SPEECH

Delivered in the House of Representatives of the United States, in Committee of the Whole on the State of the Union, February 28, 1851, on the Fugitive Slave Law.

Mr. Chairman;

Some time ago, I prepared a few comments upon those prominent measures of the last session, which have since arrested the attention of all the lovers of constitutional liberty, and of moral and religious men, throughout the civilized world. I am unwilling to suffer the present session to close without expressing the reflections I have formed; because I deem it but a reasonable desire that my opinions should be placed upon the records of the very Congress to whose measures they refer.

Does any one ask what benefit I anticipate from a discussion of this subject at the present moment? I answer, this benefit at least: that of entering a solemn protest against a grievous wrong, and of placing upon the tablets of my country’s history, what I believe to be the views of a vast majority of my constituents, in common with the vast majority of the people of Massachusetts.

Some of those compromise measures are destined to be of great historic importance. They will be drawn into precedent. When, in evil days, further encroachments are meditated against human rights, these old measures will be cited as a sanction for new aggressions; and, in my view, they will always be found broad enough, and bad enough, to cover almost any nameable assault upon human liberty. When bad men want authority for bad deeds, they will only have to go back to the legislation of Congress, in 1850, to find an armory full of the weapons of injustice.

Sir, legislative precedents are formidable things. If created without opposition, and especially if acquiesced in without complaint, they become still more formidable. Now, if there were no other reasons for reviving this subject at the present session of Congress, this alone would be an ample justification,—it forefends the argument from acquiescence.

When several of these measures were passed, and particularly when one of the most obnoxious and criminal of them all was passed,—I mean the Fugitive Slave bill,—this House was not a deliberative body. Deliberation was silenced. Those who knew they could not meet our arguments, choked their utterance. The previous question, which was originally devised to curb the abuse of too much debate, was perverted to stop all debate. The floor was assigned to a known friend of the bill, who after a brief speech in palliation of its enormities, moved the previous question; and thus we were silenced by force, instead of being overcome by argument. For, sir, I aver, without fear of contradiction, that the bill never could have become a law, had its opponents been allowed to debate it, or to propose amendments to it. For the honor of the country, therefore, at the present time, and for the cause of truth hereafter, it is important that the hideous features of that bill, which were then masked, should be now unmasked. The arguments which I then desired and designed to offer against it, I mean to offer now. Those arguments have lost nothing of their weight by this enforced delay, and I have lost nothing of my right to present them.

Mr. Chairman, I feel none the less inclined to discuss this question, because an order has gone forth that it shall not be discussed. Discussion has been denounced as agitation, and then it has been dictatorially proclaimed that “agitation must be put down.” Sir, humble as I am, I submit to no such dictation, come from what quarter or from what numbers it may. If such a prohibition is intended to be laid upon me personally, I repel it. If intended to silence me as the representative of the convictions and feelings of my constituents, I repel it all the more vehemently. In this government, it is not tolerable for any man, however high, or for any body of men, however large, to prescribe what subjects may be agitated, and what may not be agitated. Such prescription is at best but a species of lynch law against free speech. It is as hateful as any other form of that execrable code; and I do but express the common sentiment of all generous minds, when I say that for one, I am all the more disposed to use my privilege of speech, when imperious men, and the sycophants of imperious men, attempt to ban or constrain me. In Italy, the pope decides what books may be read; in Austria, the emperor decides what books may be written; but we are more degraded than the subject of pontiff or Cæsar, if we are to be told what topics we may discuss. If the subjects of a despotic government are bound to be jealous even of the poor privileges which they possess, how sensitive, how “tremblingly alive all o’er” ought we to be at these threatened encroachments upon freedom of speech and freedom of thought. I think that those who say so much about recalling us to a sense of our constitutional obligations, would do well to remember, that the very first article of the amendments to the constitution secures the freedom of speech and the freedom of the press. By the common consent of this country, manifested in all forms for more than half a century, the old alien and sedition law has been condemned. Has that law been condemned for fifty years in order to make our shame more conspicuous by its revival under circumstances of intolerable aggravation? Sir, I hold treason against this government to be an enormous crime; but great as it is, I hold treason against free speech and free thought to be a crime incomparably greater.

If it be just and heroic to rebel against all arbitrary invasions of free thought and free expression, then is it not proportionably base and dastardly to utter menaces, or threaten social or political disabilities for the unconstrained exercise of these birthrights of freemen? On the face of it, it must be a bad cause which will not bear discussion. Truth seeks light instead of shunning it. He convicts himself of wrong who refuses to hear the arguments of his opponent. It was well said by Montesquieu, that “the enjoyment of liberty, and even its support and preservation, consists in every man’s being allowed to speak his thoughts and lay open his sentiments.” Wherefore, then, in a country hitherto reputed to be free, are we told that discussion must be stopped, and agitation must be put down? It seems as if, when a freeman debases his soul by lending himself to the defence of slavery, God punishes him on the spot by demoralizing his own nature with that spirit of tyranny which belongs to slavery. Wherein consists the advantage of a republican government over a despotism, if the freedom of speech and of the press, which can be strangled in the one by arbitrary command, can be stifled in the other by obloquy and denunciation?

It is remarkable, too, that of all the “agitators” in the country, there are none more violent than those who are agitating against agitation. Throughout the north, that portion of the public press which volunteers its influence to extend the domain of slavery, and to maintain it by extra-constitutional laws, is constantly provoking the agitation it denounces. What are these so-called Union meetings in northern cities but an extensive apparatus of agitation,—a piece of machinery to manufacture and send abroad the very articles which its managers declare to be contraband? Through public assemblies, through the public press, and by correspondence designed for the public eye, they are shaking the common air to keep it calm; they are agonizing and in convulsions for repose; they are vociferating to maintain silence. In the most clamorous days of anti-slavery, there never was half so much said and written against the institution as is now said and written for it. Sir, is the right of agitation to be monopolized by those who denounce it? Is free speech to be only on one side; and is it one of the offices of free speech to silence the sentiments it dislikes? I think this is the second time in the history of this country, that an attempt has been boldly and unblushingly made to stifle free discussion; and I do not believe the fate of those who are now laboring to accomplish so nefarious a purpose will be historically more enviable than that of their prototypes, who passed the far-famed law against seditious speeches and writings.

Is it not extraordinary, too, that this interdict on discussion should be applied to a subject which touches the highest interests of man, and calls into fervid action all the noblest faculties of his nature; which, more than any thing else, tests the question whether a man is man? We may discuss the question of bank or sub-treasury, of tariff or free trade; but the only subject too sacred to be approached, is slavery and its aggrandizements. This is a free country, except when a man wishes to vindicate the claims of freedom. All other parts of the temple may be entered, but slavery is the ark of the covenant, and whoso lays his profane hands thereon must perish.

Sir, how comes it to pass that an institution which even the enlightened heathen of old pronounced to be iniquitous, and which eighteen added centuries of Christian illumination have proved to be the sum of offences against God and man, should now be protected, not merely by constitutions and laws; but that a general warfare should be waged against all those who would restrain it within its present limits, and keep it from arming itself with new weapons of oppression? How comes it to pass that this should be done, not in the despotisms of Austria and of Russia, but in republican America? Sir, it is not to be done, and cannot be done. Almighty God has so constituted the human soul, that while wrong exists upon the face of the earth, all the noblest impulses of that soul will war against it. The order of nature will war against it. “The stars in their courses” will war against it. Discussion, or agitation, if you so please to call it, is one of the Heaven-appointed means by which truth is to be spread until it covers the face of the earth, as the waters cover the sea. It was by discussion and by agitation, in synagogue and in temple, in distant cities and in different empires, that Christianity was carried from its cradle in Jerusalem to the ends of the earth. Did not the disciples of Jesus Christ go “agitating” from city to city, from Palestine to Greece, and from Greece to Rome, notwithstanding they were imprisoned and scourged, flayed alive, and burnt, and persecuted as incendiaries and fanatics, by scribe, and Pharisee, and high priest? The very accusation brought against the Savior was, “He stirreth up the people, teaching throughout all Jewry, beginning from Galilee to this place.” The subject on which anti-slavery men now “agitate” is inferior only in importance to that on which Christ and his disciples “agitated.” Nay, the only cause why Christianity has not prospered as it ought during the last eighteen centuries, and why it has not already overspread the whole earth with its blessings, is, that LIBERTY has not been given it as a sphere to work in. It is because SLAVERY has existed among men; and Christianity never will and never can pervade the earth until the barriers of slavery are first overthrown. It was by discussion and agitation that the prevailing religion of this country,—the Protestant religion,—broke through the double phalanx of civil and sacerdotal power, and triumphed throughout the leading nations of Europe, under the indomitable energy of that old hero of Wittemburg, who did not heed nor fear that prince of the slave power, the incarnate devil himself. It was by discussion and agitation that the first glowing sparks of liberty in the bosom of the Adamses, of Hancock, and of Franklin, of Thomas Jefferson and of Patrick Henry, were fanned into a flame that consumed the hosts of the tyrant,—that tyrant who sought to put down this dreadful agitation by means not a whit more reprehensible in his day, than those by which certain leading men are striving to silence it now. Where was there ever written or published a more incendiary and fanatical document than the Declaration of Independence?—a torch to set the world on fire. In the present century, what but discussion and agitation, through all the realms of Great Britain and in this country, could have sufficed to extinguish the slave trade,—that foulest blot upon modern civilization? No, sir; agitation is a part of the sublime order of nature. In thunder, it shakes the stagnant air, which would otherwise breed pestilence. In tempests, it purifies the deep, which would otherwise exhale miasma and death. And in the immortal thoughts of duty, of humanity, and of liberty, it so rouses the hearts of men that they think themselves inspired of God; and not the mercenary clamor of the market-place, nor the outcries of politicians, clutching at the prizes of ambition, can suppress the utterances which true men believe themselves Heaven-commissioned to declare.

