# Freedom National; Slavery Sectional

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FREEDOM NATIONAL; SLAVERY SECTIONAL
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MR. SUMNER'S SPEECH
FOR THE
REPEAL OF THE FUGITIVE SLAVE BILL.
SPEECH
OF
HON. CHARLES SUMNER,
OF MASSACHUSETTS,
ON HIS MOTION TO
REPEAL THE FUGITIVE SLAVE BILL
IN THE SENATE OF THE UNITED STATES, AUGUST 26, 1852
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If any man thinks that the interest of these Nations and the interest of Christianity are two separate and distinct things, I wish my soul may never enter into his secret. Oliver Cromwell
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SPEECH
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On the Senate floor, May 26, 1852 the following occurred:
MR. SUMNER: I hold in my hand, and desire to present, a memorial from the representatives of the Society of Friends in New England, formally adopted at a public meeting, and authenticated by their clerk, in which they ask for the repeal of the Fugitive Slave Bill. After setting forth their sentiments on the general subject of slavery, the memorialists proceed as follows:
   We therefore, repectfully, but earnestly and sincerely, entreat you to repeal the law of the last Congress respecting fugitive slaves; first and principally, because of its injustice towards a long sorely-oppressed and deeply injured people; and, secondly, in order that we, together with other conscientious sufferers, may be exempted from the penalties which it imposes on all, who in faithfulness to their Divine Master, and in discharge of their obligations to their distressed fellow-men, feel bound to regulate their conduct, even under the heaviest penalties which man can inflict for so doing, by the Divine injunction, 'All things whatsoever ye would that men should do to you, do you even so to them;' [Matthew 7:12] and by the other commandment, 'Thou shalt love the Lord thy God with all they heart, and they neighbor as thyself.' [Matthew 22:36]
Mr. President, this memorial is commended by the character of the religious association from which it proceeds - men who mingle rarely in public affairs, but with austere virtue seek to carry the Christian rule into life.
THE PRESIDENT: The Chair will have to interpose. The Senator is not privileged to enter into a discussion of the subject now. The contents of the memorial, simply are to be stated, and then it becomes a question whether it is to be received, if any objection is made to its reception. Silence gives consent. After it is received he can make a motion with regard to its references, and then make any remarks he thinks proper.
MR. SUMNER: I have but a very few words to add, and then I propose to move the reference of the memorial to the Committee on the Judiciary.
THE PRESIDENT: The memorial has first to be received before any motion as to is reference can be entertained. The Senator presenting a memorial states distinctly its objects and consents; then it is sent to the chair, if a reference of it is desired. But is it not in order to enter into a discussion of the merits of the memorial until it has been received.
MR. SUMNER: I do not propose to enter into any such discussion I have already read one part of the memorial, and it was my design merely to refer the character of the memorialists - a usage which I have observed on the floor constantly - to state the course I should pursue, and then conclude with a motion for a reference.
THE PRESIDENT: The Chair will hear the Senator, if such is the pleasure of the Senate, if he does not go into an elaborate discussion.
MR. SUMNER: I have no such purpose.
MR. DAWSON: Let him be heard.
SEVERAL SENATORS: Certainly
MR. SUMNER: I observed that this Memorial was commended by the character of the religious association from which it proceeds. It is commended, also, by its earnest and persuasive tone, and by the prayer which it presents. Offering it now, sir, I desire simply to say, that I shall deem it my duty, on some proper occasion hereafter, to express myself at length on the matter to which it relates. Thus far, during this session, I have forborne. With the exception of an able speech from my colleague [Mr Davis] the discussion of this all-absorbing question has been mainly left with Senators from another quarter of the country, by whose mutual differences it has been complicated, and between whom I have not cared to interfere. But, there is a time for all things. Justice, also, requires that both sides should be heard; and I trust not to expect too much, when, at some fit moment, I bespeak the clear and candid attention of the Senate, while i undertake to set forth, frankly and fully, and with entire respect for this body, convictions, deeply cherished in my own State, though disregarded here - to which I am bound by every sentiment of the heart, by every fibre of my being, by all my devotion to country, by my love of God and man. But, upon these I do not now enter. Suffice it, for the present, to say, that when I shall undertake that service, I believe I shall utter nothing which, in any just sense, can be called sectional, unless the Constitution is sectional, and unless the sentiments of the fathers were sectional. It is my happiness to believe, and my hope to be able to show, that, according to the true spirit of the Constitution, and according to the sentiments of the fathers, freedom, and not slavery, is national; while slavery, and not freedom, is sectional. In duty to the petitioners, and with the hope of promoting their prayer, I move the reference of their petition to the Committee on the Judiciary.
[A brief debate ensues, in which Messrs. Mangum, Badger, Hale, Clemons, Dawson, Adams, Butler and Chase take part; and on motion of Mr. Badger, the Memorial was laid on the table.]
On Thursday, 27th July, the subject was again presented by Mr. Sumner to the Senate.
MR. SUMNER: Mr. President, I have a Resolution which I desire to offer; and I wish, also, to give notice that I shall expect to call it up to-morrow, at an early moment in the morning hour, when I shall throw myself upon the indulgences of the Senate to be heard upon it
The resolution was then read as follows
   Resolved, That the Committee on the Judiciary be requested to consider the expediency of reporting a bill for the immediate repeal of the Act of Congress, approved September 18, 1850, usually known as the Fugitive Slave Act.
Following the reading of the resolution, on the next day, during the morning hour, an attempt was made by Mr. Sumner to call it up
MR. SUMNER: Mr. President, I now ask permission of the Senate to take up the Resolution which I offered yesterday. For that purpose, I move that prior orders be postponed, and upon this motion I desire to say a word. In asking the Senate to take up this Resolution for consideration, I say nothing now of its merits, nor of the arguments by which it may be maintained; nor do I at this stage anticipate any objections to it on these grounds. All this will properly belong to the discussion of the Resolution itself - the main question - when it is actually before the Senate. The single question now is, not the Resolution, but whether I shall be heard upon it. As a Senator, under the responsibilities of my position, I have deemed it my duty to offer this Resolution. I may seem to have postponed this duty to an inconvenient period of the session; but had I attempted it at an earlier day, I might have exposed myself to a charge of a different character. It might then have been said that, a new-comer and inexperienced in this scene, without deliberation, hastily, rashly, recklessly, I pushed this question before the country. This is not the case now. I have taken time, and in the exercise of my most careful discretion now ask the attention of the Senate. I shrink from any appeal founded on a trivial personal consideration; but should the I be blamed for delay latterly, I may add, that though in my seat daily, my bodily health for some time past, down to this very week, has not been equal to the service I have undertaken. I am not sure that it is now; but I desire to try. And now again I say, the question is simply whether I shall be heard. In allowing me this privilege - this right, I might say - you do not commit yourselves in any way to the principle of the Resolution; but you merely follow the ordinary usage of the Senate, and yield to a brother Senator the opportunity which he craves, in the practical discharge of his duty, to express convictions dear to his heart, and dear to a large number of his constituents. For the sake of these constituents, for my own sake, I now desire to be heard. Make such disposition of my Resolution afterward as you shall seem best; visit upon me any degree of criticism, censure, or displeasure, but do not deprive me of a hearing. "Strike, but hear."
