Chapter XX: Letter II: To the Editors of the Boston Atlas; (8)

I say, sir, it is the population of African descent in the free states which is specially put in peril by this law. Occasionally, indeed, persons of unmixed white blood are seized and enslaved under it. These cases, however, are comparatively rare. But suppose the reverse. Suppose circumstances to be such that the whole body of the white population should be as much endangered by it as the colored people now are. Suppose that not only the white voters themselves, but their wives and their children, were as liable to be “_Ingrahamed_,” as the blacks; suppose this, I say, and would the existence of the law be tolerated for an hour? Would there not be an uprising of the people, simultaneous and universal against it, and such a yell of execration as never before burst from mortal lips? The name of every man who had voted for it, or who should defend it, would be entered upon that apostate list at whose head stands the name of Judas. Christian and Infidel, Jew and Gentile, would execrate it alike. Why, then, if they would do this to avert such peril from themselves and their families, do they not do it when their sable brethren are in jeopardy? Alas! there is but one answer! From selfish considerations, from the love of wealth, or the love of power, they have discarded that heaven-descended maxim, “Whatever ye would that men should do unto you, do ye the same unto them.”

And it is this very class of men who have thus abjured the precepts of Jesus Christ, who have trampled upon the divine doctrines of liberty and love, that now so clamorously summon us to an obedience to law.

In answer to this call, let me say, that true obedience to law is necessarily accompanied and preceded by a reverence for those great principles of justice and humanity without which all law is despotism. How can a man pretend to any honest regard for the principle of obedience to law when he is willing, as in the case of this fugitive act, to transcend our constitutional law, and to invade the divine law? It is but an appeal to the lower rule of action to justify a violation of the higher. Under the pretext of rendering unto Cæsar the things that are Cæsar’s it denies to God the things that are God’s.

And again, a true reverence for law is a general principle, and not an isolated fact. It applies to all laws collectively, and not to any one law in particular. It bestows its greatest homage upon those laws that embrace and confer the most of human welfare; for, were all the laws of a community, or the great majority of them, unrighteous, then disloyalty to law would be the virtue. Can the class of men who demand our allegiance to the Fugitive Slave law stand this test? We have usury laws, which not only carry the legal force of statutes, but the moral power of the greatest names in legislation and in statesmanship. Are the men in New York, in Philadelphia, and Boston, who are most vehement in support of the Fugitive Slave law, signalized for their regard to the statutes against usury?

Is not money lent in all those cities on the same principle that wreckers send a rope’s end to a drowning man,--for as much as they can extort? It is notorious that among the great body of merchants and capitalists in those cities, interest is regulated by the pressure upon the money market, and that no more idea of law mingles with their contracts than in California, where there is no law on the subject.

We have laws restricting the sale of intoxicating liquors, and designed to promote the glorious object of temperance. For which practice have our cities been conspicuous,--for their obedience to these laws or for their violation of them? A few years ago, when a question of the constitutionality of a law of Massachusetts for the restraint of intemperance arose, did not its two distinguished senators appear in the supreme court of the United States, and make the most strenuous exertions to annul the law of their own state, and to open anew the flood-gates for overwhelming their own constituents in misery and ruin,--the selfsame gentlemen who are now so intolerant even of discussion?

Look at the complaints which come to us every day from the friends of a protective tariff. They tell us that our revenue laws are fraudulently and systematically evaded; and they number the violations of these laws by thousands and tens of thousands. Who are the violators? Not men living in the country; not the farmers and mechanics and laborers,--the substratum of our strength and the origin of our power;--but they are the city merchants, the getters-up of “Union meetings,” and the members of “safety and vigilance committees,” who are so earnest in inculcating those lessons of obedience by their precepts, which they have done so little to recommend by their example.

The Southern States are loud in their calls upon us to execute the Fugitive Slave law. But what examples have they set us on the subject of obedience to law? I think I may be pardoned for mentioning a few cases, to show how their preaching and practice tally.

In 1831, the legislature of Georgia offered a bribe of _five thousand dollars_ to any one who would arrest, and bring to trial and conviction, in Georgia, a citizen of Massachusetts, named William Lloyd Garrison. This law was “approved” by William Lumpkin, governor, on the 26th December, 1831. Mr. Garrison had never stepped foot within the limits of Georgia, and therefore it was not a reward for his trial and conviction, but for his abduction and murder.

At a meeting of slaveholders, held at Sterling, in the same state, September 4, 1835, it was formally recommended to the governor, to offer, by proclamation, the five thousand dollars appropriated by the act of 1831, for the apprehension of either of ten persons, citizens, with one exception, of New York, or Massachusetts, whose names were given; not one of whom, it was not even pretended, had ever been within the limits of Georgia.

The Milledgeville, Georgia, “Federal Union,” of February 1, 1836, contained an offer of $10,000 for kidnapping A. A. Phelps, a clergyman of the city of New York.