The President’s message tells us that the compromise measures of the last session are “FINAL.” I take the liberty to say of that declaration in the message, with all due respect to the high source from which it comes, that I adopt the sentiment, that those measures are final, in one sense only. Their substance and object were, in an extreme degree, pro-slavery and anti-liberty. They marked the passage of this government through another long stage in the gloomy highway of oppression. They furnished another argument for those who despair of human nature; and they supply the misanthrope with a plausible reason for hating mankind. They affixed another stain upon the country, and set in deeper shade the contrast between the theory of our government and its practice. They belied still another time the gospel of love and human brotherhood. Once again they defied the vengeance of God, who is no respecter of persons, and who will bring the sinner to judgment. If such measures are to be “final,” in this sense only do I accept the proposition,—that they are to be the last of their kind; that here, at this point, the career of this iniquity is to be stayed; that here, the confederated powers of ambition and of wealth,—of those who aspire to office and those who lust for gold, have won their last victory. In this sense only do I accept the President’s declaration, that the action of the last Congress on this subject is to be deemed final;—that, in all future conflicts, the right shall not be trampled under foot, but the victims of oppression shall triumph. Base as human nature often proves itself to be, it sometimes manifests a divine resilience by which it springs with recuperative energy from its guilty fall.

I draw no augury of despair from the calamity that has befallen us. It teaches whatever there is of virtue and of principle in mankind, the task which has been set them to do, and whose accomplishment God will require at their hands.

It has been said by the Secretary of State, in a late speech, that if this subject be reöpened in Congress, the friends of freedom will be found in a “lean and miserable minority.” What cares my conscience, sir, whether I am in a minority or a majority, if I am right? Has any great and glorious cause ever been started upon earth, that did not find itself, at the outset, in a minority? Did Clarkson and Wilberforce open their twenty years’ contest with a majority? or were not all the office-seekers and mammon-worshippers opposed to them? Did the resistance of the revolutionary patriots to the government of Great Britain start with a majority on its side? Did the Pilgrim fathers resist conformity to ecclesiastical oppression because they were a majority of the people? Did the glorious band of reformers count on majorities, when they defied the racks and the flames of Rome? What would now be our condition if the prophets and heroes of olden days, if the warriors for truth and the martyrs of liberty, all over the earth, had yielded to so base an argument as this, and had followed the multitude to do evil, instead of battling for the truth, though it were solitary and alone? I can conceive of but one effect which such a sentiment must produce upon all noble and truth-loving men. It is to make them labor for the right with a zeal commensurate with the infinite baseness of the appeal by which they are urged to abandon it.

But I come now, Mr. Chairman, to the main topic of my remarks, which is a consideration of the character of the Fugitive Slave law, passed on the 18th day of September last.

The objections most generally urged against this law are of two kinds:

1st. That it is unconstitutional; and

2d. That, even if the framers of the constitution did leave an unguarded opening, through which such a law could be introduced without a breach in the structure of that instrument, still, that it is a cruel law, that it discards all those principles of evidence and forms of proceeding which have been devised by the wisdom of ages for the protection of innocence against power, and that in its whole scope and spirit it is in conflict with our fundamental ideas of human liberty.

It will be seen by this statement, that I here accept the constitution according to its commonly-received interpretation. There is a class of defenders of this law whom I wish to meet on their own ground. I do not, therefore, object here to the constitution as they understand it, but to the law. However much a man may reverence the constitution, though he may make it an idol and worship it, yet I mean to show him that this law is an unholy thing in its presence. I object, then, to the law as a departure from the constitution,—not a departure towards despotism merely, but into despotism. Admitting, what many deny, that when the constitution speaks of “persons held to service or labor,” it means slaves, and admitting that it provides for their reclamation when it says they “shall be delivered up on claim,” I still impeach the Fugitive Slave law for high crimes and misdemeanors against the spirit and the letter of that instrument.

On the question of the constitutionality of this law, the legal minds of the country are divided. It may not be easy to distribute opinions correctly, on this point, into their proper classes, and to decide upon their relative preponderance. If we include slave owners and those whose pecuniary interests connect them directly with slavery, and especially if to those we add a strong party who, from political associations and hopes, have surrendered themselves to a pro-slavery policy, probably the number, if not the weight, of opinion, is in favor of the constitutionality of the law. But if we gather the opinions of disinterested and unbiased men; of those who have no money to make or office to hope for through the triumph of the law, then I think the preponderance of opinion is decidedly the other way. I know it has been said by one prominent individual, that he has heard of no man, whose opinion was worth regarding, who denied the constitutionality of the law. Now, as it is a fact universally known, that gentlemen who have occupied and adorned the highest judicial stations in their respective states, together with many of the ablest lawyers in the whole country, have expressed opinions against the constitutionality of this law, I have but one single word of reply to a declaration so arrogant and insolent as this. That reply is, that on a great moral and political, as well as legal question,—a question that connects itself with ethics, as well as with partisan politics, and the success of old parties or the formation of new ones,—integrity is as necessary to the formation of a sound opinion as intelligence.

I think, however, that one further remark should in candor be made, in regard to the difference of opinions held by honest men on this subject. The constitutionality or unconstitutionality of the Fugitive Slave law is not a question to be determined solely by any single and simple provision of the fundamental law. Numerous clauses in the constitution have a bearing upon it. It connects itself with contemporaneous history. It presents a case where commentators and expounders must appeal to precedents and analogies, and to general principles respecting the nature of government and the object of all law. It is therefore a question of construction and interpretation. And, what is a more important consideration still, it belongs emphatically to that class of cases where men, who have been trained under one class of institutions, and whose minds have been moulded and shaped by the universal prevalence of one set of opinions and one course of practice, may honestly come to one conclusion, while those who have grown up under adverse opinions and an adverse practice,—or rather, into whose minds adverse opinions and adverse practices have grown, until they have become a part of the very substance of those minds,—may honestly come to an opposite conclusion. We know, too, that in addition to the powerful influences of education and training, the general cast and structure of men’s minds predispose them to take one side or the other of great political and religious questions. Natural biases operate like a law of gravitation to sway different minds in different directions. When, therefore, a southern gentleman, into whose perceptions and reasonings and moral sentiments, the facts and the creed of slavery have been incorporating themselves ever since he was born, tells me that he believes even such a law as this to be constitutional, I can still concede the fulness of his integrity, however strongly I may dissent from the soundness of his opinion. It is a law that might be held constitutional by a bench of slaveholders, while it would be held unconstitutional by all the inhabitants of a free land. It is a law that might be held valid by the courts of Austria, while it would be held invalid by those of England. It is a law which the judges of Westminster Hall might have held valid in the time of the Stuarts, which they might and probably would have held invalid in the eighteenth century; and, in the nineteenth century, would certainly have reprobated and annulled.

