# Unconstitutionality of the Fugitive Act/3

TUESDAY, MAY 30,—10 A. M.
May it please the Court:
I yesterday urged the unconstitutionality of the Fugitive Act, on the ground that it vested judicial power in court commissioners, thus subjecting the liberties of the people to irresponsible, dependent officers, contrary to the plain provisions and obvious intent of the constitution. I also urged that congress had no power to legislate upon the subject at all, but that the clause in the constitution is a mere article of compact between the States, depending on them alone for its execution. I attempted ​to show that the decisions by which this power had been sustained in congress were contrary to all settled and safe rules of construction; and that if they are to be followed, the constitution would be the mask and not the measure of its powers. That it would be like the painted scenery on the stage, used to hide the designs of the actors till they were ready to begin, and then shifted and changed to accommodate the character of the proposed performance.
I wish now to call the attention of the Court to another branch of this objection, and that is to the extent of the criminal jurisdiction of the United States. When we look into the constitution to find how far that jurisdiction extends, we learn that congress has the power to "provide for the punishment of counterfeiting the securities and current coin of the United States—to define and punish piracies and felonies committed on the high seas, and offences against the law of nations, and to declare the punishment of treason." We find that no other criminal jurisdiction whatever is delegated to it in the instrument. These offences are of a flagrant character, either aimed at the existence of the national government, or such as are committed out of the jurisdiction of the States, and beyond the reach of their power to punish. From the nature of the offences—from the cautious and specific manner in which the power to punish them is granted, a very strong implication arises that the intention was that congress should have no power to punish other offences. Because if it was to have implied criminal jurisdiction, these specific grants seem to have been useless. Take for example the case of treason. That is a crime levelled at the very existence of the government. It would seemt that if any power was to pass by implication, it would be the power to punish this crime. But the framers of the instrument did not so understand it. After defining what should constitute treason, they add the express words that "congress shall have power to declare its punishment." The object seems to have been to leave no uncertainty in this matter, but to mark the boundaries of the criminal jurisdiction of the general government so plainly that there could be no danger of their being passed over.—They feared the gigantic strength of that government, and designed to guard the people against a jurisdiction that might oppress them by multiplying crimes, and pains and penalties—that being the manner in which the worst forms of tyranny had always been developed.
This is the view taken by one of the Kentucky Resolutions, drawn by Mr. Jefferson, adopted by the legislature of that State, and since endorsed by the Democratic Party. The resolution is as follows:
"Resolved, That the constitution of the United States, having delegated to congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the law of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments of the constitution having also declared 'that the powers not delegated to the United States by the constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people,' therefore, also, the same act of congress, passed on the 14th day of July, 1798, and entitled, 'an act in addition to the act entitled an act for the punishment of certain crimes against the United States,' as also the act passed by them on the 27th day of June, 1798, entitled, 'an act to punish frauds committed on the Bank of the United States,' (and all other their acts which assume to create, define or punish crimes other than those enumerated in the constitution,) are altogether void and of no force; and that the power to create, define and punish such other crimes is reserved and of right appertains, solely and exclusively to the respective States, each within its own territory."
This doctrine, therefore, seems to have a very considerable weight of political authority, if it has not any judicial. But I am aware that a different practice has been adopted by the government, and that it has exercised the power to punish a number of other crimes besides those enumerated in the constitution. This power has been claimed under the general grant of incidental powers.—I find no case in which the point has been raised or determined judicially. But Chief Justice Marshall alludes to the penal code of the United States, in the Bank case, by way of illustration. It will be seen that he admits that there is "plausibility" in the position of the Kentucky Resolution. He says:
"All admit that the government may legitimately punish any violation of its laws, and yet this is not among the enumerated powers of congress. The right to enfoce the observance of law by punishing its infraction, might be denied with more plausibility, because it is expressly granted in some cases. * * The several powers of congress may exist, in a very imperfect state to be sure, but they may exist and be carried into execution, although no punishment should be inflicted in cases where the right to punish is not expressly given.
"Take, for example, the power 'to establish post-offices and post-roads.' This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post-office or rob the mail. It may be said with some plausibility that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and a post road. The right is, indeed, essential to the beneficial exercise of the power, but not absolutely necessary to its existence. So of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court.—To punish these offences is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment."
Now I shall not deny that there is great force in this reasoning, nor that there is some ground to believe that the government might claim the power to punish, as incidental to the execution of the express powers, even against the strong implication arising from the specific manner in which the power to punish certain crimes is delegated. I still think all such power might safely be left to the States and they being equally interested in the accomplishment of the objects of the constitution, would pass all the criminal laws necessary. But admit that this is not so, and that the general government is to have an implied power to punish other crimes than those enumerated. What is the limit of that power? Where are the bounds at which it must stop? If they are to exercise this implied power at all, the utmost extent to which it should be carried is this: The express power, to which the power to punish is claimed as incidental, should be first pointed out. And the act to be punished should be one aimed at the execution of the power, or one tending to hinder and impede the operations of the general government or some of its departments. The power to punish should be clearly and plainly incidental to the express power, and necessary to its execution.—This rule should be rigidly adhered to. For there is far more reason to believe that the Kentucky Resolutions contains the true doctrine, than that congress may exercise criminal jurisdiction upon loose implication. And this is the only extent to which Chief Justice Marshall carries the power, as shown by his illustrations. He says the power to punish robbing the mail, is "essential to the beneficial excercise" of the express power to "establish post-offices and post-roads." So the power to punish perjury was essential to the proper operation of a court in administering justice.