The committee of vigilance, (another “committee of vigilance,”) of the parish of East Feliciana, offered, in the Louisville Journal, of October 15, 1835, $50,000 to any person who would deliver into their hands Arthur Tappan, a merchant of New York.

At a public meeting of the citizens of Mount Meigs, Alabama, August 13, 1836, the _honorable_ Bedford Ginress in the chair, a reward of $50,000 was offered for the apprehension of the same Arthur Tappan, or of Le Roy Sunderland, a Methodist clergyman of New York.

Repeated instances have occurred in which the governors of slave states,--Virginia, Georgia, Kentucky, Alabama, &c.,--have made requisitions upon the governors of free states, under the second section of the fourth article of the constitution, for the surrender of free citizens, _as fugitives from justice_, when it was well known that the citizens so demanded were not within the limits of the slave states at the time when the alleged offence was committed, and, in some instances, had never been there in their lives,--high executive perversions of the constitution of the United States, by chief magistrates who had sworn to support it!

For nearly twenty years past the post-office laws of the United States have been systematically violated in slave states, the mail bags rifled, and their contents seized and publicly burned; and, in some instances, these violations have been enjoined, under heavy penalties, by a law of the states. There are several of the slave states on whose statute books these laws, commanding a violation of the post-office, stand to-day.

During Mr. Adams’s administration, a man by the name of Tassels, in Georgia, was adjudged to be hanged, under a law of the state, as clearly unconstitutional as was ever passed. A writ of error was sued out from the supreme court of the United States, in order to bring the case before that tribunal for revision. But the state of Georgia anticipated the service of the writ, and made sure of its victim by hanging him extemporaneously.

Within a few weeks past,--the accounts having but just now reached us,--an aged and most respectable individual of the name of Harris, a citizen of New Hampshire, has been tried by a mob in South Carolina, and tarred and feathered, because he happened to have _in his trunk_ a sermon which had been sent to him by one of his acquaintances, a clergyman at the north; though he had never showed the sermon to a single individual, nor whispered a word of its contents. Another man, a Dr. Coles, belonging to Boston, who had been lecturing on the subject of physiology, was, within a few days, seized and carried before a magistrate, in the same state, his trunks rifled, the private letters sent to him by his wife and family publicly read, with the most indecent comments, and all without any shadow of reasonable suspicion against him.

The unconstitutional imprisonment of northern seamen in southern ports is an occurrence so frequent, and so universally known, that I need not spend time to enumerate or to describe the cases.

The President of the United States has made proclamation, and proffered the military and naval force of the United States, to aid any southern slave owner in reducing his fugitive slave to a new bondage; but I have not heard that he has made any similar proclamation, or manifested any anxiety for the support of that part of the constitution which says that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.”

Now, with a few exceptions, it is these very classes of men who violate the laws against extortion and usury; who break down the barriers against the desolations of intemperance; who, almost alone of all our citizens, are implicated in the breach of the revenue laws; who annul the post-office laws of the United States; who offer rewards for free northern citizens, that they may get them in their clutch to lynch and murder them; who demand free citizens as fugitives from justice, in states where they have never been, and who imprison free citizens and sell them into slavery;--it is these classes of men who are now so suddenly smitten with a new sense of the sacredness of law, and of the duty of obedience to law,--not of the laws of God, not even of the laws of man, in general, but of this most abominable of all enactments, the Fugitive Slave law in particular.

I do not cite the above cases from among a thousand similar ones, as any justification or apology for forcible and organized resistance to law by those who even constructively can be said to have given it their consent. But the words of a preacher do not “come mended from his tongue,” when his name is a scandal among men for his violation of all the precepts he enjoins.

And now, sir, when I am called upon to support such a law as this, or to desist from opposing it in all constitutional ways, while it lasts, my response is, repeal the law, that I may no longer be called upon to support it. In the name of my constituents, and by the memory of that “old man eloquent,” in whose place it is my fortune to stand, I demand its repeal. I demand it,--

Because it is a law which wars against the fundamental principles of human liberty.

Because it is a law which conflicts with the constitution of the country, and with all the judicial interpretations of that constitution, wherever they have been applied to the white race.

Because it is a law which introduces a fatal principle into the code of evidence, and into judicial practice,--a principle, before which no man’s liberties and no man’s rights of any kind can stand.

Because it is a law which is abhorrent to the moral and religious sentiments of a vast majority of the community that is called upon to enforce it.

Because the life and character of so many of its apologists and supporters are themselves potent arguments against whatever they may advocate.

Because it is a law which, if executed in the free states, divests them of the character of free states, and makes them voluntary participators in the guilt of slaveholding.

Because it is a law which disgraces our country in the eyes of the whole civilized world, and gives plausible occasion to the votaries of despotic power to decry republican institutions.

Because it is a law which forbids us to do unto others as we would have them do to us, and which makes it a crime to feed the hungry, to clothe the naked, and to visit and succor the sick and the imprisoned.