My own opinion is, in view of the great principles of civil liberty out of which the constitution grew, and which it was designed to secure, that this law cannot be fairly and legitimately supported on constitutional grounds. I express this opinion because, after having formed it with careful deliberation, I am now bound to speak from it, and to act from it. I have read every argument, and every article in defence of the law, that I could find, from whatever source emanating. Nay, I have been more anxious to read the arguments made in its favor than the arguments against it; and I think I have seen a sound legal answer to all the former. As for any arrogant or supercilious dictum, either that the law is constitutional or that it is not constitutional, unaccompanied by any reason or any reference, all reflecting men must regard it as sheer insolence, come from what quarter it may.

Even should the supreme court of the United States declare the law to be constitutional, then, though we must acknowledge their decision, as to the point decided, to be the law of the land, until it is set aside, yet, without any disrespect to that tribunal, we may still adhere to our former opinion. We know how that court is constituted. A majority of its members are from slaveholding states. Independent, too, of all other considerations, they will feel a strong desire to maintain a former opinion, which was also given when a majority of its judges were from the south. We may, therefore, place our dissent on grounds which, two years ago, when the “Clayton compromise,” so called, was under discussion, were so well stated by a distinguished senator from Ohio, [Mr. Corwin,]—grounds perfectly respectful on our part, and not derogatory to the court. He said,—

“It is a sad commentary upon the perfection of human reason, that, with but few exceptions, gentlemen coming from a slave state ... all eminent lawyers on this floor, from that section of the country, have agreed that you have no right to prohibit the introduction of slavery into Oregon, California, and New Mexico; while, on the other hand, there is not a man, with few exceptions, (and some highly respectable,) in the free states, learned and unlearned, clerical or lay, who has any pretensions to legal knowledge, but believes in his conscience that you have a right to prohibit slavery.... How is this? Can I have confidence in the supreme court of the United States, when my confidence fails in senators around me here? Do I expect that the members of that body will be more careful than the senators from Georgia and South Carolina to form their opinions without any regard to selfish considerations?”

Besides, the supreme court have already, as I will show, decided certain points in such a way that, if they maintain the Fugitive Slave law, they will be obliged to overrule those points; and it is more creditable to them to suppose they will overrule their decision in Prigg’s case, than to suppose they will overrule other decisions in other cases.

In the first place, I believe the constitution not only authorizes but requires a trial by jury, in the case of alleged fugitive slaves, when claimed in free states.

The constitution declares, “The right of the people to be secure in their persons,” “against unreasonable” “seizures, shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing” “the persons or things to be seized.”—Amend., Art. IV.

It also declares, that, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”—Amend., Art. VII.

And it also says, “No person shall be deprived of life, liberty, or property, without due process of law.” Amend., Art. V. And it is most important to observe that these words, “due process of law,” are held by all the authorities to include the trial by jury.—3 Story’s Com. 661; 2 Inst. 50, 51; 2 Kent’s Com. 10; 1 Tucker’s Black. App. 304-5.

That there may be no doubt about the meaning and force of these words, I quote the following passage from Chancellor Kent:—

“It may be received as a self-evident proposition, universally understood and acknowledged throughout the country, that no person can be taken or imprisoned, or disseized from his freehold, or liberties, or estate, or exiled, or condemned, or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers. The words, ‘by the law of the land,’ as used by the Magna Charta, in reference to this subject, are understood to mean ‘due process of law.’ That is, by indictment or presentment of good and lawful men.”—2 Com. 13.

Now, in most of the cases which will arise under the Fugitive Slave law, there will be a “seizure” under a warrant; and in all the cases, the questions both of property and of liberty will necessarily be involved. In every case, the claimant will aver property in the respondent, and will seek to deprive him of his liberty. The respondent will deny the claim of property, and will seek to retain his liberty.

Now, suppose a man to have lived in Boston or New York for twenty years; to have contracted marriage; to have bought and sold; to have hired himself out to others, and to have hired others to serve him; to have pleaded and been impleaded in the courts; to have voted at elections, and to be, in all respects, as free by the constitutions of Massachusetts and New York as the governors of those states themselves; and suppose further, that this man is suddenly seized and taken before a commissioner, is adjudged the property of another man like himself, with no chance of revising the decision, or of having a new trial, is placed in duress, and then transported by force, and against his will, to a distant state, under a claim that he is a slave, and an adjudication that such claim is true,—suppose all this, I say, and then answer me this simple question, Has, or has not, such a man been “deprived of his liberty”? In other words, does such a man retain his liberty? As he is borne away by force, and against prayers, and tears, and struggles, does he remain free? Can a man be adjudged a slave; held, coerced, beaten as a slave; with all his powers and faculties of body and mind subdued and controlled as a slave’s, and yet possess or retain liberty? If such a proceeding does not deprive a man of his freedom, by what means can he be deprived of it? What more, or what other thing would you do to deprive him of it? Would binding him out to serve for life deprive him of it? This declares that he owes service for life. Would imprisonment deprive him of it? This imprisons him, and makes the man his keeper who is interested to make that imprisonment perpetual in himself, and descendible to his children, and his children’s children forever.

Is not perpetual imprisonment of the nature and substance of punishment,—of the severest punishment? The constitution has provided that “cruel and unusual punishments shall not be inflicted,” even for the perpetration of the worst of crimes; yet here is a case where the most cruel of punishments, or of privations, may be inflicted without even a charge of crime. And the argument is, that this form of punishment may constitutionally be inflicted, because it was so inconceivably atrocious and diabolical that the constitution did not prohibit it,—because the constitution only prohibited “cruel and unusual punishments” for crimes, and not for having a dark skin.

Does any one say that a victim of this law has not been “deprived” of his liberty because he may sue for it, and possibly recover it, in the courts of the state to which he is carried? I reply, that it would be just as good an answer to say, that he may possibly recover his liberty by escape, or possibly his master may emancipate him, or possibly a St. Domingo insurrection may break out, or possibly the walls of his prison-house may be shaken down by an earthquake, and he may go forth like Paul and Silas; and therefore he is not deprived of his liberty by being enslaved. Neither of these events would have the slightest legal relation to the proceedings which did enslave him. Neither of them would be retroactive, undoing or annulling the past. Enslavement and liberty being incompatible, when he suffers the first, though but for an hour, he is deprived of the last. The moment he should arrive within the limits of a slave state, that moment he would be in the same condition as three million other fellow-bondmen; and it would be just as rational to say that they have never been deprived of liberty as that he has not. When our government made war upon Algiers, ransoming American captives from their horrible bondage and restoring them to their homes, did it annihilate the preëxisting fact that they had been enslaved? Did it enable or authorize the historian to say that they had never been deprived of their liberty? Had Algiers been “reännexed” as one of the states of this Union, could she have said, “We have not broken the constitution because these men are free again”? I affirm, then, that when a man in Massachusetts, who by the constitution of Massachusetts is free, is adjudged to be a slave, is transported as a slave, and held as a slave, in a southern state, though it be but for a single day, he is deprived of his liberty. That very thing is done to him which the constitution says shall not be done but by a jury of his peers.

But a question of PROPERTY is involved as well as a question of liberty. “In suits at common law,” says the constitution, “where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”

Now, sir, in regard to this important clause in the fundamental law, I propose to demonstrate the three following propositions:—

First; the claim, made before a competent magistrate, for a “person held to service or labor,” is, in view of this constitutional provision, a “suit.”

Second; it is a “suit at common law.”

Third; it is a suit at common law “where the value in controversy exceeds twenty dollars.”

As a law term, the lexicographers define the word “suit” to mean “an action or process for the recovery of a right or claim; legal application to a court for justice; prosecution of right before any tribunal;—as a civil suit, a criminal suit, a suit in chancery.”

Blackstone says, “in England, the several suits, or remedial instruments of justice, are distinguished into three heads,—actions, personal, real, and mixed.”

“Suit” comes from “secta,” and secta from sequor; and the phrase “to bring suit,” denoted anciently, to bring secta,—followers, or witnesses, to prove the plaintiff’s demand. The scope of the word is now enlarged, so that it embraces the written forms by which an action is instituted, as well as the proof which sustains it.

We are not, however, confined to the authority of the dictionary. The supreme court, in the case of Cohens vs. Virginia, 6 Wheat. 407, where this very word “suit,” as it occurs in the constitution, was the subject of consideration, defined it as follows:—

“What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand, in a court of justice. ‘The remedy for every species of wrong is,’ says Judge Blackstone, ‘the being put in possession of that right whereof the party injured is deprived.’ The instruments whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta express it, in the words of Justinian, ‘jus prosequendi in judicio quod alicui debetur,’—(the form of prosecuting in trial, or judgment, what is due to any one.) Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which it has a right.