[A debate ensued in which Messrs. Mason, Brooke, Charlton, Shields, Gwin, Douglas, Butler, and Borland took part. Objections to taking up the Resolution were pressed on the ground of "want of time", the "lateness of the session", and "danger to the Union" The question being then taken upon the motion of Mr Sumner to take up his Resolution, it was rejected - YEAS 10, NAYS 32 - as follows:]
   Yays: Messrs. Clarke, Davis, Dodge of Wisconsin, Foot, Hamlin, Seward, Shields, Sumner, Upham, and Wade.
   Nays: Messrs. Borland, Brodhead, Brooke, Cass, Charlton, Clemens, Desaussure, Dodge of Iowa, Douglas, Downs, Felch, Fish, Geyer, Gwin, Hunter, King, Mallory, Magnum, Mason, Meriwether, Miller, Morton, Norris, Pearce, Pratt, Rusk, Sebastian, Smith, Soule, Spruance, Toucey, and Weller.
Thursday, August 26, 1852
[The Civil and Diplomatic Appropriations Bill being under consideration, the following amendment was moved by the Committee on Finance]
   That where the ministerial officers of the United States have or shall incur extraordinary expenses in executing the laws thereof, the payment of which is not specifically provided for, the President of the United States is authorized to allow the payment thereof, under special taxation of the District or Circuit Court of the district in which the said services have been or shall be rendered, to be paid from the appropriation for defraying the expenses of the judiciary.
[Mr Sumner moved the following amendment to the amendment:]
   Provided, That no such allowance shall be authorized for any expense incurred in executing the Act of September 18, 1850, for the surrender of fugitives from service to labor; which said Act is hereby repealed.
[On this he took the floor, and spoke as follows:]
MR. SUMNER: MR. President, here is a provision for extraordinary expenses incurred in executing the laws of the United States. Extraordinary expenses! Sir, beneath these specious words lurks the very subject on which, by a solemn vote of this body, I was refused a hearing. Here it is; no longer open to the charge of being an "abstraction," but actually presented for practical legislation; not introduced by me, but by one of the important committees of the Senate; not brought forward weeks ago, when there was ample time for discussion, but only at this moment, without any reference to the late period of the session. The amendment, which I now offer, proposes to remove one chief occasion of these extraordinary expenses. And now, at last, among these final crowded days of our duties here, but at the earliest opportunity, I am to be heard; not as a favor, but as a right. The graceful usages of this body may be abandoned, but the established privileges of debate cannot be abridged. Parliamentary courtesy may be forgotten, but parliamentary law must prevail. The subject is broadly before the Senate. By the blessing of God, it shall be discussed.
Sir, a severe lawgiver of Greece vainly sought to secure permanence for his imperfect institutions, by providing that citizen, who at any time, attempted an alteration or repeal of any part thereof, should appear in the public assembly with a halter around his neck, ready to be drawn if his proposition failed to be adopted. A tyrannical spirit among us, in unconscious imitation of this antique and discarded barbarism, seeks to surround an offensive institution with a similar safeguard. In the existing distemper of the public mind and at this present juncture, no man can enter upon the service which I now undertake, without a personal responsibility, such as can be sustained only by that sense of duty which, under God, is always our best support. That personal responsibility I accept. Before the Senate and the country let me be held accountable for this act, and for every word which I utter.
With me, sir, there is no alternative. Painfully convinced of the unutterable wrongs and woes of slavery; profoundly believing that, according to the true spirit of the Constitution and the sentiments of the fathers, it can find no place under our National Government - that is in every respect sectional, and in no respect national that is is always everywhere the creature and dependent of the States, and never anywhere the creature or dependent of the Nation, and that the Nation can never, by legislative or other act, impart to it any support, under the Constitution of the United States; with these convictions, I could not allow this session to reach its close, without making or seizing an opportunity to declare myself openly against the usurpation, injustice, cruelty, of the late enactment by Congress for the recovery of fugitive slaves. Full well I know, sir, the difficulties of this discussion, arising from prejudices of opinion and from adverse conclusions, strong and sincere as my own. Full well I know that I am in a small minority, with few here to whom I may look for sympathy or support. Full well I know that I must utter things unwelcome to many in this body, which I cannot do without pain. Full well I know that the institution of slavery in our country, which I now proceed to consider, is as sensitive as it is powerful - possessing a power to shake the whole land with a sensitiveness that shrinks and trembles at the touch. But, while things may properly prompt me to caution and reserve, they cannot change my duty, or my determination to perform it. For this I willingly forget myself, and all my personal consequences. The favor and good-will of my fellow-citizens, of my brethren of the Senate, sir - grateful to me as it justly is - I am ready, if required, to sacrifice. All that I am or may be, I freely offer to this cause.
And here allow me, for one moment, to refer to myself and my position. Sir, I have never been a politician. The slave of principles, I call no party master. By sentiment, education, and conviction, a friend of Human Rights, in their utmost expansion, I have ever most sincerely embraced the Democratic Idea; not, indeed, as represented or professed by any party, but according to its real significance, as transfigured in the Declaration of Independence, and in the injunctions of Christianity. In this Idea I saw no narrow advantages merely for individuals or classes, but the sovereignty of the people and the greatest happiness of all secured by equal laws. Amidst the vicissitudes of public affairs, I trust always to hold fast to this Idea, and to any political party which truly embraces it.
Party does not constrain me; nor is my independence lessened by any relations to the office which gives me a title to be heard on this floor. And here, sir, I may speak proudly. By no effort, by no desire of my own, I find myself a Senator of the United States. Never before have I held public office of any kind. With the ample opportunities of private life I was content. no tombstone for me could bear a fairer inscription that this: "Here lies one who, without the honors or emoluments of public station, did something for his fellowman." From such simple aspirations I was taken away by the free choice of my native Commonwealth, and placed in this responsible post of duty, without personal obligation of any kind, beyond what was implied in my life and published words. The earnest friends, by whose confidence I was first designated, asked nothing from me, and, throughout the long conflict which ended in my election, rejoiced in the position which I most carefully guarded. To all my language was uniform, that I did not desire to be brought forward; that I would do nothing to promote the result; that i had no pledges or promises to offer; that the office should seek me, and not I the office; and that it should find me in all respects an independent man, bound to no party and to no human being, but only, according to my best judgment, to act for the good of all. Again, sir, I speak with pride, both for myself and others, when I add that these avowals found a sympathizing response. In this spirit I have come here, and in this spirit I shall speak today.
Rejoicing in my independence and claiming nothing from party ties, I throw myself upon the candor and magnanimity of the Senate. I now ask your attention; but I trust not to abuse it. i may speak strongly; for I shall speak openly and from the strength of my convictions. i may speak warmly; for I shall speak from the heart. But in no event can I forget the amenities which belong to debate, and which especially become this body. Slavery I must condemn with my whole soul; but here I need only borrow the language of slaveholders themselves; nor would it accord with my habits or my sense of justice to exhibit them as the impersonation of the institution - Jefferson calls it the "enormity" - which they cherish. Of them I do not speak; but without fear and without favor, as without impeachment of any person, I assail this wrong. Again, sir, I may err; but it will be the Fathers. I plant myself on the ancient ways of the Republic, with its grandest names, its surest landmarks, and all its original altar-fires about me.