Because it is a law which renders the precepts of the gospel and the teachings of Jesus Christ seditious; and, were the Savior and his band of disciples now upon earth, there is but one of them who would escape its penalties by pretending “to conquer his prejudices.” And, finally,

Because the advocates and defenders of this law have been compelled to place its defence upon the express ground that the commandments of men are of higher authority than the ordinances of God.

In Hooker’s sublime description of law, when understood in its generic sense, he says,--

“Of law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world; all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempted from her power; both angels, and men, and creatures, of what condition soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy.”

Now, sir, with these glorious attributes of “law,” I say the Fugitive Slave law of the last session possesses not one quality in common, nor in similitude. To say that the seat of such a law is in the “bosom of God,” is the intensest blasphemy. To say that it is “the harmony of the world,” is to declare that the world is a sphere of ubiquitous and omnipotent wrong, uncheckered by any thought of justice, and devoid of any emotion of love. To say that “all things in heaven do homage” to such a law, is to affirm of the realms of light what is true only of the realms of darkness. The “least” do not “feel its care,” but tremble and wail beneath its cruelty; while the “greatest” and the strongest _are_ “exempt from its power;” for they made it not for themselves but for others. To no class of “creatures,” rational or irrational, human or divine, can it prove to be the “mother of peace and joy;” but wherever it extends, and as long as it exists, it will continue to be an overflowing Marah of bitterness and strife.

As the great name of Hooker has been profanely cited in behalf of this law, I will close by quoting his distinction between those laws of human governments which ought to be obeyed, and those which ought not:--

----“which laws,” says he, “we must obey, _unless there be reason showed which may necessarily enforce that_ THE LAW OF REASON OR OF GOD DOTH ENJOIN THE CONTRARY.”

FOOTNOTES:

[20] Such also is the law in Louisiana. See _Louis_ vs. _Marot_, 9 Louis. Rep. 473; _Smith_ vs. _Smith_, 13 Louis. Rep. 441.

SPEECH

ON THE FUGITIVE SLAVE LAW, DELIVERED AT LANCASTER, MASSACHUSETTS, MAY 19, 1851, PENDING THE CANVASS FOR A MEMBER OF CONGRESS FOR THE FOURTH CONGRESSIONAL DISTRICT.

FELLOW-CITIZENS;

We are assembled on a great occasion and for a great purpose. The election of a member of Congress, indeed, is not an extraordinary event; but it is extraordinary that principles of the most vital importance to the honor of Massachusetts, and to the cause of human liberty throughout the world, should be involved in a local election. Such, however, is now the fact.

Gentlemen, the assertion and the recognition of the rights of man have made great progress among the nations of Europe within the recollection of many who are now before me. Notwithstanding the partition of Poland by allied robbers, and the obliteration of that kingdom from the map of Europe; notwithstanding Hungarian subjugation to Austrian despotism, and many other atrocious crimes against humanity, such as nations only can commit; for they are too vast and monstrous to be perpetrated by any individual,--I say, notwithstanding these facts, the great fabric of human liberty has been rising in Europe, while the solid structures of despotism have been disintegrating and making ready for their fall.

But truth compels me to acknowledge that, during the last three quarters of a century, our course, in this country, has been downward. While among the other nations of Christendom the altar-fires of liberty have been kindling and burning with a brighter flame, ours have been waning. At the foundation of our government an institution existed amongst us utterly irreconcilable with the fundamental principles of the government itself. But it was then limited in its extent, and its spirit nowhere existed in great intensity. Even those who cherished it most were ashamed of it; and in those provisions of the constitution which were designed for its temporary protection, a common regard for decency forbade the mention of its name. Fatally to our own peace and honor, that which was then regarded as temporary and local, now threatens to be abiding and universal. From speaking of slavery with hushed breath, its bold abettors now shout forth its praises. From providing for the extermination of the African slave trade, they have converted the slave states into another Africa, this side the tropics; and by the successful robbery of a neighboring republic, they seek to create a new America, so that the slave trade, once abolished and declared piracy, may be revived and legalized. The Middle Passage is to be transferred from the ocean to the land. Maryland, Virginia, Kentucky, &c., are to be the Gold Coast, Benin, and the Galinas; the place of supply, the place of demand, and the highways of commerce between them are to be within our own borders and protected by the American flag; and that horrid traffic which all the leading nations of Christendom united in declaring to be a felony punishable with death, is now to be maintained and defended amongst ourselves, under penalty of death and a dissolution of the Union.

Nor does it suffice that the tide of slavery should rise and overflow the vast and uninhabited regions of the west. It surges up against the free states themselves, and all the dikes and barriers of that constitutional law which we have been enacting for seventy-five years, cannot stay its flood. We thought that Massachusetts was the impregnable citadel of freedom; but unconstitutional and inhuman laws, dictated by slaveholders, are now enforced amongst us, and at our very doors; and our services are commanded for their execution.