“To commence a suit, is to demand something by the institution of process in a court of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue that demand.”

Now let me take the different clauses of this definition, and see if every one of them does not necessarily include the demand made by a slave claimant against the alleged slave.

“We understand a suit,” say the court, “to be the prosecution or pursuit of some claim, demand, or request.” Here, then, according to the supreme court, a suit is the prosecution of some claim; and, according to the very letter of the constitution, the fugitive slave is to be delivered up, on claim. The slave, then, can be constitutionally and legally “delivered up” in no other way than “on claim,” by “suit.”

Again, say the court: “In law language, it [a suit] is the prosecution of some demand in a court of justice.” When legal process is instituted for the recovery of a slave, is it not the prosecution of a demand? And will any one be rash enough to say that a man ostensibly free,—free according to all legal presumption,—can be “delivered” over to bondage for life, without the intervention of “a court of justice”?

To proceed with the opinion of the court: “The Mirror defines a suit to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta express it, in the words of Justinian, it is the form of prosecuting in trial, or judgment, what is due to any one.” Here service is alleged to be due; and the one who is said to owe that service is “prosecuted by trial and judgment,” that he may render the service claimed.

“To commence a suit is to demand something by the institution of process in a court of justice; and to prosecute the suit is, according to the common acceptation of language, to continue that demand.” In the appeal to a court for the possession of an alleged fugitive, is not something “demanded”? And what is the warrant that is issued for his arrest but the “institution of process”?

If any one, then, will show that a “claim” for an alleged fugitive, by process of law, to be followed up by proof in support of the claim, and to be consummated by judgment, is not a “suit,” he must show that it is not “the prosecution or support of a claim;” he must show that it is not “the prosecution of some demand in a court of justice;” he must show that it is not “the lawful demand of one’s right;” nor “the form of prosecuting in trial or judgment;” and finally, he must show that it is not “to demand something by the institution of process in a court of justice,” and then “to continue that demand” until judgment is rendered for or against him.

But should the claimant of a fugitive slave show any one of these four things, he would show himself the way out of court.

And this brings me to the second proposition, namely,—

The claim for a person “held to service or labor” is, in view of the constitution, a “suit at common law.”

In a decision bearing directly on the right to a trial by jury, the supreme court has defined the phrase “suits at common law,” in special reference to its meaning in the seventh amendment to the constitution, where the right to such trial, “in suits at common law,” is secured. These are their words:—

“It is well known that in civil causes, in courts of equity and admiralty, juries do not intervene; and that courts of equity use the trial by jury only in extraordinary cases, to inform the conscience of the court. When, therefore, we find that the [seventh] amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By common law they meant, what the constitution denominated in the third article, ‘law;’ not merely suits, which the common law recognized among its old and settled proceedings; but suits, in which legal rights were to be ascertained and determined, in contradistinction to those in which equitable rights alone were recognized, and equitable remedies were administered, or in which, as in the admiralty, a mixture of public law, and of maritime law and equity, was often found in the same suit. Probably there were few, if any states in the Union, in which some new legal remedies, differing from the old common law forms, were not in use; but in which, however, the trial by jury intervened, and the general regulations, in other respects, were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited, as examples, variously adopted and modified. In a just sense, the amendment, then, may well he construed to embrace all suits, which are not of equity or admiralty jurisdiction, WHATEVER MAY BE THE PECULIAR FORM WHICH THEY MAY ASSUME TO SETTLE LEGAL RIGHTS.”—Parsons vs. Bedford, 3 Peters’s Rep. 456-57.

Here the court say, that the term “common law,” in the seventh amendment, meant what the constitution denominated in the third article, “law.” The word “law” which is here referred to, as contained in the third article, occurs in the following sentence: “The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States,” &c. And the court declare that the constitutional right to a jury trial embraces “not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined,” in contradistinction from equity and admiralty cases.

And in the last sentence of the decision quoted, the court expressly say, that the seventh amendment embraces “all suits which are not of equity or admiralty jurisdiction, WHATEVER MAY BE THE PECULIAR FORM WHICH THEY MAY ASSUME TO SETTLE LEGAL RIGHTS.” The court say “ALL.” After excepting cases of equity and admiralty jurisdiction, they declare that the phrase, “suits at common law,” embraces all the rest. They recognize no hybrid class, not included under one or another of these heads.

Now it has been proved above, that a warrant for the arrest of an alleged fugitive, together with the allegations and proofs under it, constitute a “suit.” And can any thing be more clear, than that a proceeding which decides the issue, whether a man “owes” or does not “owe;” which decides the issue, whether a man has “escaped,” or has not “escaped;” and which, as the legal consequence of these decisions, delivers one man into the custody of another as his slave, or enlarges one man from the custody of another because he is not his slave, is, “whatever peculiar form it may assume,” a proceeding “to settle a legal right,”—one of the highest and most important legal rights that appertain to a man? It is not, in legal language, a right “of equity or admiralty jurisdiction,” but exclusively and purely a legal right, and nothing else.

The court declare this to be so, whatever peculiar form the process may assume. But what gives peculiar pertinency and stringency to this decision of the court is, that at common law there was an original writ, called the writ de homine replegiando,—the writ of personal replevin, or for replevying a man, by which the question of property in a man might be determined. It was a writ which the party could sue out of right; one to be granted on motion, without showing cause, and which the court of chancery could not supersede. In the very language of the supreme court, it was a writ recognized by the common law, and is to be found “among its old and settled proceedings.” The form of it is contained in that great arsenal of common law writs, the Registrum Brevium.

“A man,” says Comyn, “may have a homine replegiando for a negro, or for an Indian brought by him into England and detained from him; or it may be brought by an infant against his testamentary guardian; or by a villein against his lord.”—(Dig., title Imprisonment, L. 4.)

If this writ could be brought “for a negro,” or “for an Indian,” by a man who had introduced him into England, and from whom he had been detained; and if, on the other hand, it could be brought by the negro, or by the Indian to gain his freedom, as was clearly the case, then it follows that the question of a right to a man, as well as that of human freedom, was a question familiar to the ancient common law, and for the trial of which a well-known process existed “among its old and settled proceedings.” But this ancient writ, de homine replegiando, carries with it, as every body knows, the trial by jury, as much as an action of assault and battery, or of assumpsit on a promissory note.

I have always understood, that before the revolution, and before the framing of our constitution, Comyn’s Digest, from which the above citation is made, was a work of the highest authority. It must have been well known to all the lawyers in the convention. Could they have intended that the mere fact of claiming a man as a slave,—which claim might be made against a freeman as well as against a slave,—should be sufficient to deprive him of this ancient muniment of the subject’s liberty? It seems impossible!

But we are not left to the broad and general assertion, contained in the case of Parsons vs. Bedford, that the seventh article of amendment embraces “all suits” not of equity or admiralty jurisdiction, whatever the peculiar form which they may assume to settle legal rights. Authority exists still more pointed and direct. In Baker vs. Riddle, Mr. Justice Baldwin, one of the judges of the supreme court of the United States, held that it was not in the power of Congress to take away the right of trial by jury, as secured by the seventh amendment; neither,—

“1. By an organization of the courts in such a manner as not to secure it to suitors; nor,

“2. By authorizing the courts to exercise, or their assumption of, equity or admiralty jurisdiction over cases at law.”

“This amendment,” says he, “preserves the right of jury trial against any infringement by any department of the government.”—Baldwin’s Rep. 404.

Now, what are the tribunals created by the Fugitive Slave law but a new “organization of the courts”? or rather, the creation of new courts, “in such a manner as not to secure, [the right of trial by jury,] to suitors?” By it, Congress creates tribunals unknown to the common law, and purports to give them power over common law rights.

Having now proved, from the nature of the claim in controversy,—namely, the claim of one man to the personal services and the liberty of another man, and the counter claim of personal liberty and of self-ownership,—that the right in dispute between the claimant of an alleged fugitive, and the person claimed, is a common law right; and that any legal process to determine this right, “whatever form it may assume,” is a “suit at common law,” it only remains, under this head, to establish my third point, namely;

A claim to any person, as one “held to service or labor,” always and necessarily presumes that “the value in controversy exceeds twenty dollars.”