Let us see, then, what is the character of the Fugitive Act in this respect. In spite of all the care of the founders of our government, to guard us against the exercise of an unwarranted criminal jurisdiction, we have here a law that brings under its ban, all things that are lovely and of good report. A law, that not only in spirit, but by its letter, would seize upon our mothers, who, by teaching us from our earliest years, to do to others as we would that others should do to us, lead us to aid a wandering fugitive to escape from a doom to which no human being would wish to be consigned himself. A law that would punish our wives and children, who, by their gentle affection and prattling innocence, make the home of man a place of refuge and delight, amid all the cares and sorrows that may overwhelm him in life. Because the holy feeling created in his heart by the love of his wife and children, leads him to try and save a fellow-being from being dragged a way to a condition where he has no wife and no children, but where they are torn from him, and sold into enteral separation, as ruthlessly as the butcher tears the young animal from its anxious dam! A law that would punish our teachers, all who instruct and enlarge our minds, and inspire us with the love of knowledge and of truth. Because all this leads us to rescue a brother man from the grasp of the oppressor, who would reduce him to a state of bondage, where the whole power of society is brought to bear on him, to shut out from his mind every ray of truth, and to encase his soul in impenetrable ignorance and night. Yes, Sir! all that can inspire our ​hearts with a just, a generous, humane or noble feeling, comes under the pains and penalties of this act, because all this "aids," not only "indirectly" but "directly," to use the language of the act itself—in the escape of every fugitive that comes among us.
Where, then, is the warrant for the exercise of a criminal jurisdiction of so detestable a character? Echo may answer, but the constitution answers not! It gives no sanction to it. It is not among the express powers—it is not incidental to the execution of any of them.
The Fugitive Law punishes the harboring or concealing of a fugitive, or aiding in his escape from the owner. Is this an act that interferes with the execution of any express power of the general government, or hinders the functions of any of its departments? Clearly not! It no more interferes with the operations of that government than the stealing of a horse. Where is the difference?—One man steals the horse of a slaveholder who comes into our State; another aids his slave to escape from him. Where is the difference between the two acts so far as they affect the general government? There is none.—And that government has just as much jurisdiction to punish the one act as the other. It would be the same as tho' that government should claim the power to punish the stealing of a letter from the possession of the owner, after it had left the post-office, or before it was put in, as necessary to the operations of the post-office department. It will be remembered that the power for congress to legislated on this matter at all, was claimed as incidental to the vesting of the judicial power. This is the only possible ground on which any such legislation can be sustained for a moment. But is the criminal jurisdiction exercised in the act, necessary to the vesting of the judicial power? Cannot congress vest the judicial power without punishing the harboring or concealing of a slave? The question needs only to be asked, in order for every one to see that the pretence that the one power is necessary to the other, is an absurdity. The chasm is too wide between them, for any connection to exist.
If a slave-owner should come here from another State, with horses of the value of five hundred dollars, and a man should steal them from his possession, he might replevy them by a writ from the United States Court. The judicial power of the United States would extend to such a case, and congress might vest that power, and say how the case should be brought before it. But would it have the power to punish the man for the theft? No one pretends it. Yet this is just as clearly incidental to the vesting of the judicial power, as the punishment of the harboring of a fugitive. Such harboring may take place before any judicial proceeding is commenced; the aiding in the escape may take place after all judicial proceedings are over. These are acts not interfering with the functions of the judiciary, but with the rights of the owner, if he has any rights. And there is no possible reasoning which will give congress a criminal jurisdiction, as incidental to the vesting of the judicial power, to punish these acts, which will not at the same time give it jurisdiction to punish all acts in violation of any right, that may be brought in controversy before the national tribunals.—Let us see if they who were instrumental in passing this act, would be willing to submit it to the legitimate cousequences of the reasoning by which it is to be sustained. Take the first clause in the same section with the fugitive clause in the constitution. This provides that, "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Now it is a notorious fact that this clause has been systematically and outrageously violated by the South, for many years, and is to this day. No man whose sentiments are known to be opposed to slavery can go there, without being driven out by violence. The States of South Carolina and Louisiana have also passed laws, by which they seize and imprison a certain class of the citizens of Massachusetts, whenever they enter those States. And when Massachusetts sent its authorized agent to South Carolina, to test the constitutionality of those laws, he was chased out by a mob! These acts and these laws were plain violations of the constitution. But we never heard an intimation from the general government that it had any power, or even any disposition, to defend the people of the free States against these outrages! Not a word! Not a syllable!
(The court here asked Mr. Paine if he thought the general government had any power to legislate under this clause?)
I do not, Sir! I hold it to be a mere clause of compact, like the fugitive clause, conferring no power whatever on the general government. It might be said that no law could be passed to carry its provisions into effect, in the first instance. But violations of it might be punished.—And suppose congress should pass a law punishing with fine and imprisonment, any person who should "aid, abet and assist, directly or indirectly," in imprisoning any citizen of any State on account of the color of his skin, or in mobbbing any authorized agent of a state who went to another state, to test a constitution question in the federal courts! Why, sir! we should hear "a clamor such as heard till now was never," about state rights, and usurpations by the Federal Power! Our southern friends would be ready to hurl the Union into a hundred fragments, before they would submit to such dangerous encroachments. It would be an encroachment, there is no doubt about it. But it would be no more so, than the criminal legislation in this Fugitive Act. The same reasoning by which this is to be sustained, would sustain a law such as I have supposed.
I hold therefore, that in this Act, congress has usurped criminal jurisdiction, without a shadow of right or reason. And usurpations of this character are doubly dangerous, and should be watched, if possible with a double vigilance. I know that the people are too apt to acquiesce in usurpations by governments. Especially are they too apt to do this, when these usurpations are clothed with judicial sanction. That is what makes these the most dangerous.—They are wolves in sheep's clothing. They are the most dangerous, because least calculated to challenge that examination and resistance, that usurpations should always meet. Acquiescence has ever been the great error of the people. They forget that eternal vigilance is the price of liberty, and that this vigilance is to be exercised in unmasking tyranny under the forms of law. They become absorbed in the pursuit of the shining gold and glittering silver, and do not perceive that the iron net-work of despotism is being woven gradually around them, until their liberties are undermined and destroyed. They regard as a false wizzard, him who warns them, and cry peace! peace! when there is no peace.