Thank God, there is a part of our people who, while they suffer, resist. Only a portion amongst us have reached that lowest depth of degradation, where they surrender, not their limbs only, but their wills, to the hateful service of their masters. Slavery has done its perfect work only when the soul is enslaved. I rejoice to believe that we have not only seven thousand in this our Massachusetts Israel, who have not bowed the knee to Baal, but seven hundred thousand; and recent events foretell not only an increasing number, but a more determined opposition.

Why is it, fellow-citizens, that Massachusetts stands first, or among the first, in 1851, in her hostility to the Fugitive Slave law? I answer, for the very reason that she stood first in her hostility to the encroachments of the British crown in 1776. And in less than seventy-five years from this time, those who oppose and those who defend this inhuman law, will stand, historically, as wide asunder, and will share as high an honor or suffer as deep an ignominy, as is now awarded to the lovers of freedom and the minions of power who lived at the era of the revolution. Let all young men beware not to be seduced by any temptations of immediate profit or mistaken honor, to lift a hand in defence of this law. If they do, then, before they have lived out half their lives, they will be as ready as old Cranmer to thrust the offending member into the flames, and to say with him, “This hand, this wicked hand, has offended.”

Gentlemen, we in Massachusetts are a Union-loving, and law-abiding people. Mr. Webster and his “retainers” may spare their breath in exhorting us to abide by the Union. Such a work, in this commonwealth, is a work of supererogation. He knows, and they know, that the number of disunionists in this state can be counted on a man’s fingers and toes. Whatever influence they exert must flow from their zeal, their talents, and their private character; for they derive none from numerical force. Were they all to settle in one of our small towns, they would be out-voted by its inhabitants. I regard these ever-repeated appeals made to Massachusetts men and to New England men to stand by the Union, as not merely obtrusive, but as affrontive and insulting. Besides, when a man undertakes the mission of going round the country, preaching honesty, or temperance, or chastity, he provokes the inquiry whether he is more honest, temperate, or continent than those whom he exhorts. If the union of these states now is, or has ever been verging towards a point of danger, it is solely and only because ambitious men and mercenary men at the north have given it that direction by recognizing southern threats and bravadoes as realities, and thus encouraging them. Let the greatest coward see that his threats are acknowledged as verities, and he will adopt the cheap mode of threatening instead of the hazardous one of acting. Could the Chinese have frightened away the British fleet by their battery of wooden cannon, having the middle of the ends painted black for a muzzle, they would have been fools to incur the expense of brass or iron. But John Bull did not care whether the cannon were of wood or of metal, and at his first fire the Celestials scampered. But here, when a few men in a few states pointed their wooden guns at us, Mr. Webster, General Cass, and others, for their own ambitious purposes, cried out that the Union was in danger. I say, then, if the union of these states ever has been in any proximity to danger, it was not from menaces uttered by the south, but from northern indorsement of them. If northern leaders had dishonored instead of indorsing this spurious paper, it never would have got into circulation.

We are not only Union-loving men, but, as I said before, we are law-abiding men. Had this not been so, not all the fleets and armies in the world could have carried Thomas Sims into bondage. So intimately blended is the reverence for law with the very soul of our people, that if you could convince them that a statute has legal force and is binding upon the conscience, I verily believe our juries would give a verdict in favor of Shylock, though the pound of flesh which he claimed were to be carved from their own bosoms. This side of a just cause for revolution, they will yield submission to all laws enacted by the government, with one single exception. The exception I mean, embraces those laws of men which are clearly contrary to the law of God. And I trust the time is not now, and never will be, when the children of the Puritans will obey any commandment of human origin if it conflicts with a divine command, though they have to lie down in lions’ dens or walk through furnace fires, as the penalty of disobedience.

But with this sentiment of reverence for law is another sentiment, which is its proper attendant and brother,--I mean a desire and a determination to know what that is which is called _law_; what it is that claims this prerogative of controlling the will and challenging the conscience. It is in this spirit that they have discussed and mean to discuss the Fugitive Slave law, and to bring it, Protestant fashion, to the test of individual judgment and conscience.

I have no need to repeat to you the general provisions of this inhuman enactment. No lover of liberty can read them without having their atrocious character burned into his mind ineffaceably. You know that it assumes to dispose of the highest interests of human liberty,--the liberty of soul as well as the liberty of person;--and you know that it also assumes to dispose of the most precious interests of property,--the property that a man has in himself and in all his capacities of physical enjoyment and suffering as well as his property in his money or his goods;--without a single one of those safeguards and protections which the constitution of the country builds up like a rampart of defence around us all. This enactment, too, is no theoretic affair; it is no dead letter on the statute book. It is a living monster, uncaged and turned loose amongst us, to rob and devour at its will.