On this point, direct authority may be found in the case of Lee vs. Lee, 8 Peters’s Rep. 44. This was an appealed case, where by law no appeal could be taken unless “the value in controversy” should be “one thousand dollars or upwards.” It was objected that the appellants,—the petitioners for freedom,—were not worth a thousand dollars. But the court said,—

“The matter in dispute, in this case, is the freedom of the petitioners. The judgment of the court below is against their claim to freedom; the matter in dispute is, therefore, to the plaintiffs in error, the value of their freedom, and this is not susceptible of a pecuniary valuation. Had the judgment been in favor of the petitioners, and the writ of error brought by the party claiming to be the owner, the value of the slaves as property would have been the matter in dispute, and affidavits might be admitted to ascertain such value. But affidavits estimating the value of freedom are entirely inadmissible, and no doubt is entertained of the jurisdiction of the court.”

Suppose there are two claimants for the same alleged fugitive? If his market value exceeds twenty dollars, both of them have a clear right to the trial by jury. And can it be that a man’s right to his own freedom cannot be tried by a jury, when, if two men dispute about his value, each may claim the jury trial, and cannot be denied?

On the three points, then, 1. What constitutes a common law or “legal right;” 2. What constitutes “a suit at common law,” and 3. What constitutes “a value which exceeds twenty dollars,”—namely; the personal liberty of any human being, though he be an infant just born, or a drivelling idiot, or he be stretched upon his death bed with only another hour to breathe,—I trust I have made out a case which entitles a party to trial by jury under the constitution of the United States.

I might here rest the argument, feeling that, from authority and from reason, from the old and time-honored principles of the common law, as well as from those interpretations of the constitution which have been given by the supreme court, my conclusions are impregnable. But I proceed to notice some of the points taken on the other side; and if I shall occasionally advert to positions that are obviously too shallow and fallacious for discussion, it is only because I wish to omit nothing which any one may think of importance.

It is alleged that the whole force of the above argument, otherwise conclusive, is annulled, because a slave is no party to the constitution, is not under its protecting shield any more than a horse or an ox, and therefore, any provisions, however strong, securing the jury trial, are inapplicable to him. A slave, it is said, is not one of the “people” by whom and for whom the constitution was formed. He is an outlaw, and an outcast. He has no inherent or inalienable rights as a man. What he has, he has ex gratia, by the good will of those who own him, body and soul, and who are graciously pleased to forego some of their legal rights from generosity in themselves, and not from justice to him.

Now, as it seems to me, a most obvious principle confutes this argument utterly. By the laws of the free states, we know no such being as a slave. Our courts, in their functions as state courts, do not understand the meaning of the word slave. To talk to them in that capacity about a slave or slavery, is talking to them in an unknown tongue. In the eye of the legislators of the free states, and in the eye of the courts of the free states, so far as their domestic polity is concerned, there can be no such creature as a slave. The constitution of every free state in this Union must be first altered, before any such being as a slave, or any such condition as slavery, can be recognized under them, as state authorities.

So the constitution of the United States creates no slaves, and can create none. Nor has it power to establish the condition of slavery any where. And I hold further, that if the government of the United States, by escheat, by purchase, by execution against a debtor, or in any other way, should become possessed of a slave, that moment he would be free. The government of the United States can neither hold a slave, nor make valid title to a slave by sale. It is a government whose powers consist of the grants that have been made to it; and nowhere, by no competent party, has any such grant ever been made.

The relation of the government of the United States to slavery consists in this, and in this alone: that when this government was created, slavery existed in a portion of the states; and by certain provisions in the constitution, the existence of this slavery was recognized, and certain rights and duties in relation to it were respectively acknowledged and assumed. But the government of the United States has no more power to turn a freemen in a free state into a slave than it has to turn a slave in a slave state into a freeman.

The officers of the state government being sworn to support the constitution of the United States, the governments of the free states are implicated indirectly in the matter of slavery, as the government of the United States is directly, and not otherwise.

Both by the constitution of the United States, then, and by the constitutions of all the free states, every man found within the limits of a free state is prima facie FREE. No matter what complexion he may wear, or what language he may speak, he is a free man UNTIL some other civil condition is proved upon him, or until he forfeits his freedom by crime. Every man, therefore, in any one of the free states of this Union, has a right to stand upon this legal presumption, and to claim all the privileges and immunities that grow out of it until his presumed freedom is wrested from him by legal proof. It is the most cruel of sophisms to say, that because a man is claimed as a slave, he is not under the protection of the constitution, and then to prescribe a base mode of trial for him, by which he can be proved the thing he is claimed for. On the subject of freedom or slavery, we of the free states know of but one class of men living among us. That class is free. There is no such class as slaves known to our laws. Nor is there any intermediate class, who may be presumed to be slaves on account of their color, or who may be proved to be slaves by less evidence, or by an inferior kind of evidence, because of color.

No axiom is more universal or indisputable, than that the right to freedom in a free state, and the right to be held and treated by the courts as a freeman, has no relation to complexion. If, then, these rights have no relation to complexion, all white men may be arbitrarily presumed to be slaves, and be deprived of the form of trial, secured to them by the constitution, just as well as any colored man can be. The former may just as well be proved to be slaves, on dangerous, or on inferior, or on insufficient evidence, as the latter. No; the liberty to which every man, of whatever color, in a free state, is prima facie entitled, invests him with its protection, and this investiture cannot be stripped from him but by the judgment of his peers or the law of the land,—which, as we have before seen, means trial by jury.

Any other interpretation assumes this as a postulate, namely, that there is a higher or surer kind of trial applicable to freemen, and a lower or inferior mode of proceeding applicable to slaves. And the inhuman inference from this assumption is, that any man against whom a ten-dollar commissioner may issue a warrant as a possible slave, shall forthwith be subjected to the slave’s mode of trial, and be utterly deprived of the freeman’s mode of trial; or, at the best, that he shall be sent away a thousand miles, into another jurisdiction, there only to have the slave’s mode of trial. According to this form of proceeding, the first thing which the commissioner says to his victim is, “Being a slave, you must be tried in a summary manner.” “But I am not a slave,” asseverates the respondent, “and I claim to be tried by my peers under the guaranties of the constitution.” “You are no party to the constitution,” rejoins the commissioner, “and, therefore, not entitled to its shelter. The constitution was made by the people, and for the people, and you are not of them.” Then says the victim, “If I could have the trial due to a freeman, I could prove myself a freeman; but under the form of trial awarded to a slave, I may be adjudged a slave; so that my fate is made to depend not upon my rights, but upon your form of proceeding.” “Even if so,” retorts the mercenary minister of the law, “it is but an imperfection incident to human institutions. Is not one man’s property sometimes taken to pay another man’s debts? and is not one man sometimes executed for another man’s murder? Why, then, should the courts of justice be arraigned, if a freeman, instead of a slave, is sometimes consigned to bondage?”

Sir, the unmistakable distinction lies here; that if there be any difference between the kind or degree of proof applicable to a freeman and that applicable to a slave, then, in a free state, you must first prove a man to be a slave by freeman’s proof. If cast on such proof, then, and not till then, does he become the subject of slave proof. Any thing else under the form of justice is a mockery of justice. No man will say that the “claim” imposes any disability upon the person claimed, or takes away from him any rights. A man who has a presumptive right to his liberty, has a perfect right to all the means to prove it. The “claim” imposes no obligation to deliver up, but the proof under the claim; and this proof in a case of “life, liberty, or property,” is to be judged of by a jury. The real question is, who is to be delivered up, a slave or a freeman? If the person arrested is prejudged to be a slave, then there is no need of a trial at all. If he is prima facie a freeman, then he is entitled to the most perfect mode of trial.

By the theory, I believe, of all the slave states but one, every person of maternal African descent is presumed to be a slave. As such, his civil condition is fixed, special tribunals are constituted to try him, and he is subjected to rules of evidence unknown to the common law and never applied to freemen. Now it would be but the same kind of legal absurdity and preposterousness, for the presumptive slave in a slave state, to demand the form of trial, the tribunal, and the evidence, which there appertain to a freeman, as it is to subject the presumptive freeman in a free state, to the form of trial, the tribunal, and the evidence, which appertain to a slave.

The iniquity of the law is, that it enables a perjured or fictitious slave owner, on proofs most easily fabricated, to seize any individual in a free state, and to prejudge him to be a slave, by the very form of trial which this law authorizes. On the contrary, nothing can be more clear, than that the civil condition or status of every man found in a free state is that of a free man. His living under a free constitution, without any thing more, invests him prima facie with this character. Until divested of this character, he continues presumptively a free man. While such, he is entitled to every security which the constitution gives to a free man. How then can he be subjected to a trial which reverses the whole law of presumption in favor of freedom, and which presumes that he is a slave to begin with? This is not only anticipating the judgment at the commencement of the proceedings, but it is anticipating the worst judgment that can be passed; and, by anticipating, procuring it; as prophecies often procure their own fulfilment.