And now, on the very threshold, I encounter the objection that there is a final settlement, in principle and substance, of the question of Slavery, and that all discussion of it is closed. Both the old political parties of the country, by formal resolutions, have united in this declaration. On a subject which for years has agitated the public mind; which yet palpitates in every heart, and burns on every tongue; which, in its immeasurable importance, dwarfs all other subjects; which, by its constant and gigantic presence, throws a shadow across these Halls; which at this very time calls for appropriations to meet extraordinary expenses it has caused, they have imposed the rule of silence. According to them, sir, we may speak of everything except that alone, which is most present in all our minds.
To this combined effort I might fitly reply, that, with flagrant inconsistency, it challenges the very discussion which it pretends to forbid. Such a declaration, on the eve of an election, is, of course, submitted to the consideration and ratification of the people. Debate, inquiry, discussion, are the necessary consequence. Silence becomes impossible. Slavery, which you are profess to banish from the public attention, openly by your invitiation enters every political meeting and every political convention. nay, at this moment it stalks into this Senate, crying, like the daughters of the horseleech, "Give! give!"
But no unanimity of politicians can uphold the baseless assumption, that a law, or any conglomerate of laws, under the name of Compromise, or howsoever called, is final. Nothing can be plainer than this; that, by no parliamentary device or knot, can say Legislature tie the hands of a succeeding Legislature, so as to prevent the full exercise of its constitutional powers. Each legislature, under a just sense of its responsibility, must judge for itself; and, if it think proper, it may revise or amend, or absolutely undo the work of its predecessors. The laws of the Medes and Persians are proverbially said to have been unalterable; but they stand forth in history as a single example of such irrational defiance of the true principles of all law.
To make a law final, so as not to be reached by Congress, is, by mere legislation, to fasten a new provision on the Constitution. Nay, more; it gives to the law a character which the very Constitution does not possess. The wise fathers did no treat the country as a Chinese foot, never to grow after infancy; but, anticipating Progress, they declared expressly that their great Act is not final. According to the Constitution itself, there is not one of it existing provision - not even that with regard to fugitives from labor - which may not at all times be reached by amendment, and thus be drawn into debate. This is rational and just. Sir, nothing from man's hands, nor law, nor constitution, can be final. Truth alone is final.
Inconsistent and absurd, this effort is tyrannical also. The responsibility for the recent Slave Act and for Slavery everywhere within the jurisdiction of Congress necessarily involves the right to discuss them. To separate these is impossible. Like the twenty-fifth rules of the House of Representatives against petitions on Slavery - now repealed and dishonored - the Compromise, as explained and urged, is a curtailment of the actual powers of legislation, and a perpetual denial of the indisputable principle that the right to deliberate is coextensive with the responsibility for an act. To sustain Slavery, it is now proposed to trample on free speech. In any country this would be grievous; but here, where the Constitution expressly provides against abridging freedom of speech, it is a special outrage. in vain do we condemn the despotism's of Europe, while we borrow the rigors with which they repress Liberty, and guard their own uncertain power. For myself, in no factious spirit, but solemnly and in loyalty to the Constitution, as a Senator of Massachusetts, I protest against this wrong. On Slavery, as on every other subject, I claim the right to be heard. That right I cannot, I will not abandon. "Give me the liberty to know, to utter and to argue freely, above all liberties;" these are the glowing words which flashed from the soul of John Milton, in his struggles with English tyranny. With equal fervor they should be echoes now by every American, not already a slave.
But, sir, this effort is impotent as tyrannical. The convictions of the heart cannot be repressed. The utterances of conscience must be heard. They break froth with irrpressible might. As well attempt to the check the tides of Ocean, the currents of the Mississippi, or the rushing waters of Niagara. The discussion of Slavery will proceed, wherever two or three are gathered together - by the fireside, on the highway, at the public meeting, in the church. The movement agains Slavery is from the Everlasting Arm. Even now it is gathering its forces, soon to be confessed everywhere. It may not yet be felt in the high places of office and power; but all who can put their ears humbly to the ground, will hear and comprehend its incessant and advancing tread.
The relations of the Government of the United States - I speak of the National Government - to Slavery, though plain and obvious, are constantly misunderstood. A popular belief at this moment makes Slavery a national institution, and, of course, renders its support a national duty. The extravagance of this error can hardly be surpassed. An institution, which our fathers most carefully omitted to name in the Constitution, which, according to the debates in the Convention, they refused to cover with any "sanction," and which, at the original organization of the Government, was merely sectional, existing nowhere on the national territory, is now above all other things blazoned as national. Its supporters plume themselves as national. The old political parties, while upholding it, claim to be national. A National Whig is simply a Slavery Whig, and a National Democrat is simply a Slavery Democrat, in contradistinction to all who regard Slavery as a sectional institution, within the exclusive control of the States, and with which the nation has nothing to do.
As Slavery assumes to be national, so, by an equally strange perversion, Freedom is degraded to be sectional, and all who uphold it, under the national Constitution, share this name epithet. The honest efforts to secure its blessings, everywhere within the jurisdiction of Congress, are scouted as sectional; and this cause, which the founders of our National Government had so much as heart, is called sectionalism. These terms, now belonging to the commonplaces of political speech, are adopted and misapplied by the most persons without reflection. But herein is the power of Slavery. According to a curious tradition of the French language, Louis XIV, the grand monarch, by an accidental error speech, among supple courtiers, changed the gender of a noun; but Slavery has done more than this. It has changed word for word. It has taught many to say national, instead of sectional, and sectional instead of national.
Slavery national! Sir, this is all a mistake and absurdity, fir to take a place in some new collection of Vulgar Errors, by some other Sir Thomas Browne, with the ancient but exploded stories, that the toad has stone in its head, and that ostriches digest iron. According to the true spirit of the Constitution, and the sentiments of the Fathers, Slavery and not Freedom is sectional, which Freedom and not Slavery is national. On this unanswerable proposition I take my stand, and here commences my argument.
The subject presents itself under two principle heads; FIRST, the true relations of the National Government to Slavery, wherein it will appear that there is no national fountain out of which Slavery can be derived, and no national power, under the Constitution, by which it can be supported. Enlightened by this general survey, we shall be prepared to consider, SECONDLY, the true nature of the provision for the rendition of fugitives from labor, and herein especially the unconstitutional and offensive legislation of Congress in pursuance thereof.
I. And now for the TRUE RELATIONS OF THE NATIONAL GOVERNMENT TO SLAVERY. These will be readily apparent, if we do not neglect well-established principles.
If Slavery be national, if there by any power in the National Government to uphold this institution - as in the recent Slave Act - it must be by virtue of the Constitution. nor can it be by mere inference, implication, or conjecture. According to the uniform admission of courts and jurists in Europe, again and again promulgated in our country, Slavery can be derived only from clear and special recognition. "The state of Slavery," said Lord Mansfield, pronouncing judgment in the great case of Somersett, "is of such a nature, that it is incapable of being introduced on any reasons moral or political, but only by positive law. It is so odious, that nothing can be suffered to support it but POSITIVE LAW." And a slaveholding tribunal, the Supreme Court of Mississippi, adopting the same principle, has said:
   "Slavery is condemned by reason, and the laws of nature. It exists and can exist only through municipal regulations."