Now, I have two objections to this law, which absolve me from all obligations to execute it, or, in any way or manner, to assist in executing it. First, I believe it to be contrary to the law of God, which, God helping me, shall be the rule of my conduct, though I should scatter political treasons as the autumn wind scatters leaves. In his dread description of the judgment day, Jesus Christ makes the distinction between saints and sinners to turn upon the fact, whether they have fed the hungry, clothed the naked, and visited those who were sick and in prison. And who so hungry as those who do not own, and cannot own a morsel of bread? Who so naked as those who do not own, and cannot own a shred of a garment to protect them from cold, or from the lascivious eye? And what confinement was ever so hopeless as southern slavery, what prison was ever so deep as that prison-house which holds three millions of our fellow-beings within its melancholy walls,--them and their posterity forever? He that refuses the common acts of hospitality to these victims, when fleeing from their bondage, denies his Lord and Master. He that refuses them, disobeys every precept of the Savior, and has no more right to call himself a Christian, than has the Fejee islander, when he rises from his cannibal banquet. He is the Levite who passes by on the other side.

And next, I hold this law to be contrary to the constitution of the United States, and therefore of no binding force upon my conscience or my conduct. I do not mean to say by this that I shall make forcible opposition to it. I take the Quaker ground upon this subject; I will not assist to execute it, though I shall suffer it to execute itself on me.

The constitutionality of this law has been extensively discussed. But there is this broad difference between the arguments of those who affirm and those who deny that it is constitutional. Those who deny it, argue the question upon its merits, upon principle, upon those legal relations and analogies that so nobly characterize the English law on the subject of human liberty. But those who affirm the constitutionality of the law, base their argument upon technicalities and upon precedents, and they cannot sustain themselves for a moment on any other ground. They found themselves, in the first place, upon the statutory precedent of 1793, which was an act passed with very little deliberation, as its history shows, and passed, too, when it was expected on all hands that slavery would soon die out. In the next place, they rely upon the judicial precedent of Prigg’s case, which was made by a bench of slaveholding judges, and some of the points which the court professed to decide did not arise in the case.

Now the statutory precedent covers only a part of the case; for some of the most hateful features of the law of 1850 are not to be found in the law of 1793; and the supreme court has never passed upon the law of 1850 at all. So two points are clear in the outset, that the champions of the law cannot get along without the precedents, and the precedents, in several most important particulars, fail them altogether.[21]

This question has lately been discussed in our own vicinity. The liberty of a resident of Massachusetts,--a man every way entitled to a jury trial by our constitution and laws, as much as you or I,--has been sacrificed by a United States commissioner in the city of Boston.[22] He has decided in favor of the law. You would naturally suppose that, in order to shelter himself from the odium of such a decision, he would put all personal and all collateral resources into requisition to make the case as plausible as ingenuity can make it. It is said, too, that Mr. Webster and Mr. Webster’s friends, and the commissioner’s friends have contributed of their strength to help the debility of the case. While the cause was pending before him, one of the points involved in it was brought before the supreme court of Massachusetts, and also before the circuit court of the United States. The commissioner adjourned the case over after all the arguments of counsel were in. He thereby gave himself an opportunity for preparation and for consultation. I am taking no exception to all this. I am glad it was done. I suppose we now have the breadth and length and strength of what can be alleged in favor of the law. I never feel so confident of my conclusions as when strong men have taken the opposite side, and have failed to sustain it.

Now, to this decision of the commissioner, made under such incitements, and with such opportunities, I propose to invite your attention. The discussion may be dry, but it will not be uninteresting; for it involves matters as important as the liberty of the body and the liberty of the will, and the liberty and life of the human soul.

It may be said that these are legal and constitutional questions, and, therefore, that unprofessional men cannot understand them. But most, if not all the points which I shall bring to your attention, are matters of intuition; questions wholly within the jurisdiction of plain common sense, and such, therefore, as can be decided by you as well as by lawyers or judges. And if I can convince you of the inconclusiveness of some parts of this decision, of the legal Jesuitism of other parts, and of the self-contradiction that pervades the whole, you will not hesitate to set it aside, not as null and void merely, but as discreditable to the profession of the law, and dishonorable to the State of Massachusetts.

The first point which the commissioner discusses is, whether in seizing, by his warrant, a man actually free, in deciding, by his judgment, the exact question, whether that man were a slave, and in sending him, by his certificate, where the lash and the law of slavery apply to his body and his spirit, he were exercising “_judicial power_,” as conferred by the constitution of the United States upon such courts as _Congress_ should establish. He at first decides that he does _not_ exercise such power. This was well; for he knows that he was never appointed, nor commissioned, nor sworn, nor is paid, nor removable from office for mal-conduct, as is prescribed by the constitution in the case of judges. Badly heroic as he was, _in fact_, in exercising jurisdiction over a human being, and delivering him over into hopeless and irremediable bondage, he was not mad enough to arrogate, _in terms_, the prerogative of “_judicial power_.”