I have said these usurpations of criminal power are dangerous. And who can say it is an idle fear when the doctrine of "constructive treason" has already been revived, by the federal courts, and attempted to be put in execution against the people, and this under the instructions and encouragement of the government! Who can say there is no cause of alarm, when those courts speak in terms of contemptous scorn of state officers, calling them "tuppenny magistrates," and threatening them with indictments and prosecutions for daring to resort to the legal remedies furnished by the laws of a sovereign state?—Who can say that there is no danger, when those courts tell us that the slave hunter with one of their warrants in his pocket, may range at will through our state, washing his hands in the blood of our people, and wreaking upon our men, women and children, whatever crimes his passions may prompt, and that by this magic warrant the arm of State power is paralysed,—stricken down nerveless and helpless to defend its people? Who can say that we are safe, when, after a slave hunter is arrested for a crime here, the Federal courts step in and set him free, to repeat his offences with impunity. Who can accuse us of unfounded fear, when those courts at the same time they say and do all this, tells us that they "have not yet got a quarter of the power, the constitution intended they should have"! Great God! If these are the results, when they have not a quarter of their power, what may we expect when they have got it all?
Sir, this criminal jurisdiction of the United States not expressly delegated in the constitution, should be fenced around with walls of brass, and with triple bars of iron. It is a viper whose length is hidden from the sight. It may appear frozen and harmless to some, but let it be warmed into life by the acquiesence and encouragement of the States, and it will drag forth fold upon fold from the slimy obscurities of implication and construction. And at last it will rear its sparkling crest aloft, and with baleful lightnings flashing from its eyes, and its forked tongue darting nimbly in every direction, it will hiss in the scorn and insolence of power, at the murmurings of the people whom it crushes in its convolving folds.
the trial by jury.
And now I come to the last of the objections I have to urge. It is, that admitting that congress has the power to legislate, and that a fugitive case is one to which the judicial power extends, still the law is unconstitutional, because it provides that any person claimed, may be reduced to a state of slavery with a trial by jury.
When the resolutions that were adopted by the meeting on the court house square on the 10th of March, were first proposed by the committee, they were to the effect, that ​Glover was entitled to a fair and impartial trial, and that the people there would do what they could to secure him such a trial. Standing in my place in the crowd, I moved that they be so amended as to read that he was "entitled to a fair and impartial trial by jury," and the motion was adopted. I noticed that at the examinations subsequently had before the Commissioner, the District Attorney of the United States, while reading these resolutions, dwelt upon that claim with a peculiar emphasis, amounting as I thought to a sneer,—as though to claim a trial by jury for a person arrested as a fugitive, if not high treason, was still a crime of not less magnitude. Sir! the responsibility for that claim in those resolutions, does not belong to any of the defendants who have a yet been prosecuted. It belongs justly to me. And I am willing to bear its consequences now and hereafter. The pledge that I then made I repeat here. I will, so help me God! so long as I have a tongue to speak, never fail to assert the right of every man, woman and child, in the State of Wisconsin, without regard to color, rank or condition in life, to a right of trial by jury in all questions touching liberty or life. If this be treason, make the most of it,—if it be any crime less than treason—make the most of it!
And now to the extent of my ability, I shall proceed to fulfil my pledge here to day. And if I could have faith that any prayers of mine, could furnish me other aid, I would ask for the tongues of angels,—I would invoke the genius of liberty to inspire my lips,—when I attempt to speak in behalf of this great birth-right and best privilege of all who have lived within the protecting influence of the English common law! The trial by jury, whenever and wherever it originated, sprung from the people. It had its origin in their honesty, their justice, their humanity and truth.—And never among all the inventions of men, has any mode of trial been devised, which administers law, so effectually for the promotion of those great qualities, as the trial by jury. The people have clung to it with a tenacity that showed how truly they estimated its value. As the Ark of the Covenant, containing the testimonies of God, was borne by the twelve, chosen from the twelve tribes of Israel, from the wilderness onward to the land of promise,—and so during all that toilsome march, the waves of tyranny have divided before it and allowed the people to pass through unscathed. Amid all the strife and discord in private life,&mdahs;amid all the mutations of governments,—amid all the silent yet mighty workings of corruption, the trial by jury has vindicated its character as a shield of the innocent,—a merciful judge of the guilty, and a staunch and incorruptible deffender of the liberties of the people. And now when in the very house of its friends, a deadly blow is aimed at this great right,—when in the full blaze of the light of civil liberty, it is sought to be stricken down by the hands of an American Congress,—society should stand up as one man, and say in the language of a popular song:
Woodman! spare that tree, Touch not a single bough! In youth it sheltered me, And I'll protect it now!
They should say this not from mere motives of gratitude for a past protection which they need no more, but because the trial by jury still is and ever will be, the best safeguards for all their dearest rights. Because it is a tree, that if preserved from the spoiler, will flourish in immortal vigor, so that their posterity may repose in peace and safety beneath its branches, when a thousand generations shall have passed away!
I sir, for one, was filled with rejoicing, when I leared that our Supreme court, had determined to preserve this great right, unimpaired to the people, even where property alone was concerned. That decision vindicated the Constitution against legislative innovations, and I regarded it as a good omen. The praises of the trial by jury have been "hymned by loftier harps than mine." And it might perhaps justly be regarded as a work of supererogation to say any thing, or to refer to what others have said in its praise. But there is a quality in human nature that leads us not to appreciate properly, those blessings we have always enjoyed. But now that we are losing it,—now that we have lost it,—it may not be altogether amiss to contemplate the magnitude of the loss.