And another slaveholding tribunal, the Supreme Court of Kentucky, has said:
   "We view this as a right existing by positive law of a municipal character, without foundation in the law of nature or the unwritten and uncommon law.
Of course every power to uphold Slavery must have an origin as distinct as that of Slavery itself. Every presumption must be as strong against such a power as against Slavery. A power so peculiar and offensive, so hostile to reason, so repugnant to the law of nature and the inborn Rights of Man; which despoils its victims of the fruits of their labor; which substitutes concubinage for marriage; which abrogates the relation of parent and child; which, by a denial of education, abases the intellect, prevents a true knowledge of God, and murders the very soul; which, amidst a plausible physical comfort, degrades man, created in the divine image, to the level of a beast; - such a power, so eminent, so transcendent, so tyrannical, so unjust, can find no place in any system of Government, unless by virtue of positive sanction. It can spring from no doubtful phrases. it must be declared by unambiguous words, incapable of a double sense.
Slavery, I now repeat, is not mentioned in the Constitution. The name Slave does not pollute this Charter of our Liberties. No "positive" language gives to Congress any power to make a Slave or to hunt a Slave. To find even any seeming sanction for either, we must travel, with doubtful footsteps, beyond its express letters, into the region of interpretation. But here are rules which cannot be disobeyed. With electric might for Freedom, they send a pervasive influence through every provision, clause and the word of the Constitution. Each and all make Slavery impossible as a national institution. They efface from the Constitution every fountain out of which it can be derived.
First and foremost, is the Preamble. This discloses the prevailing objects and principles of the Constitution. This is the vestibule through which all must pass, who would enter the sacred temple. here are the inscriptions by which they are earliest impressed. Here they first catch the genius of the place. here the proclamation of Liberty is soonest heard. "We the People of the United States," says the Preamble, "in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Thus, according to undeniable words, the Constitution was ordained, not to establish, secure, or sanction Slavery - not to promote the special interests of slaveholders - not to make Slavery national, in any way, form, or manner; but to "establish justice," "promote the general welfare," and "secure the blessings of Liberty." Here surely Liberty is national.
Secondly. Next in importance to the Preamble are the explicit contemporaneous declarations in the Convention which framed the Constitution, and elsewhere, expressed in different forms of language, but all tending to the same conclusion. By the Preamble, the Constitution speaks for Freedom. By these declarations, the Fathers speak as the Constitution speaks. Early in the Convention, Governor Morris, of Pennsylvania, broke forth in the language of an Abolitionist: "He never would concur in upholding domestic slavery. It was a nefarious institution. it was the curse of Heaven on the State where it prevailed." Oliver Ellsworth, of Connecticut, said: "The morality or wisdom of Slavery are considerations belonging to the State themselves." According to him, Slavery was sectional.
At a later day, a discussion ensued on the clause touching the African slave trade, which reveals the definitive purposes of the Convention. From the report of Mr. Madison we learn what was said. Elbridge Gerry, of Massachusetts, "though we had nothing to do with the conduct of the States as to Slavery, but we ought to be careful not to give any sanction to it." According to these words, he regarded Slavery as sectional, and would not make it national. Roger Sherman, of Connecticut, "was opposed to any tax on slaves imported, as making the matter worse, because it implied they were property." he would not have Slavery national. After debate the subject was committed to a committee of eleven, who subsequently reported a substitute, authorizing "a tax on such migration or importation, at a rate not exceeding the average of duties laid on imports." This language, classifying persons with merchandise, seemed to imply a recognition that they were property. Mr. Sherman at once declared himself "against this part, as acknowledging men to be property, by taxing them as such under the character of slaves." Mr. Gorham "thought Mr. Sherman should consider the duty not as implying that slaves are property, but as a discouragement to the importation of them." Mr. Madison, in mild juridical phrase, "thought it wrong to admit in the Constitution the idea that there could be property in man." After discussion it was finally agreed to make the clause read:
   "But a tax or duty may be imposed on such importation, not exceeding ten dollars for each person." [Art. 1 Sec. 9]
The difficulty seemed then to be removed, and the whole clause was adopted. This record demonstrates that the word "person" was employed in order to show that slaves, everywhere under the Constitution, were always to be regarded as persons, and not as property, and thus to exclude from the Constitution all idea that there can be property in man. Remember well, that Mr. Sherman was opposed to the clause in its original form, "as acknowledging men to be property;" that Mr. Madison was also opposed to it, because he "though it wrong to admit in the Constitution the idea that there could be property in man;" and that, after these objections, the clause was so amended as to exclude the idea. But Slavery cannot be national, unless this idea is distinctly and unequivocally admitted into the Constitution.
Nor is this all. Int he Massachusetts Convention, to which the Constitution, when completed, was submitted for ratification, a veteran of the Revolution, General Heath, openly declared that, according to his view, Slavery was sectional, and not national. His language was pointed. "I apprehend," he said, "that it is not in our power to do anything for or against those who are in Slavery in the Southern States. No gentleman within these walls detests every idea of Slavery more than I do; it is generally detested by people of this Commonwealth; and I ardently hope the time will soon come, when our brethren in the Southern States will view it as we do, and put a stop to it; but to this we have no right to compel them. Two questions naturally arise: If we ratify the Constitution, shall we do anything by our act to hold the blacks in slavery - or shall we become partakers in other men's sins? I think neither of them."
Afterwards, in the first Congress under the Constitution, on a motion which was much debated, to introduce into the Impost Bill a duty on the importation of Slaves, the same Roger Sherman, who in the National Convention had opposed the idea of property in man, authoritatively exposed the true relations of the Constitution to Slavery. His language was, that "The Constitution does not consider these persons as property; it speaks of them as persons."
Thus distinctly and constantly, from the very lips of the framers of the Constitution, we learn the falsehood of the recent assumptions in favor of Slavery and in derogation of Freedom.
Thirdly. According to a familiar rule of interpretation, all laws concerning the same matter, in pari materia, are to be construed together. By the same reason, the grand political acts of the Nation are to be construed together, giving and receiving light from each other. Earlier than the Constitution was the Declaration of Independence, embodying, in immortal words, those primal truths to which our country pledged itself with its baptismal vows as a Nation. "We hold these truths to be self-evident," says the Nation, "that all men are created equal, that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed." But this does not stand alone. There is another national act of similar import. on the successful close of the Revolution, the Continental Congress, in an address to the people, repeated the same lofty truth. "Let it be remembered," said the Nation again, "that it has ever been the pride and boast of America, that the rights for which she has contended were the rights of human nature. By the blessing of the Author of these rights, they have prevailed over all opposition, and form the basis of thirteen independent States." Such were the acts of the Nation in its united capacity. Whatever may be the privileges of States in their individual capacities, within their several local jurisdictions, no power can be attributed to the Nation, in the absence of positive, unequivocal grant, inconsistent with these two national declarations. Here, sir, is the national heart, the national soul, the national will, the national voice, which must inspire our interpretation of the Constitution, and enter into and diffuse itself through all the national legislation. Thus again is Freedom national.
