivered up, _it seems to me the import of the clause is, that
the State itself, in obedience to the Constitution, shall cause
him to be delivered up_. _That is my judgment. I have always
entertained that opinion, and I entertain it now._”[356]

“I have always entertained that opinion, and I entertain it now.” Such are the emphatic words by which Mr. Webster declares his judgment of the unconstitutionality of this Act.

He was not alone. Mr. Mason, the actual author of the Act of Congress, exposed its unconstitutionality in the very speech by which he introduced it.

“In my reading of these clauses of the Constitution for
extradition of fugitives of both classes, _I advance the
confident opinion_ that it devolves upon the States the duty
of providing by law both for their capture and delivery.… I
say, then, Sir, that the true intent of the Constitution was
to devolve it upon the States, as a federal duty, to enforce,
by their own laws, within their respective limits, both these
clauses of extradition.”[357]

And Mr. Butler, of South Carolina, at a later day, said:--

“Under the Constitution, each State of itself ought to provide
for the rendition of all fugitives from labor to their masters.
_This was certainly the design of the Constitution._”[358]

Such are some of the authorities, judicial and political, by which Congressional power over this subject is denied. And yet, in the face of all authority, and in defiance of reason, Congress assumed this power. It was done at the demand of Slavery, and for the protection of Slavery. Of course, such an assumption of undelegated power was a usurpation at the time, and is a usurpation still,--doubly hateful, when it is considered that it is a usurpation in the name of Slavery. It is hard to think that Congress was driven to unconstitutional assumption in such a cause, and that, contrary to sovereign rules of interpretation, it leaned to Slavery rather than to Freedom. But the time has come at last when it may recover the attitude belonging to it under the Constitution.

In advising the repeal of the Fugitive Slave Act, it is enough to show that it is founded on usurpation by Congress of power not granted by the Constitution. But, even admitting the power, a slight examination will show that it has been executed in defiance of the Constitution.

The constitutional objections to the Fugitive Slave Act are abundant. It is not too much to say, that in every section and at every point it is repugnant to admitted principles of Constitutional Law.

UNCONSTITUTIONAL DENIAL OF TRIAL BY JURY.

Foremost among these objections it is proper to put the denial of trial by jury to the fugitive whose liberty is in question. It is well known that Judge Story, who pronounced the opinion of the Supreme Court affirming the constitutionality of the early Fugitive Slave Act, declared that the necessity of a trial by jury had not been argued before the Court, and that in his opinion this was still “an open question.”[359] It has never been argued since; but it is difficult to say that it is still “an open question.” The battles of Freedom are never lost, and the longer this right is denied the more its justice has become apparent, until at last it shines resplendent beyond all contradiction. Even if there were doubt of the obligation of Congress, there can be no doubt of the power. Nobody denies that Congress, if it legislates on this matter, _may_ allow trial by jury. But here again, if it _may_, so overwhelming is the claim of justice, it MUST.

The text of the Constitution leaves the case beyond question. And here, on the threshold, two necessary incidents of the delivery are observed: first, it must be made in the State where the fugitive is found; and, secondly, it restores to the claimant complete control over the person, so that the victim may be conveyed to any part of the country where it is possible to hold a slave, or he may be sold on the way. The proceedings, therefore, cannot be regarded, in any just sense, as preliminary or auxiliary to some future formal trial, as in the case of a fugitive from justice, but as complete in themselves, final and conclusive.

It is because of the contempt with which, under the teachings of Slavery, to the shame of our country, men have thus far regarded the rights of colored persons, that courts have been willing for a moment to recognize the constitutional right to hurl a human being into bondage without trial by jury. Had the victims been white, it is easy to see that the rule would have been different. But it is obvious, that, under the Constitution, the rule must be the same for all, whether black or white.

On the one side is a question of property; on the other side is the vital question of Human Freedom in its most transcendent form,--not merely Freedom for a day or a year, but for life, and the freedom of generations that shall succeed so long as Slavery endures. Whether viewed as a question of property or a question of Human Freedom, the requirement of the Constitution is equally explicit, and it becomes more explicit as we examine its history. It is well known, that, at the close of the National Convention, Elbridge Gerry refused to sign the Constitution, because, among other things, it sanctioned the establishment of “a tribunal _without juries_,--a Star-Chamber as to civil cases.”[360] Many united in this opposition, and on the recommendation of the First Congress an additional safeguard was added in the following words: “In _suits at Common Law_, where the value in controversy shall exceed twenty dollars, _the right of trial by jury shall be preserved_.” Words cannot be more positive.