I put this case, and I challenge an answer that shall refute or admit my conclusion: If any one man in a free state can be seized and suddenly transported into bondage under this law, then every other man also can be; and there is not a single person left in any free state who has a right to a trial by jury to save him from slavery. I am not now speaking of the special danger to each particular individual, but of the principle that embraces us all. Under the most oppressive of tyrannies there are persons who are not in danger. But under such a law as this, who can tell what may happen to men arrested away from home, to unprotected women, and to helpless children? Do you say that a public sentiment and a public watchfulness exist, which would protect the whites, the female, and the child? I reply, that we possess our right to protection under the constitution and laws, and are not to be turned over to public sentiment or public watchfulness in order to enjoy it.

Suppose an analogous law to be passed respecting debtor and creditor. Suppose a law to provide some new mode of proceeding by which the indebtedness of a defendant should be so far presumed as to subject him to an inferior kind of defence, or to transfer his case to another kind of tribunal, as from jurors to arbitrators, to be selected by the plaintiff himself. Who is there, though through all his life he had fulfilled the apostolic injunction to “owe no man any thing,” that might not be cast in an action that would strip him of all his fortune?

The law punishes murder by death. Could it know with omniscient certainty, beforehand, who is a murderer, it might take from him the trial by jury without offence to the eternal principles of justice. It is because the law cannot know with infallible certainty, beforehand, who is a murderer, that it provides the trial by jury to determine the question. Just so, because human tribunals cannot know with certainty who is a slave and who is free, the constitution gives the trial by jury, before any man in a free state shall be deprived of his freedom. And the argument, that if a man be wrongfully consigned to bondage he may be afterwards restored to freedom, is as audacious and as tyrannical as to say that an innocent man may be hanged and sent into another world as a felon, because sometimes the dead have been restored to life.

It is no answer to this view of the case, to say that all processes, whether civil or criminal, are initiated on the supposition that a pecuniary liability exists, or that a wrong has been done. Every body knows that no presumption of this kind follows the plaintiff, or the government, into court. When there, in the presence of the law, the plaintiff must establish his claim affirmatively. The possible debtor is no longer a debtor. So the government must prove the guilt of the man it has arraigned. The possible criminal is no longer a criminal. In the eye of the law, he is as innocent as the unborn child. When they claim the trial by jury, neither plaintiff nor prosecutor can say, You are not entitled to this form of trial, because you are presumptively a debtor, or presumptively an offender. Yet this is precisely, and in totidem verbis, what the pro-slavery argument says to the respondent when he is brought before the commissioner and put in peril of his freedom. In both the cases supposed, such a doctrine would take away a man’s rights in the most odious manner, by taking away the legitimate and constitutional means of defending them.

For the purpose of determining by suit or by prosecution whether a man is a debtor or is an offender, a suit or a prosecution may be commenced against him, but never for the purpose of raising a presumption that he is either the one or the other, or to deprive him of any evidence to which an unindebted or an innocent man is entitled, or to change the tribunal which is to try the question of indebtedness or of guilt. If attachment on mesne process, if even indictment by the grand inquest for the county, does not deprive a man of his right to a trial by jury, how can so great a natural wrong be constitutionally inflicted by the warrant of a commissioner?

The presumption that a colored man is a free man in the free states, is just as strong as that a man of pure, unmixed, Anglo-Saxon blood is a free man in the slave states; and would they tolerate the doctrine for a moment that any perfectly pure-blooded white person could be transformed into a slave, and as such sent from his own state into another, under this law? Nay more; would any slave claimant at the south be allowed to go into a slave state, and seize upon a pretended fugitive whom another man might claim to own, under such a process as is now sufficient, in a free state, to authorize the taking and carrying away of the same individual?

But to the argument, that the constitution and the law of 1850 apply only to slaves, and that because slaves are not parties to the constitution they are not under its protection, and so not included in the provision for jury trial, there is another answer perfectly fatal. It is this: the constitution does not enumerate the various classes of criminals who shall be entitled to trial by jury; but with the exception of cases of impeachment, and cases in the military and naval service, it expressly declares as follows: “The trial of all crimes shall be by jury.” And also, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury,” &c. The right, therefore, is not made to depend upon the classes of persons on trial, but upon the nature of the charge brought against them. The constitution does not say that freemen shall be tried in one way and slaves in another; but its language is, “all crimes,” and “all criminal prosecutions;” so that it embraces every person who is prosecuted, whether free or slave, citizen or foreigner, Jew or Gentile. If an Englishman or a Frenchman were to be tried here for murder, how would the whole world deride the suggestion that he should not have a jury trial because he is a foreigner,—because he is not one of the “people,” and so not a party to the constitution!

So the constitution does not say, in suits between merchant and merchant, or between landlord and tenant, and so forth, “the right of trial by jury shall be preserved;” but it says, “In suits at common law, where the value in controversy shall exceed twenty dollars.” The right is not determined by the character of the litigants, but by the nature of the action. The constitution does not care who the parties are,—man, woman, bond or free,—it is all the same. As soon as parties appear upon the record, the right to trial by jury attaches. The suit, and not the civil condition of the litigants who instituted or who defend it, tests and determines the jury question.

In the case of Lee vs. Lee, before cited, the law allowed an appeal only in case the sum in controversy should amount to one thousand dollars. The appellant was of African descent, and therefore, within that jurisdiction, presumptively a slave; not presumptively a freeman, as every man is in a free state; and, if a slave, then he could own no property; for, by the cruel law of slavery, every master may rob his slave legally of all that he earns, or finds, or otherwise receives. Yet the supreme court sustained the appeal. Why was not so astute an exception as this then taken?—an exception which, if they have a bar in Pandemonium, would have done honor to one of its counsellors. Why was it not said that a slave was no party to the law, and therefore not entitled to its benefits? No reason can be assigned why a slave is not as much under the protection of a constitution made for the “people,” as under the protection of a law made for the “people.” Yet here, even in the case of a presumptive slave, a right was acknowledged, which some freemen, in free states, deny to presumptive freemen.

I have here been combating the argument, that because the Fugitive Slave law is aimed at slaves, no freeman has any ground of complaint against it, even though he should be converted into a chattel under it. He must console himself under the doom of interminable bondage, with the patriotic and pious reflection that he is only suffering, as an exception, to prove the general excellence of the law; and he must leave this consolation also to his enslaved children. For, in his case, it is said that eternal slavery is only one of those exceptions in the working of the law which proves the rule of its general excellence. This argument I hold to be eminently sophistical and cruelly oppressive. But if any one believes it to be a sound argument, then I hold him to all fair deductions resulting from it,—of which the following is clearly one:—

On the same ground on which Congress passes a law for escaped slaves, let every free state pass a law for resident freemen. The presumption in every free state being, that all men within its borders are free, let every such state give the trial by jury, in all cases in which personal liberty is involved, to every one who shall ask for it, and who has not once had it in a litigation with the same party, on the same subject-matter. According to the argument I have been considering, no slaveholder can complain of such a law; for, by its very terms, it applies only to freemen. The law of Congress applying only to slaves, and the supposed state law applying only to freemen, there is no conflict between them. And if, by accident or mistake, any real slave should take shelter under such a state law, and should escape a life of horrible bondage, it will be only one of those mistakes which may arise under the purest administration of justice. It will answer quite as well as its counterpart case, to stand as one of those exceptions in the working of a rule which prove its general excellence. If the occasional subjection of a freeman instead of a slave, to all the horrors of bondage, constitutes no valid objection to the United States law, then, surely, the occasional enfranchisement of a slave from a bondage that was always unjust and cruel, should constitute no objection to the law of the free state. If this Fugitive Slave law continues for a single year, I hope every free state will pass a law inflicting condign punishment upon every man who directly or indirectly assists in sending any man into southern bondage, unless he can prove before a jury that the man so sent was a slave.

So far, I have considered the question, whether a fair interpretation of the constitution does not secure the jury trial in every free state, to an alleged fugitive, and empower him to demand it as a matter of right.