Fourthly. Beyond these is a principle of the common law, clear, and indisputable, a supreme rule of interpretation from which in this case there can be no appeal. In any question under the Constitution every word is to be construed in favor of liberty. This rule, which commends itself to the natural reason, is sustained by time-honored maxims of our early jurisprudence. Blackstone aptly expresses it, when he says that "the law is always ready to catch at anything in favor of liberty." The rule is repeated in various forms. Favores ampliandi sunt; odia restringenda. Favors are to be amplified ; hateful things to be restrained. Lex Anglice est lex misericordia. The law of England is a law of mercy. Anglice jura in oinni casu libertati dant favorem. The laws of England in every case show favor to liberty. And this sentiment breaks forth in natural, though intense, force, in the maxim: Impius el crudelis judicandus est qui libertati non favet. He is to be adjudged impious and cruel who does not favor liberty. Reading the Constitution in the admonition of these rules, again I say Freedom is national.
Fiftly From a learned judge of the Supreme Court of the United States, in an opinion of the Court, we derive the same lesson. In considering the question, whether a State can prohibit the importation of slaves as merchandise, and whether Congress, in the exercise of its power to regulate commerce among the States, can interfere with the slave-trade between the States, a principle has been enunciated, which, while protecting the trade from any intervention of Congress declares openly that the Constitution acts upon no man as property. Mr. Justice McLean says : " If slaves are considered in some of the States as merchandise, that cannot divest them of the leading and controlling quality of persons by which they are designated in the Constitution. The character of property is given them by the local law. This law is respected, and all rights under it are protected by the Federal authorities ; but the Constitution acts upon slaves as persons, and not as property. * * * "The power over Slavery belongs to the States respectively. It is local in its character, and in its effects." {Groves v. Slaughter, 15 Peters, R. 507.) Here again Slavery is sectional, while Freedom is national.
Sir, such briefly are the rules of interpretation which, as applied to the Constitution, fill it with the breath of Freedom,
   Driving far off each thing of sin and guilt. [John Milton, "Comus" (I.,420)]
To the history and prevailing sentiments of the times we may turn for further assurance. In the Spirit of Freedom the Constitution was formed. In this spirit our Fathers always spoke and acted. In this spirit the National Government was first organized under Washington. And here I recall a scene, in itself a touchstone of the period, and an example for us, upon which we may look with pure national pride, while we learn anew the relations of the National Government to Slavery.
The Revolution had been accomplished. The feeble Government of the Confederation had passed away. The Constitution, slowly matured in a National Convention, discussed before the people, defended by masterly pens, had been already adopted. The thirteen States stood forth a nation, wherein was unity without consolidation, and diversity without discord. The hopes of all were anxiously hanging upon the new order of things and the mighty procession of events. With signal unanimity Washington was chosen President. Leaving his home at Mount Vernon, he repaired to New York, where the first Congress had already commenced its session, to assume his place as elected Chief of the Republic. On the thirtieth of April, 1789, the organization of the Government was completed by his inauguration. Entering the Senate Chamber, where the two Houses were assembled, he was informed that they awaited his readiness to receive the oath of office. Without delay, attended by the Senators and Representatives, with friends and men of mark gathered about him, he moved to the balcony in front of the edifice. A countless multitude, thronging the open street, and eagerly watching this great espousal,
    With reverence look on his majestic face,
    Proud to be less, but of his god-like race.
       [ John Dryden "To Sir Godfrey Kneller" (v75-76)]
The oath was administered by the Chancellor of New York. At this time, and in this presence, beneath the uncovered heavens, Washington first took this vow upon his lips : " I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States."
Over the President, on this high occasion, floated the National Flag, with its stripes of red, and its stars on a field of blue. As his patriot eyes rested upon the glowing ensign what currents have rushed swiftly through his soul! In the early days of the Revolution, in those darkest hours about Boston, after the battle of Bunker Hill, and before the Declaration of Independence, he thirteen stripes had been first unfurled by him, as the emblem of the Union among the Colonies for the sake of Freedom. By him, at that time, they had been named the Union flag. Trial, struggle, and war, were now ended, and the Union, which they first heralded was unalterably established. To every beholder, these memories must have been full of pride and consolation. But looking back upon the scene, there is one circumstance which, more than all its other associations, fills the soul; more even than the suggestions of Union, which I prize so much. At this moment, when Washington took his first oath to support the Constitution of the United States, the National Ensign, nowhere within the National Territory, covered a single slave. Then indeed, was Slavery sectional, and Freedom national.
On the sea, an execrable piracy, the trade in slaves was still, to the national scandal, tolerated under the national flag. In the states, as a sectional institution, beneath the shelter of local laws, Slavery unhappily found a home. But in the only territories at this time belonging to the Nation, the broad region of the North-west, it had already, by the Ordinance of Freedom, been made impossible, even before the adoption of the Constitution. The District of Columbia, with its fatal incumbrance, had not net been acquired.
The Government thus organized was Anti-Slavery in character. Washington was a slave-holder; but it would be unjust to his memory not to say that he was an abolitionist also. His opinions do not admit of question. Only a short time before the formation of the National Constitution, he had declared by letter, "that is was among his first wishes to see some plan adopted, by which Slavery may be abolished by law;" and again, in another letter, "That, in support of any legislative measure for the abolition of slavery, his suffrage should not be wanting;" and still further, in conversation with a distinguished European Abolitionist, a traveling propagandist of Freedom, Brissot de Warville, recently welcomed to Mount Vernon, he had openly announced, that to promote this object in Virginia, "He desired the formation of a Society, and that he would second it." By this authentic testimony, he takes his place with the early patrons of Abolition societies.
By the side of Washington, as standing beneath the national flag he swore to support the Constitution, were illustrious men, whose lives and recorded words now rise in judgment. There was John Adams, the Vice-President - great vindicator and final negotiator of our national independence - whose soul, flaming with freedom, broke forth in the early declaration, that "Consenting to Slavery is a sacrilegious breach of trust," and whose immitigable hostility to this wrong has been made immortal in his descendants. There also was a companion in arms, and attached friend of incomparable genius, the yet youthful Hamilton, who, as a member of the Abolition Society of New York, had only recently united in a solemn petition for those who, "though free by the laws of God, are held in Slavery by the laws of the State." There, too, was a noble spirit, the ornament of his country, the exemplar of truth and virtue, who, like the sun, ever held an unerring course, John Jay. Filling the important post of Minister of Foreign Affairs under the Confederation, he found time to organize the Abolition Society of New York, and to act as its President, until by the nomination of Washington, he became Chief Justice of the United States. In his sight, Slavery was an "iniquity," "a sin of crimson dye," against which, ministers of the gospel should testify, and which the Government should seek in every way to abolish. "Were I in the legislature," he wrote, "I would present a bill for this purpose with great care, and I would never cease moving it till it became a law, or I ceased to be a member. Till America comes into this measure, her prayers to heaven will be impious."