Judge Story in the 3d volume of his Commentaries speaks of this right as follows:—
"It seems hardly necessary in this place to expatiate on the antiquity or importance of the trial by jury in criminal cases. It was from very early times, insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties, and watched with an unceasing jealousy and solicitude. The right constitutes the fundamental articles of Magna Charta, in which it is declared, "nullus homo capiatur, nec imprisonctur, aut exulet, aut aligno modo destruatur, &c; nisi per legale judicium parium suorum, col per legem terrae." No man shall be arrested, nor imprisoned, nor banished, nor deprived of life, &c. but by the judgment of his peers, or by the law of the land. The judgment of his peers, here alluded to, and commonly called in the quaint language of former times, a trial per pais, or tiral by the country, is the trial by a jury, who are called the peers of the party accused, being of like condition and equality in the State. When our more immediate ancesetors removed to America, they brought this great privilege with them, as their birth-right and inheritance, as a part of that admirable common law, which had interposed barriers on every side, against the approaches of arbitrary power. It is now incorporated into all our State Constitutions as a fundamental right, and the Constitution of the United States would have been justly obnoxious to the most conclusive objection, it it had not recognized and confined it in the most solemn terms. * * * * So long, indeed as this palladium remains sacred and inviolable, the liberties of a free government cannot wholly fall. * * * * * Mr. Justice Blackstone, with the warmth and pride becoming an Englishman, living under its blessed protection has said:—"A celebrated French writer, who concludes that because Rome, Sparta and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta and Carthage, at the time when their liberties were lost, were strangers to the trial by jury."
Chancellor Kent in the 2d volume of his commentaries, page 9, writes as follows;
"The Constitution of the United States, and the Constitutions of almost every State of the Union, contain the same declaration in substance, and nearly in the same language. And where express constitutional provisions on this subject appear to be wanting, the same principles are probably asserted by declatory legislative acts; and they must be regarded as fundamental doctrines in every State, for all the colonies were parties to the national declaration of rights in 1774, in which the trial by jury, and the other rights and liberties of English subjecs, were peremptorily claimed as their undoubted inheritance and birth-right. It may be received as a self evident proposition universally understood and acknowledge throughout this country, that no person can be taken or imprisoned, or disseized of his treehold, or liberties or estate, or exiled, or comdemned, or deprived of life, libery 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 in 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, and this, said Lord Coke, is the true sense and exposition of those words."
And now without alluding further to the writings of any body, to show the value of this right, let us consider the means by which it is secured. In the ordinance of 1787, for the government of the Territory north west of the Ohio, there were certain articles of compact between the States "and the people of the Territory," made unalterable, unless by common consent. In the second of these, we find the following provisions:—The inhabitants of said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury: No person shall be deprived of his liberty or property, but by the judgment of his peers, or the land of the land, &c.
now, Sir, it is well known that the authors of this celebrated instrument, intended to secure by it forever, to the people of the northwest Territory, the great rights ennumerated in those articles made unalterable. They intended to plant the tree of liberty so deep, that no storm occurring on the surface could sweep it away. They intended that every man, who, in all coming time, should make his home in that territory, should purchase with the soil itself, as one of the "privileges and appurtenances thereto belonging," the right of trial by jury, and the other rights there enumerated. They intended to do this, and it has been fondly hoped, especially by the people of that territory, that they had done it.
I will read a few authorities upon the force and effect of the Ordinance. Daniel Webster in his speech on Mr. Foot's resolution concerning the public lands, delivered in the Senate in 1830, spoke of this instrument as follows:
"At the foundation of the Constitution of these new northwestern States, we are accustomed Sir, to praise the ​law givers of antiquity; we help to perpetuate the fame of Solon and Lycurgus; but I doubt whether one single law of any law giver, ancient or modern, has produced effects of more distinct, marked and lasting character, than the Ordinance of '87. That instrument was drawn by Nathan Dane, then and now a citizen of Massachusetts. It was adopted as I think I have understood, without the slightest alteration; and certainly it has happened to few men to be the author of a political measure of more large or enduring consequences. It fixed forever, the character of the population in the vast regions northwest of the Ohio, by excluding from them involuntary servitude. It imposed on the soil itself, while it was yet a wilderness an incapacity to bear up any other than free men. It hid the interdict against personal servitude, in the original compact, not only deeper than all local law, but deeper also than all local constitutions. Under the circumstances then existing I look upon this original and seasonable provision as a real good attained. We see its consequences at this moment, and we shall never cease to see them, perhaps, while the Ohio shall flow."
I now refer the court to the case of Spooner vs. McConnell, in the 1st McLean's Reports, page 337.
(Mr. Paine here read at considerable length from the opinion of Judge McLean, holding that the articles of compact in the ordinance are still in force, except where they have been altered by common consent; that the adoption of a State constitution, with provisions repugnant to those of the ordinance, and entering the Union as a State, wo'd constitute the common consent necessary to the alteration; and intimating that such provisions as were subsequently guaranteed in the Federal constitution, might be considered as practically superseded.)
There is also a very able opinion of Chief Justice Stowe and Judge Larabee, of our old supreme court, delivered by the latter, in the case of Newcomb vs. Smith, reported in Chandler's Reports, sustaining the validity and binding force of the ordinance. These opinions are based upon the fact that the people of the Territory were not parties to the constitution, and therefore gave no consent in that to the alteration of the articles of compact.