Three conditions, according to this Amendment, are necessary. _First_, there must be “a suit.” But the Supreme Court, in the case of _Cohens_ v. _Virginia_, have defined a suit to be “the prosecution, or pursuit, of some _claim_, demand, or request,”[361]--thus affirming that the “claim” for a fugitive is “a suit.” _Secondly_, there must be a suit “at Common Law.” But here again the Supreme Court, in the case of _Parsons_ v. _Bedford_, while considering this very clause, has declared that “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_”;[362] and clearly, since the claim for a fugitive is not a suit in Equity or Admiralty, but a suit to settle what are culled “legal rights,” it must, of course, be “a suit at Common Law.” _Thirdly_, the value in controversy must “exceed twenty dollars.” But here again the Supreme Court, in the case of _Lee_ v. _Lee_, on a question as to jurisdiction, founded on “the value in controversy,” has declared that the freedom of the petitioners, which was the matter in dispute, was “not susceptible of a pecuniary valuation,”[363]--showing, that, since Liberty is above price, the claim to a fugitive always necessarily presumes that “the value in controversy exceeds twenty dollars.”

Thus, by a series of separate decisions of the Supreme Court on the three points involved in the interpretation of this clause, it is clear beyond question that the claim to a fugitive is, first, “a suit,”--secondly, “at Common Law,”--thirdly, “where the value in controversy exceeds twenty dollars”: so that trial by jury is expressly secured.

Even if the Supreme Court had been silent on this question, the argument from the old books of the Common Law would be unanswerable. We are told that there is nothing new under the sun. Certainly, long before our Constitution, the claim for a fugitive slave was known to the Common Law. In early history, and down even to a late period, the slave in England was generally called _villein_, though in the original Latin judicial forms _nativus_, implying slavery by birth. Of course, then as now, he sometimes ventured to _escape_ from his master; but the Common Law supplied the appropriate remedy. The claim was prosecuted by “a suit at Common Law,” to which, as to every suit at Common Law, the 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_.”[364] But this word “action” of itself implies “a suit at Common Law,” with trial by jury.

The forms of proceeding in such cases are carefully preserved in those books which constitute the authoritative precedents of the Common Law. There are writs, counts, pleadings, and judgments, all ending in trial by jury. They will be found in Fitzherbert’s “Natura Brevium.”[365] The Year Books and Books of Entries are full of them. Clearly and indisputably, in England, where the Common Law has its origin, a claim for a fugitive slave was “a suit at Common Law,” recognized as such among its old and settled proceedings, as much as a writ of replevin for a horse or a writ of right for land. It follows, then, that the requirement of the Constitution, read in the illumination of the Common Law, naturally and necessarily embraces proceedings for the recovery of fugitive slaves, _so far as any such are instituted or allowed under the Constitution_.

And this irresistible conclusion had the support of a Senator from South Carolina in an earlier period of our history, before passion had obscured reason and conspiracy against the Union had blotted out all loyalty to truth. In reply to a proposition, in 1818, to refer the claim of the master to a judge without a jury, Mr. Smith, speaking solely in the interests of property, thus expressed himself:--

“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.”[366]

Thus, in those days, a partisan of Slavery, while asserting its divine origin, and vindicating the rendition of fugitive slaves, recognized the claim of the master as “a suit at Common Law,” to be tried by a jury; and this he _insisted_ was prescribed by the Constitution. But if this Senator could claim trial by jury for the protection of his pretended property, with much greater reason might the fugitive claim trial by jury for the protection of his liberty. Surely, now, when Liberty is regaining her lost foothold, this protection will not be denied.

OBJECTIONS TO TRIAL BY JURY.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OTHER OBJECTIONS TO THE FUGITIVE SLAVE ACT.

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

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

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

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

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

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

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

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

CONSEQUENCES OF THE FUGITIVE SLAVE ACT.

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

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

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

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

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

AUTHORS OF THE FUGITIVE SLAVE ACT.

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

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

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