But this is a strange question to discuss in a republican government. The proper question is, not whether the constitution expressly demands the jury trial, but whether it will, by any fair implication, allow it. The only point which a republican judge or citizen can, with decency, make on this subject is, Does the constitution forbid, prohibit, deny, such trial?—for, if it does not, then the jury should be granted of course. In a free country, under a free government, where the idea has become traditional, where the doctrine has become a household doctrine, that the trial by jury is the palladium of our civil and religious liberties, is it not amazing that we should find men who seem eager to avoid this form of trial, rather than zealous to grasp it? It is the saddest of spectacles; it argues the most mournful degeneracy, to see the children at this early day, from grovelling notions of ambition and of wealth, abandoning those noble principles of freedom for which their fathers so lately shed their blood. Wherever the constitution allows the trial by jury, in a matter of human liberty, in Heaven’s name let us have it. Let Russia and Austria curtail and deny this privilege of freemen; let the tyrant, and the tyrant’s minions among ourselves, explore the musty records of darker times, to find precedents against it; let them strive, by their shallow sophistries and plausibilities, to gloss over this ravishing of liberty and life from beings created in the image of God; but let every true republican, whenever, in the disposal of these momentous interests, the constitution will, by fair construction, sanction it, cling to the trial by jury, as to the only plank that will save him,—ay, the only one that will save the human race,—from being again ingulfed in the vortex of despotism. The enemy of the trial by jury, wherever human liberty is concerned, is the enemy of human liberty and of the human race. The friends of a repeal of this law, then, need not discuss the question whether the constitution does expressly confer the right of trial by jury upon the alleged fugitive, for it is enough for them if the constitution does not take it away.

It is worthy of remark, that in both of the bankrupt laws passed by the United States, it was expressly provided, that when the commissioners should declare any person to be a bankrupt, he should have the right to a trial by jury to annul their decision. Thus, when the law proposed, not to appropriate a man’s property, but merely to enable his creditors to receive it in payment of their debts, the jury trial was secured to him; but here, where the direct purpose is to strip a man of his liberty, and of his property in himself, the jury trial is denied.

This seems an appropriate place to consider the further irrelevant suggestion, sometimes obtruded, namely, that an alleged fugitive is not deprived of a trial by jury, because he may have it in the state to which he is carried.

Here the pro-slavery advocate admits, at least for argument’s sake, that the alleged fugitive has a right, at some time, and some where, to the jury trial. If so, then there are numerous and powerful reasons why this trial should be had in the state in which he is found, rather than in that to which he may be transported. I will advert to a few of these reasons.

1. Slaves are held to be personal property. Trover lies for their value where they have been unlawfully converted. Trespass is the remedy for an injury done to them. According to the laws of all the slave states, they are the subject of larceny. Suits to recover them, or to recover damages for an injury done to them, are personal actions; and in personal actions it is required, by all the precedents and all the analogies of the common law, that the action should be tried in the jurisdiction where the writ is served. By the common law, personal actions are transitory. They are to be brought where the defendant resides; or, at least, where the property which is claimed lies. In the case of an alleged slave, both the defendant and the property are where he is found. According to the usages and principles of the common law, therefore, the trial should be there.

2. Before trial and judgment, the parties are like any other parties before the court, or they should be so. The claimant stands upon the merits of his claim; the respondent upon those of his defence. It may be inconvenient for a Texan claimant to prove his right to an alleged fugitive in Massachusetts; but it will be indefinitely more inconvenient for a citizen of Massachusetts to prove his freedom in Texas. If the trial is in Massachusetts, and the plaintiff prevails, he takes immediate possession of his slave, and is invested at once with all the rights which the rigors of the slave law so abundantly give. But if the trial is in Texas, whither the defendant has been forcibly exiled, and there he prevails, who is to reimburse or recompense him for his intermediate bondage; for being dragged from his home; torn from wife, children, and friends; for being plunged, perhaps for years, into the hell of slavery itself, with all the untold agonies of an apprehended slavery for life?

What Judge Story says respecting the right of all persons who are accused of crime to be tried by a “jury of the state and district wherein the crime shall have been committed,” applies with full force to a trial for liberty. “The object of this clause,” says he, “is to secure the party accused from being dragged to trial in some distant state, away from his friends, and witnesses, and neighborhood.” “Besides this,” he continues, “a trial in a distant state or territory might subject the party to the most oppressive expenses, or perhaps even to the inability of procuring the proper witnesses to establish his innocence.” (3 Com. 654.) For “innocence” read liberty, and the argument in behalf of the alleged criminal becomes applicable to the alleged fugitive. And why should the alleged fugitive be treated less mercifully than the alleged felon? The law is unspeakably rigorous in the case of an alleged fugitive, but softens into mercy over an alleged pirate or murderer.

If the trial, then, is where all the practice and principles of the common law indicate that it should be, no great or irreparable injury is done; no inconvenience even is suffered beyond that which is always suffered in enforcing a claim in a foreign and distant jurisdiction. But if a freemen is carried away, a grievous and intolerable wrong is done; a wound is inflicted which mortal medicaments cannot heal, nor the longest continued punishment of the malefactor ever expiate.

3. By transferring the trial to the place of the claimant’s domicile, an effective, and, as it seems to me, a most iniquitous advantage is given him, in regard to evidence, while the respondent is subjected to cruel disabilities. By the laws of all but one or two of the slave states, persons of African descent, whether slave or free, are declared incompetent witnesses against white men. The freeman, then, by being removed as a fugitive into a slave state, may lose his evidence, which, under such circumstances, is the loss of his liberty. This violation, therefore, of the principles of the common law, in regard to the place of trial, is, to him, of the most momentous consequence. It is not true, then, in any just sense, that the trial by jury is still “preserved” to the alleged fugitive, notwithstanding his removal to a slave state. The common law trial, as inclusive of the right to adduce common law evidence, is not “preserved.”

4. But not only is the evidence different, but, in some of the slave states, the law itself is different; so that one man may carry another by force into a jurisdiction where the law will account him a slave, when, had he been tried where he was found, the law would declare him free,—the facts in both cases being the same.

Take the law of Kentucky, for instance,—and I refer to this state because its slave code is of a milder type than that of most of the Southern States, its dreadful rigors being mitigated by an infusion of more humanity.

By the laws of Kentucky, a master may carry a slave in transitu, through a free state, or he may allow his slave to go temporarily into a free state, without a forfeiture of the legal right to hold him. Graham vs. Strader & Gorman, 5 Ben. Munroe, 173, (1844;) Davis vs. Tingle et al., 8 Ben. Munroe, 545, (1848;) Collins vs. America, 9 Ben. Munroe, 565, (1849;) Bushe’s Reps. vs. White, 3 Munroe, 104; Rankin vs. Lydia, 2 A. K. Marshall, 468, (1820.)

In Massachusetts certainly, and I suppose in most of the Northern States, all such cases would be decided in favor of the respondent.[20]

Now, what greater outrage can be inflicted upon a man than to seize, and bind, and carry him into a foreign jurisdiction, where not only is the evidence different, by which his rights may be proved, but where the law also is different, by which his rights are to be adjudicated. In Holland, the killing of a stork once was, if it be not now, punishable with death; because this bird devours the animals that would otherwise bore through and undermine its ocean-barring dikes. In a neighboring country, the killing of a stork may not be merely blameless, but praiseworthy. What an atrocity it would be to seize a man in the latter country, and carry him to Holland to be tried and executed for doing an act which, according to the law of the place where he had a right to be tried, may have been not only innocent, but laudable! I leave you, sir, to make the application.

5. But what must shock every man who possesses any just appreciation of the value of human liberty, or has any just perception of the principles on which it is founded, is, that under the Fugitive Slave law, the plaintiff gets possession and control not only of the chattel or article of property claimed, but of the defendant himself. He gets command, not only of the thing in litigation, but of the body and soul of the litigant. A Boston or New York merchant would consider it a grievous hardship, if a southern adventurer could go there and seize upon all his property, transport it to Mobile, or New Orleans, and compel the owner to follow it and try title to it, in the place of the captor’s domicile. Still more grievous would the hardship become, if, under the new jurisdiction, the defendant might be deprived of the evidence which, at home, would be decisive of his rights, or find himself controlled by adverse laws which he never had helped to frame. But what an extreme of barbarous tyranny would it be, if, beyond all these enormities, the southern plaintiff could seize him too,—the defendant himself,—the alleged debtor,—and grasp him in his own iron hand, obtaining supreme control over his body by force, and over his mind by fear; could command his powers of locomotion, so that he could go only where the will of his master would permit; could control his speech and his vision, so that he could consult with no counsel, and could see no friend but such as were in his master’s pay; and, to enforce his authority, could imprison him, and starve him, and scourge him, and mutilate him, if he but so much as uttered a whisper that he had a right to have a trial by his country, or opened his lips in prayer to God to break the fetters of his iniquitous bondage!