But it is said in these opinions, that the adoption of a State constitution, with provisions repugnant to the ordinance, constitutes the common consent necessary to its alteration. This appears to be plain. The State constitution, after its adopt on, and the entry of the State into the Union, supersedes the ordinance,—but how far? It seems to me, only so far as it stands in its place. And it stands in its place only so far as the ordinance operated as a restriction on the local government. The State constitution is a restriction on the local, and not on the general government. I hold, therefore, that there is nothing in the adoption of a State constitution, that gives any consent to the removal of the restriction imposed by the ordinance on the power of congress. It is admitted by all who hold that the ordinance has ever been in force at all, since the adoption of the Federal constitution, that it limited the powers of congress, while the people were under the territorial government. Suppose, then, the people adopt a State constitution, re-enacting the provisions of the ordinance. Is there anything in this, that can possibly be construed into a consent that the general government shall be released from its restrictions? It seems to me not.
I hold, therefore, that the right of trial by jury was secured to the people of this State by the ordinance of '87, and that they have never consented that it should be taken away. I have said thus much upon that instrument, because it is sometimes claimed that the language of the constitution, in relation to trial by jury, applies either to a civil or criminal case, and that a fugitive case is neither the one nor the other. But the language of the ordinance is broad and general, and applies to any proceeding by which a person may be "deprived of liberty."
Now, Sir. I am aware, though I was not till a short time since, that the supreme court of the United States has held that the ordinance was superseded entirely by the federal constitution, and that it has never been in force since the adoption of the latter instrument. This was held in the case of Strader et al vs. Graham, 10th Howard, 82. It was a suit for helping away slaves, that went up from the Court of Appeals in Kentucky. The counsel cited a large number of cases where even the courts of slave States held the ordinance to be in force, and that if an owner allowed his slave to go into a State formed out of the Northwest Territory, he becomes free by virtue of the ordinance. Judge McLean held that the question of its validity did not arise before the supreme court, and claimed that all said by the court about that point, was extra-judicial. Judge Catron also said that the State courts "for thirty years" had held some parts of the ordinance to be binding, and he did not wish to disturb those decisions, when their "opinion might be disregarded by the State courts, as obiter and a dictum uncalled for!" But the court, notwithstanding this question was not necessary in the case, decided that the ordinance was superseded by the constitution, and that the people of the Territory were parties to the latter instrument.
I think this decision is not generally known by the people of the Northwest. For we still see frequent allusions to the beneficial results of the ordinance of '87. But, sir, if this decision is true, those who make these allusions are deceived. Daniel Webster was laboring under a great delusion. That instrument which he thought produced such "lasting" consequences, that we "should never cease to see them while the Ohio should flow," lasted less than two years. It had ceased to have any effect more than forty years before Mr. Webster pronounced his speech in its praise.
Sir, I do not regard this decision as an authority. I believe with Judge McLean that it was extra-judicial, and with Judge Catron that it was "a dictum uncalled for."—The only effect it should have, in my judgment, is to convince the people of the Northwest Territory, that their rights, though of the most important character, though guaranteed by the most solemn compacts, are not safe in the supreme court of the United States, whenever they come in conflict with the interests of slavery. Yes, that court will even go farther than is necessary, to construe those rights away!
But, leaving the ordinance, let us come to the constitution. And I contend that the right of trial by jury is guaranteed here with equal clearness. It is guarded with even the most anxious solicitude. In the 7th amendment it is declared that—"in suits at common law, where the value in controversy exceeds twenty dollars, the right of trial by jury shall be preserved." Admitting, then, that the claim of the master is a "case at law, arising under the constitution," as contended by the supreme court, then the right of trial by jury is expressly secured by this clause. In the 6th amendment, the jury trial is secured in criminal cases. But the 5th amendment covers the whole ground. A part of it is as follows.
"Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without dur process of law; nor shall private property be taken for public use without just compensation."
It is here provided that no person "shal be deprived of life, liberty or property without due process of law."—The words, "in a criminal case,"—in the clause preceding this, do not extend to this clause; but it stands by itself, without being necessarily affected by those words, any more than the one that follows it. The words are broad and general, and fully cover the proceedings of a fugitive slave case. And I have already referred the court to the construction of the words "due process of law," which are held to include all the essential rights secured by the common law, among which the trial by jury is one.
The words of this amendment seem evidently designed to be general, and to cover all proceedings by which the people may be deprived of liberty. Because, after this the 6th amendment provides expressly for criminal cases, and the 7th for civil cases. And the words of this 5th amendment seem fully to justify the broad statement of Chancellor Kent, already quoted, that—"It may be received as a self-evident proposition universally understood and acknowledged throughout this country, that no person can be taken or imprisoned, or disseized of 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!" That is to say, unless he has a trial by jury.
If it be said that this is a proceeding sui generis, and that these provisions of the constitution do not apply, I answer that it was for the very purpose of protecting us against just such proceedings sui generis, by which our liberties could be destroyed without "due process of law," that these safeguards were inserted in the constitution.
And now, in view of all these safeguards, by which our fathers evidently supposed they had fenced round the liberties of the people with adamantine walls, that wo'd bid defiance to the fiercest storms of tyranny, let us look at the practical operation of this Fugitive Act. A person is found in our State in the possession of liberty. He enjoys actual freedom, and our law presumes him to be free. All the people here stand on the same footing in this respect. A man comes from another State, and claims ​him as a slave. He is arrested by a warrant, taken before a U. S. Judge or Commissioner, and after an examination which is a mere mockery, not only of all the substance, but of all the forms of law, he is decided by such judge or commissioner to be a slave, and is delivered up. Keep the simple facts in view! He is a freeman when seized. He is a slave when he leaves the court room or commissioner's office;—made so by the decision of one man! There is no room here for the evasions of ingenuity. The destruction of the jury trial is complete. That of those cities that were buried forever beneath volcanic fires, was not more so. Where then are the safeguards of the constitution? Where are all the solid ramparts, by which we believed our liberties were protected? Are they all swept away by this act? Are they, indeed, so feeble as to vanish before the breath of the slave power, as magic castles disappear before the waving of the enchanter's wand? They are, if this act is to stand, for one or the other is to fall. And what answer is made to this? None at all! It stands unanswered and unanswerable!