But what says his superior, the attorney-general of the United States? In an elaborate opinion, given by order of the President of the United States,--an opinion which, as I suppose, passed under the supervision of the whole cabinet, and therefore may be presumed to have the authority of Mr. Webster and the other constitutional advisers of the President, and which certainly had the sanction of the President himself, for he acted upon it,--in this opinion the attorney-general says,--

“These officers, [the commissioners,] and each of them, have _judicial power_, and jurisdiction to hear, examine, and decide the case.”

“The certificate to be granted to the owner is to be regarded as the act and _judgment_ of a _judicial tribunal_, having competent _jurisdiction_.”

“Congress has constituted _a tribunal_, with _exclusive jurisdiction_ to determine summarily, and without appeal, who are fugitives from service.”

“The _judgment_ of the _tribunal_, created by this act, is conclusive upon all _tribunals_.”

Now, which is right, the attorney-general, with the President and his cabinet as indorsers, or Mr. Commissioner Curtis? I submit to you that the former were clearly right, so far as this,--that when the constitution declares that “no person shall be deprived of life, liberty, or property, without due process of law,” (which imports a trial by jury,) then neither Adam Gibson, nor Thomas Sims, nor any other alleged fugitive can be so deprived, without trial by jury, _and the judgment or sentence of the “judicial power” thereupon_. The following position has never been answered, and I think never can be, namely, that if a resident of Massachusetts can be deprived of his “liberty and property,” without a trial by jury and a judgment of a _court_, then he may be deprived of his life also; for “life, liberty, and property” are secured in the same section, in the same sentence, and by the same safeguard.

The attorney-general held that, as the power exercised by the commissioner was a “judicial power,” it deprived the party of all benefit from the _habeas corpus_. And there was some plausibility in this, though, I think, no soundness. But our defenders of the law hold that this sending of a man into bondage is not a part of the “judicial power,” and yet that it deprives him of all benefit of the _habeas corpus_. That is, they hold that a man may be deprived of his liberty and property, (and of course of his life,) _by a ministerial proceeding_, not having its origin in any court, and not to be prosecuted to final judgment in any court, and yet that all the courts in the land, competent to furnish relief in any other case, can afford none in this. If this be true, if a proceeding, held and acknowledged by the officer who initiates and conducts it to be a ministerial proceeding, not originated by a court, and never to be carried before a court, does thus take away the trial by jury, and the security of having one’s liberty and property adjudicated upon by a “court,” and renders the writ of _habeas corpus_ an empty form, then, indeed, we may bid “farewell, a long farewell” to all our liberties. An unprincipled majority of Congress has only to pass a law that any man may be imprisoned or hanged on an executive warrant, and that the hireling marshal or commissioner shall suffer no “molestation by any process issued by any court, judge, magistrate, or other person whomsoever,” and despotic power will be enthroned here as effectually as it ever was in England in the bloody days of the Stuarts. Jeffries was at least a judge, though he acted like a commissioner.

Who could have imagined, eight months ago, that a _ministerial_ proceeding could put a citizen beyond remedy or reach of our _courts_?

I now come to a position in the commissioner’s argument which is not only transparently fallacious, but is contradicted by himself, in the same opinion, again and again. I shall offer a series of objections to it.

The point was pressed upon him by counsel that he was exercising “judicial power.” To maintain this, a passage was quoted from Prigg’s case, in which the court say, “A claim made by the owner out of possession for the delivery of a slave ... constitutes, in the strictest sense, a controversy between the parties, and a case arising under the constitution of the United States, within the express delegation of judicial power, given by that instrument.” Can any thing be more explicit and conclusive, to prove that the commissioner was then presuming to exercise a part of the “judicial power” conferred by Congress exclusively upon courts? And how does he answer it? In this way, and in this way only. He says the court decide two points:--

First,--That a claim for a fugitive slave is a case arising under the constitution of the United States, and so within the grant of “judicial power” as given by the constitution; and

Second,--“That being such a case, belonging to the judicial power of the Union, it was for Congress to regulate and prescribe the remedy, the form of proceedings, and the mode and extent in which the judicial power of the Union should be called into activity.”

He then declares his full admission of _both_ these propositions. And how does he answer the _first_ one, which, at a blow, unseats him from his usurped bench? He says, “The counsel for the prisoner have insisted most strenuously on the first of these positions, but have said nothing with regard to the second.” And what need had the counsel to say any thing about the second, _the first being admitted_? The supreme court had said, and he acknowledged it, that every case like the one then before him was a “case arising under the constitution of the United States, within the express delegation of judicial power given by that instrument.” This was equivalent to saying that it was a case which could not be adjudicated upon by a commissioner, because a commissioner is not a judge,--is no court nor part of a court. The plain statement of the commissioner’s language is this: The supreme court declare that I have no jurisdiction in this case; but because the counsel said nothing about another point to be found in the opinion of the court, therefore I will take jurisdiction.