But they were not alone. The convictions and earnest aspirations of the country were with them. At the North these were broad and general. At the South they found fervid utterance from slaveholders. By early and precocious efforts for "total emancipation," the Author of the Declaration of Independence placed himself foremost among the Abolitionists of the land. In language now familiar to all, and which can never die, he perpetually denounced Slavery. He exposed its pernicious influences upon masters as well as slave; declared that the love of justice and the love of country pleaded equally for the slave, and that the "Abolition of domestic slavery was the greatest object of desire." He believed that the "sacred side was gaining daily recruits," and confidently looked to the young for the accomplishment of this good work. In fitful sympathy with Jefferson, was another honored son of Virginia, the Orator of Liberty, Patrick Henry, who, while confessing that he was a master of slaves, said: "I will not, I cannot justify it. However culpable my conduct, I will so far pay my devoir to virtue, as to own the excellence and rectitude of her precepts, and lament my want of conformity to them." At this very period, in the Legislature of Maryland, on a bill for the relief of oppressed slaves, a young man, afterwards by his consummate learning and forensic powers, the acknowledged head of the American bar, William Pinkney, is a speech of earnest, truthful eloquence - better far for his memory than his transcendent professional fame - branded Slavery as "iniquitious and most dishonorable;" "founded in a disgraceful traffic;" "as shameful in its continuance as in its origin;" and he openly declared, that, "By the eternal principles of natural justice, no master in the State has a right to hold his slave in bondage a single hour."
Thus at this time spoke the Nation. The Church also joined its voice. And here, amidst the diversities of religious faith, it is instructive to observe the general accord. The Quakers first bore their testimony. At the adoption of the Constitution, their whole body, under the early teaching of George Fox, and by the crowning exertions of Benezet and Woolman, and had become an organized band of Abolitionists, penetrated by the conviction that it was unlawful to hold a fellow-man in bondage. The Methodists, numerous, earnest, and faithful, never ceased by their preachers to proclaim the same truth. Their rules in 1788 denounced, in formal language, "the buying or selling bodies and souls of men, women, and children, with an intention to enslave them." The words of their great apostle, John Wesley, were constantly repeated. on the eve of the National Convention the burning tract was circulated, in which he exposes American slavery as the "vilest" of the world - "such Slavery as is not found among the Turks at Algiers;" and, after declaring "Liberty the birthright of every human creature, of which no human law can deprive him," he pleads, "If, therefore, you have any regard to justice, (to say nothing of mercy or the revealed law of God,) render unto all their due. Give liberty to whom liberty is due, that is, to every child of man, to every child of man, to every partaker of human nature." At the same time, the Presbyterians, a powerful religious body, inspired by the principles of John Calvin, in more moderate language, but by the public act, recorded their judgment, recommending "to all the people under their care to use the most prudent measures consistent with the interest and the state of civil society, to procure eventually the final abolition of Slavery in America." The Congregationalists of New England, also of the faith of John Calvin, and with the hatred of Slavery belonging to the great nonconformist, Richard Baxter, were sternly united against this wrong. As early as 1776, Samuel Hopkins, their eminent leader and divine, published his tract, showing it to be the Duty and Interest of the American States to Emancipate all their African slaves, and declaring that "Slavery is in every instance wrong, unrighteous, and oppressive - a very great and crying sin - there being nothing of the kind equal to it on the face of the earth." And, in 1791, shortly after the adoption of the Constitution, the second Jonathan Edwards, a twice-honored name, in an elaborate discourse often published, called upon his country, "in the present blaze of light" on the injustice of slavery, to prepare the way for "its total abolition." This he gladly thought at hand. "If we judge of the future by the past," said the celebrated preacher, "within fifty years from this time, it will be as shameful for a man to hold a negro slave, as to be guilty of common robbery or theft."
Thus, at this time, the Church, in harmony with the Nation, by its leading denominations, Quakers, Methodists, Presbyterians, and Congregationalists, thundered against Slavery. The Colleges were in unison with the Church. Harvard University spoke by the voice of Massachusetts, which had already abolished Slavery. Dartmouth College, by one of its learned Professors, claimed for the slaves "equal privileges with the whites." Yale College, by its President, the eminent divine, Ezra Stiles, became the head of the Abolition Society of Connecticut. And the University of William and Mary, in Virginia, testified its sympathy with this cause at this very time, by conferring upon Granville Sharpe, the acknowledged chief of British Abolitionists, the honorary degree of Doctor of Laws.
The Literature of the land, such as then existed, agreed with the Nation, the Church and the College. Franklin, in the last literary labor of his life; Jefferson, in his Notes on Virginia; Barlow, in his measured verse; Rush, in a work which inspired the praise of Clarkson; the ingenious author of the Algerine Captive - the earliest American novel, and though now but little known, one of the earliest American books published in London - were all moved by the contemplation of Slavery. "If out fellow-citizens of the Southern States are deaf to the pleadings of nature," the latter exclaims in his work, "I will conjure them, for the sake of consistency, to cease to deprive their fellow-creatures of freedom, which their writers, their orators, representatives, and senators, and even their Constitution of Government have declared to be the inalienable birthright of man." A female writer and poet, earliest in our country among the graceful throng, Sarah Wentworth Morton, at the very period of the National Convention admired by the polite society in which she lived, poured forth her sympathies also. The generous labors of John Jay in behalf of the crushed African inspired her muse; and, in another poem, commemorating a slave, who fell while vindicating his Freedom, she rendered a truthful homage to his inalienable rights, in words which I now quote as part of the testimony of the times:
    Does not the voice of reason cry,
    "Claim the first night that Nature gave;
    From the red scourge of bondage fly,
    Nor deign to live a burdened slave?"
       [Sarah Wentworth Morton "The African Chief" (v13-16)]
Such, sir, at the adoption of the Constitution and at the first organization of the National Government, was the outspoken, unequivocal heart of the country. Slavery was abhorred. Like the slave trade, it was regarded as temporary; and, by many, it was supposed that they would both disappear together. As the oracles ceased or grew mute at the coming of Christ, and a voice was heard, crying to mariners at sea, "Great Pan is dead," so at this time Slavery became dumb, and its death seemed to be near. Voices of Freedom filled the air. The patriot, the Christian, the scholar, the writer, the poet, vied in loyalty to this cause. All were Abolitionists.
Glance now at the earliest Congress under the Constitution. From various quarters memorials were presented to this body against Slavery. Among these was one form the Abolition Society of Virginia, wherein Slavery is pronounced "not only an odious degradation, but an outrageous violation of one of the most essential rights of human nature, and utterly repugnant to the precepts of the Gospel." Still another, of a more important character, came from the Abolition Society of Pennsylvania, and was signed by Benjamin Franklin, as President. This venerable man, whose active life had been devoted to the welfare of mankind at home and abroad - who, both as philosopher and statesman, had arrested the admiration of the world - who had ravished the lightning from the skies and the sceptre from a tyrant - who, as a member of the Continental Congress, had set his name to the Declaration of Independence, and, as a member of the National Convention, had again set his name to the Constitution - in whom more, perhaps, than in any other person, was embodied the true spirit of American institutions, at once practical and humane - than whom no one could be more familiar with the purposes and aspirations of the founders - this veteran, eighty-four years of age, within a few months of his death, now appeared by petition at the bar of that Congress, whose powers he had helped to define and establish. This was the last political act of his long life. Listen to the prayer of Franklin.