When I first obtained the opinion of Chief Justice Shaw in the Sims case, I read in the syllabus at the beginning, that the fact that this act makes "no provision for a trial by jury in favor of the alleged fugitive, does not make it unconstitutional." I then perused the opinion with feelings of intense curiosity and anxiety, to see by what reasoning this propositions was to be sustained. I came to it at last, and will now read it. It is not long. It is, like the proceedings under this act, of a very "summary character." The Chief Justice says:
"Since the argument in court this morning, I am reminded by one of the counsel for the petitioner, that the law in question ought to be regarded as unconstitutional, because it makes no provision for a trial by jury. . We think that this could not have varied the result. The law of 1850 stands, in this respect, precisely on the same ground with that of 1793, and the same grounds of argument which tend to show the unconstitutional of the one, apply with equal force to the other: and the same answer must be made to them."
Here we have this great right disposed of in a paragraph. The massive bulwarks of the constitution, are overthrown by a single exhalation of judicial breath! And how disposed of—how overthrown? Why the Chief Justice tells us that the "same answer must be made" to this objection to the present act, that was made to it, when urged against the law of '93. Well, Sir, no answer was ever made to it when urged against that law. The question of a jury trial was not raised in the Prigg case. And Judge Story said afterwards, as we are informed by his son, that the supreme court had never decided that point, but it was still an open question before that court. The answer of Chief Justice Shaw, therefore, is about as satisfactory as was the answer of a defendant to a Bill in Chancery, which I heard read at a late public trial. It was a Creditor's Bill, and the defendant wished to evade a disclosure. He answered, therefore, somewhat in this wise: that to the first interrogatory his reply was, that he had no information, to the second, his answer was that he knew nothing of the matter; to the third his "answer was the same" as his answer to the first; to the fourth his answer wo'd be found embodied in his answer to the first and second, and so through all the interrogatories! There never was any answer to the objection against the law of '93, for want of a jury trial, and Chief Justice Shaw tells us the same answer is to be made now. Sir, I turned away from that opinion sick at heart, at the manner in which tho great rights of a nation could be lightly construed away and disregarded, by tribunals that were instituted and sworn to protect them!
I read to this Court yesterday, the able opinion of Chancellor Walworth in the case of Jack vs. Martin, in which he asserted the right of every person claimed as a fugitive to a trial by jury. Let me know call its attention to that part of the opinion of the New York supreme court in the same case, relating to this point. It will be remembered that it was delivered by Judge Nelson, and that it sustained the power of congress to legislate on this subject. This gives its admissions upon this point a double force. On page 324 of the 12th Wendell, the court says:
"It has been said that under the law of 1793, a free citizen might be seized and carried away into captivity, and hence the necessity of the law of the State, giving to him a trial by jury on the question of freedom. This argument is plausible and the justice of it difficult to deny:—but sound as it is, it tends only to prove the defectiveness of the law of congress, not the authority of the State."
Here then we have both these judges who denied, and those who maintained the power of Congress to legislate, admitting that the "law is defective," and that the objection for want of a trial by jury is a "sound" objection. If this is the "answer," to which Chief Justice refered, we are willing to take this, and to have the "same" one made to the present Act. But sir, it is sometimes said that the person claimed, may have a trial by jury in the State to which he is taken as a slave! I should think that this pretence would blister the tongue of the freeman who could utter it! Is that the protection which this State furnishes to its people? When they ask for bread, will she give them a stone? When they are seized to be carried away as slaves, and demand a trial by jury to determine their right to liberty,—will she say, she is unable to give it, but they may get one from the slave State; or in other words, that they may get better protection as slaves, under the laws of a slave State, than we can furnish to our freemen? It is only with feelings of the utmost amazement that I can listen to this pretext:—that I can learn that there are men, who, in order to secure to the slave holder, the speedy possession of his slave, are willing that freemen should be dragged away into captivity, with no chance of regaining their liberties, except such as the laws of the slave States give their slaves. If that is the extent of our protection from the States, the sooner the people learn it the better, for they will then take the protection into their own hands.
But they tell us also that a fugitive from labor, is no more entitled to a trial by jury where he is seized, than is a fugitive from justice. The distinction between the two cases is so palpable, that this needs no answer, but I will answer it. A fugitive from justice is not "deprived of his liberty" when arrested in the State to which he has fled, in the sense in which those words are used in the Constitution. Those words mean not a mere taking into custody for the purpose of being tried, but some judicial determination upon the party's right. A man arrested by a sheriff for a crime against the State, is deprived of his liberty temporarily for the purpose of a trial. But this is not such a deprivation as is meant by the Constitution. Otherwise no man could be arrested for any offence without the aid of a jury. In arresting and delivering up a fugitive from justice therefore, there is no adjudication on the party's right, but it is a mere arrest for the purpose of taking him to be tried where the crime was committed, in obedience to a long settled principle of criminal law.— The prosecution is begun in another State, and the arrest here is no decision on the guilt or innocence, but a necessary preliminary step to such a decision elsewhere. But with the fugitive from labor it is entirely different. With him, the question whether he "owes service and labor" or not, is to be judicially determined in the State to which he has fled. The question of his right to liberty is to be passed upon judically in that State. And so this Fugitive Act treats it. It makes provision for a trial here, to determine that question, and requires the Judge or Commissioner to pass upon it, though its provisions on this subject are so lamentably partial, oppressive and unjust, as to have excited the abhorance of the civilized world. Yet even these, wicked as they are, show the distinction between these cases. The proceedings against a fugitive from labor are not preliminary steps to any proceeding in another State. They are begun here and end here. The party's right to liberty is judicially decided here, and if it is decided against him, he is made a slave by it. The fugitive from justice is delivered up to a sovereign State, which has no purposes to subserve against him, but to administer to him as it does to its own people, justice according to its laws. The fugitive from labor, on the other hand, is delivered up as a chattel, to the absolute control of his claimant, to be taken where he wills, subject to his selfish passions, and all his irresponsible power.