But again; this reply of the commissioner, that the counsel said nothing about the second point, (when he had acknowledged the validity of the first, which was fatal,) is not merely an evasion; it is founded upon a false meaning attributed by him to the second point. He says the court held that it was “for Congress to regulate and prescribe the remedy, the form of proceedings, and the mode and extent in which the judicial power of the Union should be called into activity.” Suppose it was for Congress to do this. Might they not transcend their power when doing it? and does not his admission of the first point prove that they have transcended their power?--the very point then in question. The two things cannot stand together. If the trial of the issue, “fugitive slave or not,” be, “in the strictest sense,” “within the express delegation of judicial power given” by the constitution, then this ministerial commissioner cannot exercise it, and Congress cannot empower him to exercise it. Besides, the decision of the court was made in 1842. The law, whose constitutionality they had then under discussion, was passed in 1850. Did the court in ’42 declare, or could they declare, that any law _thereafter_ passed by Congress on this subject should be held constitutional? Did their decision act prospectively, and adjudge a law to be constitutional, which was to be passed eight years afterwards? So far from this, the points then under discussion,--namely, the power of a commissioner to adjudge a case more important than life or death, and the obligation of a commissioner to hear _ex parte_ evidence, and to be concluded by it when heard,--these questions did not come before the supreme court in ’42, and have never been before the supreme court at all. But because that court had said, years before, that it belongs to Congress to prescribe the mode of recovering fugitive slaves, _therefore_, says the commissioner, if Congress should vest this power in commissioners, (and in slave traders or pirates just as well,) it would be valid. And because the counsel did not answer this point, the commissioner decides an admitted point, conclusive in their favor, against them.

But this is not all. After declaring, in the first part of the opinion, his full conviction that the delivery of an alleged fugitive comes within “the express delegation of judicial power,” he uses, farther on, the following language: “It would seem,” says he, “that it only remains to inquire whether the act of 1850 authorizes or requires any thing more than a summary ministerial proceeding in aid of the right secured by the constitution, namely, the right of removal.” And he holds that it does not. The act which, in the first part of the opinion, was acknowledged to belong, “in the strictest sense,” to the “judicial power,” has now ceased to be “_any thing more_ than a summary ministerial proceeding.”

And again he says, “I have endeavored, in the foregoing discussion, to show that this is a summary ministerial proceeding,” &c. “If this be so, _and I can entertain no doubt that it is_,” &c. This sudden transmigration from a judge to an executioner, from one who acknowledged that the delivery of an alleged fugitive is an act of “judicial power,” to one who holds that it is NOT “_any thing more_ than a summary ministerial proceeding,” may suit a disciple of Pythagoras, or the priests of the Hindoo religion, but it ill becomes an expounder of American jurisprudence.

I proceed to another point in the commissioner’s decision, namely, the nature and authority of “judicial power;” and when I have discussed it, I shall submit to your good sense whether I do him any injustice in saying that it is most perspicuously fallacious and lucidly absurd.

“In all governments formed upon the English model,” says he, “there is a certain class of inquiries, [powers?] judicial in their nature, but which are confided to officers not constituting a part of the judiciary, strictly so called.” (I do not like this substitution of the word “inquiries” for “powers.” If any thing under heaven should be called a _power_, the prerogative of sending a human being, presumptively free, into bondage, is surely one.) He then instances certain officers in Great Britain, who, though not judges, perform, as he says, certain judicial functions. A brief remark will suffice for this. Great Britain, having no written constitution, the current of its legislative enactments and its judicial decisions makes its constitution. If, then, it has been the prevailing practice of that government to confer any given description of powers upon any given class of officers, then that is what the British constitution allows and approves.

But we have a written constitution, and therefore are not to tolerate a law, (as in the case of this Fugitive Slave law,) which is repugnant to its fundamental provisions. By this constitution, all legislative powers therein granted are vested in Congress; executive power in a President, and judicial power in the courts. The constitution of Massachusetts is equally explicit. It says, “In the government of this commonwealth the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.”

In both these constitutions, the three functions of government, namely, to legislate, to adjudicate, and to execute, are expressly recognized; and the _whole_ of their distinctive powers are lodged in separate departments. No mention is made of any hybrid or mongrel class, half judicial and half executive, or half ministerial and half judicial, or compounded of aliquot parts of each. Such an officer, under either constitution, would be a monster; he would hold the same relation to their legitimate functionaries that Caliban does to the human race; and, if created for executing the Fugitive Slave law, that half devil and half beast would be the fitting prototype.

The commissioner professes to have found a class of cases, both under our state and national constitutions, where powers, “judicial in their nature, and special in their purpose, may be confided to the determination of officers who are not judges.” On this point he has expended himself. Here lay the pressure and travail of his case. Seeing that, in deciding the great issue before him, “slave or free,” he was exercising judicial power, and in ordering an armed force to convoy the victim to his house of bondage he was exercising ministerial or executive power, (thus blending the functions which both constitutions have separated,) the commissioner felt that he must find some analogy or some precedent to cover up this obvious violation of all principle, or his argument was in ruins. It is in ruins; for he has found no such precedent, and cannot find any.