   "Your memorialists, particularly engaged in attending to the distresses arising from Slavery, believe it to be their indispensable duty to present this subject to your notice. They have observed with real satisfaction that many important and salutary powers are vested in you for promoting the welfare and securing the blessings of liberty to the people of the United States; and as they conceive that these blessings ought rightfully to be administered, without distinction of color to all descriptions of people, so they indulge themselves in pleasing expectation, that nothing which can be done for the relief of the unhappy objects of their care, will be either omitted or delayed" "Under these impressions, they earnestly entreat your serious attention to the subject of Slavery; that you would be pleased to countenance the restoration of liberty to those unhappy men, who alone, in this land of Freedom, are degraded into perpetual bondage, and who, amidst the general joy surrounding the freemen, are groaning in servile subjection; that you will promote mercy and justice towards this distressed race, and that you will step to the verge of the power vested in you for DISCOURAGING every species of traffic in the persons of our fellow men."
Important words! in themselves a key-note of the times. From his grave Franklin seems still to call upon Congress to step to the very verge of the powers vested in it to discourage Slavery; and, in making this prayer, he proclaims the true national policy of the Fathers. Not encouragement but discouragement of Slavery was their rule.
Sir, enough has been said to show the sentiment which, like a vital air, surrounded the National Government as it stepped into being. in the face of this history, and in the absence of any positive sanction, it is absurd to suppose that Slavery, which under the Confederation was merely sectional, was now constituted a national institution. Our fathers did not say with the apostate angel, "Evil be thou my good!" In a different spirit they cried out to Slavery, "Get thee behind me, Satan!"
But there is yet another link in the argument. In the discussions which took place in the local conventions on the adoption of the Constitution, a sensitive desire was manifested to surround all persons under the Constitution with additional safeguards. Fears were expressed, from the supposed indefiniteness of some of the powers conceded to the National Government, and also from the absence of a Bill of Rights. Massachusetts, on ratifying the Constitution, proposed a series of amendments, at the head of which was this, characterized by Samuel Adams, in the Convention, as "A summary of a Bill of Rights:"
   "That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised."
Virginia, South Carolina, and North Carolina, with minorities in Pennsylvania and Maryland, united in this proposition. In pursuance of these recommendations, the first Congress presented for adoption the following article, which, being ratified by a proper number of States, became part of the Constitution, as the 10th amendment:
   "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."
Stronger words could not be employed to limit the power under the Constitution, and to protect the people from all assumptions of the National Government, particularly in derogation of Freedom. its guardian character commended it to the sagacious mind of Jefferson, who said: "I consider the foundation corner-stone of the Constitution of the United States to be laid upon the tenth article of the amendment." And Samuel Adams, ever watchful for Freedom, said: "It removed a doubt which many have entertained respecting the matter, gives assurance that, if any law made by the Federal Government shall be extended beyond the power granted by the Constitution, and inconsistent with the Constitution of this State, it will be an error, and adjudged by the courts of law to be void."
Beyond all question, the National Government, ordained by the Constitution, is not general or universal; but special and particular. It is a Government of limited powers. It has no power which is not delegated. Especially is this clear with regard to an institution like Slavery. The Constitution contains no power to make a King or to support kingly rule. With similar reason it may be said, that it contains no power to make a slave or to support a system of Slavery. The absence of all such power is hardly more clear in one case than in the other. But if there be no such power, all national legislation upholding Slavery must be unconstitutional and void. The stream cannot be higher than the fountain-head. Nay more, nothing can come out of nothing; the stream cannot exist, if there be no springs from which it is fed.
At the risk of repetition, but for the sake of clearness, review now this argument, and gather it together. Considering that Slavery is of such an offensive character that it can find sanction only in "positive law," and that it has no such "positive" sanction in the Constitution; that the Constitution, according to its Preamble, was ordained "to establish justice" and "secure the blessings of liberty;" that, in the Convention which framed it, and also elsewhere at the time, it was declared not to sanction Slavery; that, according to the Declaration of Independence and the Address of the Continental Congress, the Nation was dedicated to "liberty" and the "rights of human nature;" that, according to the principles of the common law, the Constitution must be interpreted openly, actively, and perpetually, for Freedom; that, according to the decision of the Supreme Court, it acts upon slaves, not as property, but as persons; that, at the first organization of the National Government under Washington, Slavery had not national favor, existed nowhere on the national territory beneath the national flag, but was openly condemned by the Nation, the Church, the Colleges, and Literature of the time; and, finally, that according to an Amendment of the Constitution, the National Government can only exercise powers delegated to it, among which there is none to support Slavery; considering these things, sir, it is impossible to avoid the single conclusion that Slavery is in no respect a national institution, and that the Constitution nowhere upholds property in man.
But there is one other special provision of the Constitution, which I have reserved to this stage, not so much from its superior importance, but because it may fitly stand by itself. This alone, if practically applied, would carry Freedom to all within its influence. It is an amendment proposed by the first Congress, as follows:
   "No person shall be deprived of life, liberty, or property, without due process of law."
Under this aegis the liberty of every person within the national jurisdiction is unequivocally placed. I say every person. Of this there can be no question. The word "person" in the Constitution embraces every human being within its sphere, whether Caucasian, Indian, or African, from the President to the slave. Show me a person, no matter what his condition, or race, or color, within the national jurisdiction, and I confidently claim for him this protection. The natural meaning of the clause is clear, but a single fact of its history places it in the broad light of noon. As originally recommended by North Carolina and Virginia, it was restrained to the freeman. Its language was, "No freeman ought to be deprived of his life, liberty, or property, but by the law of the land." In rejecting this limitation, the authors of the amendment revealed their purpose, that no person, under the National Government, of whatever character, shall be deprived of liberty without due process of law; that is, without due presentment, indictment, or other judicial proceedings. Here by this Amendment is an express guaranty of a Personal Liberty, and an express prohibition against its invasion anywhere, at least within the national jurisdiction.
Sir, apply these principles, and Slavery will again be as when Washington took his first oath as President. The Union Flag of the Republic will become once more the flag of Freedom, and at all points within the national jurisdiction will refuse to cover a slave. Beneath its beneficent folds, wherever it is carried, on land or sea, Slavery will disappear, like darkness under the arrows of the ascending sun - like the Spirit of Evil before the Angel of the Lord.
In all national territories Slavery will be impossible. On the high seas, under the national flag, Slavery will be impossible. In the District of Columbia Slavery will instantly cease. Inspired by these principles, Congress can give no sanction to Slavery by the admission of new Slave States. Nowhere under the Constitution, can the Nation, by legislation or otherwise, support Slavery, hunt slaves, or hold property in man.