The distinction is so plain that no mind can fail to perceive it. The fugitive from justice has no trial by jury where he is seized, because he has no trial at all, and his right to liberty is not decided upon. The fugitive from labor is entitled to a trial by jury, because he must have a trial of some kind; his libery is passed upon, and the effect of the proceedings in the State where he is seized, is to reduce him from a state of liberty to one of slavery. And if making a man a slave is not "depriving him of liberty" then I am unable to know what is.
And now I have presented the three objections on which we rely as fully as I had intended. To me they seem conclusive. They seem to show, beyond all doubt, that the Act of congress under which the Relator is held, was not only an entire usurpation of power, but was an exercise of it in palpable violation of the constitution, and is therefore null and void. It may be said this position is contrary to precedent. There is great force in the ​doctrine of adhering to precedent, where rights of property might be unsettled by departing from them. In these matters it is sometimes said that it is more important that the law should be settled, than how it is settled. But it seems to me that in matters relating to personal liberty alone, this doctrine cannot apply with equal force. The only consequence in departing from a bad precedent there, would be that better justice would be done afterwards, than had been done before. And this could not be an evil.
The decision of the Somerset case, in England, was contrary to the precedents established by high authority, but Lord Mansfield was finally compelled to decide that the constitution of England was higher than judicial decisions. So we may say here, the constitution is the highest precedent we can have. But this doctrine, even if the court should feel bound by the Prigg case, affects only one of our objections. The other two stand unanswered, their validity admitted on all hands. There are no precedents against them. I hold therefore that our demurrer is sustained: that the matters and things set forth in the return of the Marshal do no justify in law, the detention of the Realtor, and that he is entitled to be discharged.
Let no man say that in advancing these doctrines I show myself an enemy to the constitution and Union of these States. Sir, I believe I feel as warm an attachment to them both, as is consistent with the duty of a man to feel for institutions formed by man. It is the constitution for which I have contended here. I have contended also for the Union, for it is only by maintaining the rights of the States, that the Union can be preserved. He who bares his breast in battle to defend his country against outward force, does well? But he who resists inward corruption and tyranny does better; for it has ever been the latter danger before which liberty has fallen!
And now in conclusion let me refer again to the existence of that power among us to which I alluded when I began. It is a fact of settled history that the early policy of the founders of our government, was to cherish and extend liberty, and to discourage and limit slavery. It is a fact of history equally well settled, that when by the invention of the cotton-gin, slave labor became more valuable, this policy was reversed. And then it was that began the separate, distinct existence of that power in this nation, since known familiarly as the slave power. And its influence from that time onward, upon the physical, intellectual and moral prosperity of the country, might be aptly compared to that of one of the Furies of Hell, upon the shysical world, as described by Tasso. He says:
* "Where she passes, the green trees
* Fade.—the sick Sun turns pale,—the living springs
* Stagnate, and cankers blight the flowery leas."
I have said this power adopted the policy of extending and perpetuating slavery. Adopting the vices of a past age as its virtue—saying like the fallen archangel—"evil! be thou my good!"—it has pursued this policy with a tenacity equalled only by the fell nature of the purpose itself. Eagle-eyed, sagacious, vigilant, unscrupulous and bold, neither the laws of God, nor the hopes and happiness of man have stood in its way. But in violation of the one, and to the destruction of th eother, it has gone on, building broader and more broad, its bloody altar, on which to immolate a human race, with all its mighty burden of earthly and immortal hopes! Laughing at plighted faith, mocking at right, poisoning the morals, darkening the intellect, blasting the prosperity of the people, and blighting the very physical earth beneath it, it has gone on like the genius of desolation, rioting in corruption, and revelling amid decay and death! Its baleful influence has not been confined to its own limits. It has spread abroad through the whole land like a moral pestilence and contagion. There have been none so high and none so low, that they have escaped its influence. It has expurgated the literature of the nation. It has shackled the press. The blood of a martyr to the freedom of the press, cries to Heaven from the soil of a neighboring State, for vengeance against this power. It has entered the church, turning the light of religion into darkness, and turning the words of blessing and love to the poor and lowly, into words of cursing and hate. It has seized on the political parties of the country, and made them play such fantastic tricks before high heaven, as makes the angels weep! Some of the concessions made to it have bdoubtless been external. But its great evil has been within—in the perverting influence it has exercised on the public heart. This has been so great, that the time has been within my recollection, when a man could not stand up on Bunker's Hill, and proclaim the truths for which they fell, whose heroic dust reposed beneath his feet, without subjecting himself to personal violence. I have myself seen a man mobbed in the District in Ohio, since represented in congress by Joshua R. Giddlings, for denouncing slavery not half so severly as it has since been denounced by the respresentative from that District, in the very Halls of Congress. This perverting influence has been so great that there is even yet among us, especially in our cities, a class of fawning parasites of power, who meet all arguments on this subject by some heartless sneer at the color of the race who have been the chief victims of this oppression. A class who plume themselves on being wiser than others, because they have advanced so far as to see that the Declaration of Independence is a lie—liberty a delusion—and equality the visionary dream of fanatics and fools! But it is useless to multiply details of the perverting influence of the slave power. All have seen it. Church and State, Priest and People have bowed before it, as plainly as the trees of the forest, the shrubs, the grass, and the waving grain, bend forward in the direction in which the driving gale sweeps along the Earth.