The instances he cites from Massachusetts are,--1. Sheriffs, who may preside over juries when assessing damages for laying out highways, and may decide such questions of law as arise on the trial; 2. Auditors, who may examine vouchers and state accounts between parties, and make report thereof to the court; 3. Commissioners of insolvency, appointed to distribute insolvent estates; and, 4. County commissioners, who lay out highways.

Now, nothing can be clearer than that, in no one of these cases does the officer named exercise “judicial power.” Indisputably, universally, and necessarily, by force of the phrase itself, the term “judicial power” embraces the idea of a _power_ whose decision can be enforced _in invitum_; that is, against an unwilling, contesting, resisting party. The sublime power of a court becomes nothingness, and is ridiculous, if its decrees cannot be executed to the very death of the party against whom they are made. For this purpose, they are backed by all the civil power of the state; and should this prove insufficient, they are backed by all the military power of the state; and, even beyond this, by the whole military and naval power of the United States. Without this, judges are but puppets, or no better than “men in buckram.” “Judicial power” does not consist in a sheriff’s presiding over a jury, nor in an auditor’s casting up accounts, nor in a commissioner’s ciphering out the dividends of an insolvent’s estate, nor in county commissioners’ laying out roads; but it consists in entering up a judgment which has the armories at Springfield and Harper’s Ferry, which has the standing army and militia of the United States, which has fifty line-of-battle ships, which has the treasury of the nation, to back it, and to visit with death one man, a thousand men, or a hundred thousand men, if need be, who shall confront it with resistance.

Look, fellow-citizens, at this wretched sophistry. The sheriff must make return of the verdict of the jury to the court of common pleas,--_which is a_ COURT,--and if either party suggests good grounds of dissatisfaction, the whole proceeding is a nullity, and the investigation must be made again; and again and again, and ten times again, until every act and letter of it become unexceptionable. The auditor must make his report to the court that appointed him, and if the court see cause, they set aside both it and him. The acts of the commissioners of insolvency derive all their validity from the consent of the parties, or from the judgment of a court, which substitutes the force of law for consent. And no act of the county commissioners, in taking a man’s land, is worth the paper it is written on, until the verdict of the jury is returned to the _court_ of common pleas, and there formally accepted and recorded. Nay, every intelligent farmer in the country knows the fact, that though the commissioners have laid out a new road, or ordered an old one to be shut up, still, if a party, feeling himself aggrieved, demands a jury, the former cannot be worked, nor the latter closed, until the _court_ of common pleas shall have passed upon the proceeding and ratified it.[23]

If, however, in all the above cases, the parties in interest _consent_ to the acts of sheriff, auditor, or commissioner, then those acts become binding, by virtue of such consent. The party consenting is afterwards estopped from questioning them. But they derive no authority from any “judicial power” vested in the officers performing them. We have a case more exactly in point, and better illustrating the principle, in the fourth section of the ninety-seventh chapter of our Revised Statutes, where it is provided, that “in actions upon promissory notes and other contracts, where the amount due appears to be undisputed, the debt or damages may be assessed and ascertained by the clerk, either under a general order of the court, or by a special reference of the case to him; and the judgment, in either case, shall be entered in the same form as if it had been awarded by the court, on an assessment or computation made by themselves.” Yet who will pretend that this act of the clerk, which is performed only where there is no dispute between the parties, emanates from any “judicial power” in that officer?

The instances cited under the United States constitution have, if possible, still less plausibility. The commissioners appointed by the courts can initiate certain proceedings, by holding parties to trial, &c., but this function is no more _judicial_ than that of the grand jury in finding an indictment. It is a preliminary to a judicial act, but not such an act. The commissioners are not even required to be sworn, and, in many instances, it is known they are not sworn.

So of the case of which so much is attempted to be made,--that of the commissioner of patents. Any party feeling himself aggrieved by any of his decisions can appeal directly to the courts of the United States for redress.

Compare all this with analogous instances in the legislative department of government. The legislatures of most of the states have created commissions to revise their codes of statute law. Massachusetts has had several such. Our revised statutes are a monument of the labor of one of these commissions. But were they legislators? _Was their proposed code of any validity until enacted by the Senate and House of Representatives?_ Just as much as the acts of sheriff, auditor, or commissioners of the different kinds, were acts of judicial power, and no more. Are the selectmen of our towns legislators, because they decide, in the first instance, who are elected as members of our House of Representatives? Are our governor and council legislators, in both the state and national governments, because, on an examination of votes transmitted to them by the selectmen, they issue certificates of election to our state senators and to the members of Congress elect? Do they exercise any part of that power which makes “each house the judge of the elections, returns, and qualification of its own members”? Just as much, I reply, as sheriff, auditor, commissioner, or clerk, does of “judicial power.” They perform acts preliminary or antecedent to legislation, but no legislative act; just as the above-named classes of officers perform acts preliminary or antecedent to judicial decisions, but never, in any case, the authoritative and compulsory judicial act itself.