To tamper with the witnesses of the adverse party, or endeavor to suborn his counsel to violate their duty to their client, is not only an act of the grossest baseness, but would subject the offender to penal retribution. Yet what need would there ever be of corrupting witnesses or suborning counsel, if a party could get bodily possession and absolute control of his antagonist himself?

Does not every one see that, in ninety-nine cases in a hundred, a control over the defendant’s person and will would be a control over his case? His rights would be lost in his enforced disability to defend them. You might as well put out a man’s eyes, and then talk of his right in the common sunlight. In Baltimore, or Louisville, a kidnapped freeman might find an opportunity of self-redemption; but such a captive will never be carried to Baltimore or Louisville. He will be sent to some interior region, perhaps fifty miles from any court, or the residence of any counsel, where he may never have an opportunity to speak to a white man unless it be to a taskmaster, who is paid to guard and to silence him.

The authors of the Federalist deemed the principle of excluding an interested party from all power of deciding his own cause to be so important, that they laid down the following doctrine: “No man ought certainly to be a judge in his own cause, or in any cause, in respect to which he has the least interest or bias.” (No. 80.) Yet the only chance which the Fugitive Slave law allows to a freeman, when carried into bondage, is that which he may exercise while under the absolute control of his robber master.

But more than this: the law imposes no obligation upon the claimant to carry his victim to the state he is charged to have escaped from. A man charged to have escaped from Texas may be carried to Florida. Nay, he may not be carried to any state in this Union; but may be sent to Cuba or Brazil; beyond hope, and into the outer darkness of despair.

All the arguments which I have ever heard, or seen, on this point, gratuitously assume, that the persons reclaimed and transported will have an honest master, be surrounded by kind friends, and have a lawyer at hand whom they can consult with every day, and money in their pockets to fee him. Would such be the case of a kidnapped freeman? Would a wretch, vile enough to rob a man of his liberty, carry him five hundred or a thousand miles, and then go to a shire town during a session of the court, and give his pretended slave a purse of money with which to fee a lawyer for investigating his right to freedom? No! the man who knows, or suspects, that he has seized a freeman, or that his victim even believes himself to be a freeman, and will put the claimant to the trouble and expense of a trial, will plunge that freeman into the abyss of bondage, where no ray of hope may ever reach him, and where his voice will be hushed as in the silence of death.

Another objection to the Fugitive Slave law is, that it confers judicial power upon persons who are not judges. Here we are not left to inference or construction, but can stand on the plain words of the constitution. The third article declares,—

“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.”—Art. III. § 1.

Here I hold it to be clear beyond dispute, that the “judges” mentioned in the second sentence of the above section are the members of the “supreme court” and “inferior courts” mentioned in the first section, and no other. If so, then there can be no doubt about the tenure of their office, and the mode of their appointment, compensation, and removal.

By sec. 2, of Art. II., the President “shall nominate, and by and with the advice and consent of the Senate shall appoint,” “judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.”

The appointment of no judge of any court is “otherwise provided for in the constitution;” and therefore the appointment of all the judges in whom “the judicial power of the United States is vested,” belongs by the constitution to the President and Senate; and this “judicial power” cannot be delegated to, nor exercised by, any persons not so appointed.

The courts may appoint “inferior officers,” such as clerks, criers, or masters in chancery; but these are not “judges;” nor would any one of them singly, nor any number of them associated together, constitute a “court,” within the meaning of the first section of the third article. Were such the case, then they might have power to appoint “inferior officers,” and so on, by sub-delegation, indefinitely.

The constitution also defines what it means by “judicial power.” It says, “The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States,” &c.

Now, my objection is, that the Fugitive Slave law requires the creation of a large body of officers who are not “judges,” but whom it purports to invest with “judicial powers.”

They are not “judges,” because they are not nominated by the President and confirmed by the Senate, as all “judges” must be.

They are not “judges” again, because, if they were, they must hold their offices “during good behavior.” But the commissioners may be unmade on the day they are made. “Judges” can be removed only by conviction, on impeachment. Commissioners may be removed by the court that appointed them. Not the President, nor the Senate, nor both together, can remove a judge, unless by the initiatory and concurrent action of the House of Representatives. An “inferior court” can eject a commissioner without notice.

Even if Congress had declared, by express words, that the commissioners appointed by the circuit and district courts should be taken and held to be “judges,” it would not make them so; for Congress cannot delegate any power to judges to appoint judges, nor to courts to make courts. If Congress could not do this by express enactment, how can it do so by implication?

Commissioners are not “judges,” also, because no person can be a “judge” who is not entitled, “at stated times, to receive for his services a compensation which shall not be diminished during his continuance in office.”

This provision necessitates the conclusion that all “judges” must be entitled to salaries payable periodically. These salaries are in no case to depend upon the amount or the quality of their labors,—far less, if possible, upon their deciding the cases that are brought before them for the plaintiff or for the defendant. One “judge” may have an enviable reputation for talent and integrity, and thus attract suitors to his court. Another may be as corrupt as Lord Jeffries, and repel all honest litigants from him. But, in either case, he has a right to a compensation which shall not be diminished during his continuance in office. Each year gives him a definite, unchanged sum of money.

But the commissioner is paid by fees, and the amount of his fees depends partly upon the number of cases he decides, and partly also upon the party in whose favor he decides. If he decides that a man is free, he receives five dollars. If he decides that he is a slave, he receives ten. If the commissioner is acceptable to slave hunters, suitors multiply. If obnoxious to them, his docket is bare of a case. He is entitled to his compensation, not “at stated times,” but on the determination of each case. His compensation may be diminished, or it may cease altogether, during his continuance in office. Each year does not give him any definite, unchanged sum of money.

The “judge” must be paid by the government, and is independent of all the parties before his court. The commissioner is never to be paid by the government, but is wholly dependent for his fees upon the claimant whose case he tries. The government guaranties the payment of the “judge,” but it can never inquire or know whether the commissioner be paid or not.

By the sixth article of the constitution, all “judicial officers” must make oath or affirmation that they will support the constitution. But there is no law requiring these commissioners to take an oath; and as a matter of practice, in some parts of the country at least, it is known that they take no such oath.

Now, by the act, a portion of the “judicial power” of the United States, the whole of which is, by the constitution, vested in one “supreme court,” and in “inferior courts,” is given to the commissioners. The fourth section says they “shall have concurrent jurisdiction with the judges of the circuit and district courts of the United States.” If the power of these courts, in the premises, is judicial, then the power of the commissioners, being the same, is judicial.

The attorney-general of the United States, in a written opinion, given by command of the President, declares that this power, so given to the commissioners, is judicial. The following are his words:—

“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.”

Such is the opinion of the attorney-general of the United States, given upon the precise point, by order of the President of the United States.

But the point needed no authority to sustain it. It results inevitably from the very nature of the power conferred by the law. The decision of the commissioner is to be final and conclusive, and the subject-matter of the decision is liberty and property. The case cannot be reheard or reëxamined by any judge, or by any court, of any state, or of the United States. The decision acts in rem and in personam. It delivers the property to the claimant, and puts the body of the defendant into his custody. From that moment, if the law has any validity, the defendant is the slave of the plaintiff, by force of a “judicial” decision. The plaintiff, thenceforth, may control his actions, his words, his food, his sleep. If he chooses to exercise his authority in such a way, he can order his victim to carry him home on his back, and make him bear the loathsome burden of his person as well as of his will. Now, to say that the power which effects these results is not a judicial power, is to do violence to language, and to commit a fraud upon the inherent nature of ideas. In no case known to the common law, or indeed to any other law, is a plaintiff invested with full rights, except after final judgment.

If, then, this power is a “judicial power,” the constitution peremptorily forbids that it should be vested any where but in a “court,” whose “judges” are nominated, confirmed, sworn, hold office, are paid, and are removable, according to its requirements. Look at the constitutional distribution of powers. By the first article, all legislative power “shall be vested in a Congress.” By the second article, the “executive power shall be vested in a President.” And by the third article, “the judicial power shall be vested” in the courts. And it was just as competent for Congress to invest “commissioners” with supreme “executive” or “legislative” power, as to vest them with “judicial” power.