But it may be asked why I allude to this now? I do it in order to draw from it a two-fold conclusion. First, that it weakens very much, if it does not entirely destroy, the force of those decisions that have been made in favor of this power, while its influence on the public mind was so mighty and universal. We must remember that judges are, after all, but men. That although as a matter of theory, they are sometimes supposed to be above the reach of prejudice or passion, yet in practice it is often found to be different, and that they are influenced by the same prejudices and passions as other men. And I think the facts to which I have alluded, furnish just reason to believe, that a perverting influence that has reached and controlled almost every other class and department in the nation, has not been unfelt in the judiciary. I say it frankly and fearlessly,—I believe it has been felt there, and that is the only hypothesis on which I can account for such decisions as those I have examined.
An illustration of the matter in which that influence acted on the Northern Judiciary, may be found in the fact that Chancellor Walworth after his opinion against the law of '93, was nominated by one of the Presidents for a Judge fo the Supreme Court of the United States, but was rejected by the Senate, on account of that opinion, while Judge Nelson, who decided the other way, was afterwards nominated and confirmed, and is now enjoying his reward, and from all accounts deserving still further at the hands of the slave power.
The other conclustion which I wish to draw from this fact, is that it strengthens ten fold the force of those arguments in favor of resisting the encroachments of the general government and maintaining the reserved rights of the States. It is through that government only, that the slave power can act directly on the people of the free States. Through that, it can and does act upon them. Through that it can and will act upon them, to the extent that its power can be stretched.
We are accustomed to look upon our country as having already attained a very great degree of power and importance. This is in a sense true. But we have only to travel forward for a century or two, at the sober pace of reason, unassisted by the wings of imagination, in order to behold it bestriding this continent like a Colossus—possessing a power compared with which, that it now possesses would be like the pigmy compared with the giant. Emergencies will be doubtless arise in the course of its national existence that will call into being vast armies and navies. And if the general government is under the control of the slave power, these armies and navies will be under its control. And who can doubt that the power is capable of conceiving the fell purpose of annihilating liberty through all these States, and extending over them its own horrible institutions? Who can doubt that after conceiving this purpose it will carry into execution by the iron arm of military power? It will do this, not with the avowed purpose of overthrowing the constitution, but pretending that it sanctions their sacrilegious design. They will do it in the execution of so-called laws, passed in accordance with those precedents against which I have contended here. The contemplation of such a destiny for our country, fills the soul with darkness and gloom! When it shall come to pass, the great experiment which our fathers bgan in this New World will have failed! The light which they kindled, and which burned so brightly—shining like a beacon to the nations afar off—will have been extinguished! Liberty! the fairest, divinest guest that ever came from heaven to dwell with mortal man ​will have fled, sorrowing away forever, leaving the long train of coming generations to mourn her flight!
But let us hope that this destiny may not await us!—That among the inscrutable ways of Providence, some one may be opened by which this cup will pass from our lips. Let us maintain to the last some hope that liberty may not be entirely destroyed—that the cause of humanity may not entirely fail! And though the clouds are gathering faster and blacker above us, we are not altogether without reason for such a hope! For a number of years past there has been another reaction going on in this country against the influence of the slave power. And though the tide has ebbed and flowed—though in the actual conflicts, that power has retained possession of the battle field, yet the reaction against it has steadily increased and accumulated strength until the present day. The freemen of the North who have long reposed in conscious strength, with a generous forbearance towards the wrongs and insults of their deadly foe, have at last become aroused by provocations that could not be borne. They are marshaling their hosts for the coming conflict, between the two great antagonistical elements, liberty and slavery, that is to settle which shall finally fall before the other.—The trampling of the gathering hosts is already heard,—the murmuring of the rising storm is wafted upon every gale. the North is snapping asunder the bands that have bound it in subjection to the slave power, as Sampson broke the withs of tow! The last link that binds it, is the judicial sanction that power has received! Let that be broken, and the people are free! Can it not be broken? Can this great want of the public heart not be satisfied? Can we not have one decision in all this land, that shall vindicate liberty and law? I could almost believe that the angels in heaven, would bend forward over its battlements in eagerness to hear such a decision! That unborn generations would anticipate their time of life, and listen from the great womb of futurity, to the announcement of such a decision. But whether these things would be, or not, this I know, that it would be received by all the friends of humanity and law throughout this land, with such a thrill of heartfelt joy, as was never felt by a people before. Their hearts would be filled with new hopes,—hopes that this would be but the beginning of a more glorious end. hopes that there is to be a return to the true principles and wise policy of our fathers; that the Cosntitution as it stands is to be vindicated and maintained,—that Courts are to be places where liberty is favored & human rights protected, and not where judges are to exercise their ingenuity, to evade & overturn the great safeguards of the Constitution and trample on the liberties of the people! Their hearts would be filled with new and glorious hopes, that this Temple of Liberty, which our fathers builded, is to be purified. That the traffickers in the blood and bones of immortal man, shall be driven from its sacred precints; and that with a broad continent for its broad foundation, and the blue heaven that bends above us for its arch, it shall be inhabited by one great band of brothers, with no spot where the darkness of bondage shall remain,—but that all over, from ocean to ocean, and from the eternal ice mountains of the north, to the burning zone, it shall be illumined by the light of liberty, as the Celestial City, is lighted by the glory of God!
I am aware that I owe an apology to the Court and to all engaged in the case, for occupying their time so long. The only excuse I can offer, is the vital importance of the question, or at least my sincere conviction of its importance; and the fact that we were obliged to meet, and overcome if possible, the current of decisions, which, so far as they were of any force, has been against us. And thanking the Court most earnestly, for its kind attention and indulgence, I have finished what I had to say.
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