Such, sir, are my sincere convictions. According to the Constitution, as I understand it, in the light of the Past and of its true principles, there is no other conclusion which is rational or tenable; which does not defy the authoritative rules of interpretation; which does not falsify indisputable facts of history; which does not affront the public opinion in which it had its birth; and which does not dishonor the memory of the Fathers. And yet these convictions are now placed under formal ban by politicians of the hour. The generous sentiments which filled the early patriots, and which impressed upon the Government they founded, as upon the coin they circulated, the image and superscription of Liberty, have lost their power. The slave-masters, few in number, amounting to about 300,00, according the recent census, have succeeded in dictating the policy of the National Government, and have written Slavery on its front. And now an arrogant and unrelenting ostracism is applied, not only to all who express themselves against Slavery, but to every man who is unwilling to be the menial of Slavery. A novel test for office is introduced, which would have excluded all the Fathers of the Republic - even Washington, Jefferson, and Franklin! Yes, sir. Startling it may be, but indisputable. Could these revered demigods of history once again descend upon earth, and mingle in our affairs, not one of them could receive a nomination from the National Convention of either of the two old political parties! Out of the convictions of their hearts and the utterances of their lips against Slavery they would be condemned.
This single fact reveals the extent to which the National Government has departed from its true course and its great examples. For myself, I know no better aim under the Constitution, than to bring the Government back to the precise position on this question which it occupied on the auspicious morning of its organization under Washington;
   "Cursus iterare relictos"
that the sentiments of the Fathers may again prevail with our rulers, and that the National Flag may nowhere shelter Slavery.
To such as count this aspiration unreasonable, let me commend a renowned and life-giving precedent of English history. As early as the days of Queen Elizabeth, a courtier had boasted that the air of England was too pure for a slave to breathe, and the common law was said to forbid Slavery. And yet in the face of this vaunt, kindred to that of our Fathers, and so truly honorable, slaves were introduced from the West Indies. The custom of slavery gradually prevailed. Its positive legality was affirmed, in professional opinions, by two eminent lawyers, Talbot and Yorke, each afterwards Lord Chancellor. It was also affirmed on the bench by the latter as Lord Hardwicke. England was already a Slave State. The following advertisement, copied from a London newspaper, the Public Advertiser, of Nov. 22d, 1769, shows that the journals there were disfigured as some of ours, even in the District of Columbia:
   "To be sold, a black girl, the property of J.B., eleven years of age, who is extremely handy, works at her needle tolerably, and speaks English perfectly well; is of an excellent temper and willing disposition. Enquire of her Owner at the Angel Inn, behind St. Clement's Church, in the Strand."
At last, only three years after this advertisement, in 1772, the single question of the legality of Slavery was presented to Lord Mansfield, on a writ of Habeas Corpus. A poor negro named Somersett, brought to England as a slave, became ill, and with an inhumanity disgraceful even to Slavery, was turned adrift upon the world. Through the charity of an estimable man, the eminent Abolitionist, Granville Sharpe, he was restored to health, when his unfeeling and avaricious master again claimed him as a bondman. The claim was repelled. After an elaborate and protracted discussion in Westminster Hall, marked by rare learning and ability, Lord Mansfield, with discreditable reluctance, sullying his great judicial name, but in trembling obedience to the genius of the British Constitution, pronounced a decree which made the early boast a practical verity, and rendered Slavery forever impossible in England. More than fifteen thousand persons, at that time held as slaves in English air - four times as many as are now found in this District - stepped forth in the happiness and dignity of freemen.
With this guiding example let us not despair. The time will yet come when the boast of our Fathers will be made a practical verity also, and Court or Congress, in the spirit of this British judgment, will proudly declare that nowhere under the Constitution can man hold property in man. For the Republic such a decree will be the way of peace and safety. As Slavery is banished from the national jurisdiction, it will cease to vex our national politics. It may linger in the States as a local institution; but it will no longer engender national animosities, when it no longer demands national support.
II. From this general review of the relations of the National Government to Slavery, I pass to the consideration of the true nature of the provision for the surrender of fugitives from labor, embracing an examination of this provision in the Constitution, and especially of the recent act of Congress in pursuance thereof. And here, as I begin this discussion, let me bespeak anew your candor. Not in prejudice, but in the light of history and of reason, let us consider this subject. The way will then be easy and the conclusion certain.
Much error arises from the exaggerated importance now attached to this provision, and from the assumptions with regard to its origin and primitive character. It is often asserted that it was suggested by some special difficulty, which had become practically and extensively felt, anterior to the Constitution. But this is one of the myths or fables with which the supporters of Slavery have surrounded their false god. In the Articles of Confederation, while provision is made for the surrender of fugitive criminals, nothing is said of fugitive slaves or criminals; and there is no evidence in any quarter, until after the National Convention, of any hardship or solicitude on this account. No previous voice was heard to express desire for any provision on the subject. The story to the contrary is a modern fiction.
I put aside as equally fabulous the common saying that this provision was one of the original compromises of the Constitution, and an essential condition of Union. Though sanctioned by eminent judicial opinions, it will be found that this statement has been hastily made, without any support in the records of the Convention, the only authentic evidence of the compromises; nor will it be easy to find any authority for it in any contemporary document, speech, published letter or pamphlet of any kind. It is true that there were compromises at the formation of the Constitution, which were the subject of anxious debate; but this was not of them.
There was a compromise between the small and large States, by which equality was secured to all the States in the Senate. There was another compromise finally carried, under threats from the South, on the motion of a New England member, by which the Slave States were allowed Representatives according to the whole number of free persons, and "three-fifths of all other persons," thus securing political power on account of their slaves, in consideration that direct taxes should be apportioned in the same way. Direct taxes have been imposed at only four brief intervals. The political power has been constant, and, at this moment, sends twenty-one members to the other House.
There was a third compromise, which cannot be mentioned without shame. It was that hateful bargain by which Congress was strained until 1808 from the prohibition of the foreign slave trade, thus securing, down to that period, tolerance for crime. This was pertinaciously pressed by the South, even to the extent of an absolute restraint on Congress. John Rutledge said: "If the Convention thinks North Carolina, South Carolina, and Georgia, will ever agree to this plan [the Federal Constitution] unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest." Charles Pinckney said: "South Carolina can never receive the plan [of the Constitution] if it prohibits the slave trade." Charles Cotesworth "thought himself bound to declare candidly that he did not think South Carolina would stop her importation of slaves in any short time." The effrontery of the slave-holders was matched by the sordidness of the Eastern members, who yielded again. Luther Martin, the eminent member of the Convention, in his contemporary address to the Legislature of Maryland, has described the compromise. "I found," he says, "that the Eastern members, notwithstanding their aversion to slavery, were very willing to indulge the Southern States, at least with a temporary liberty to prosecute the slave trade, provided the Southern States would in their turn gratify them, by laying no restriction on navigation acts." The bargain was struck, and at this price the Southern States gained the detestable indulgence. At a subsequent day, Congress branded the slave trade as piracy, and thus, by solemn legislative act, adjudged this compromise to be felonious and wicked.
Such are the three chief original compromises of the Constitution and essential conditions of Union. The case of fugitives from labor is not of these. During the Convention, it was not in any way associated with these. Nor is there any evidence, from the records of this body, that the provision on this subject was regarded with any peculiar interest. As its absence from the Articles of Confederation had not bee the occasion of solicitude or desire, anterior to the National Convention, so it did not enter into any of the original plans of the Constitution. It was introduced at a late period of the Convention, and with very little and most casual discussion adopted. A few facts will show how unfounded are the recent assumptions.
The National Convention was convoked to meet at Philadelphia on the second Monday in May, 1787. Several members appeared at this time; but a majority of the States not being represented, those present adjourned from day to day until the 25th, when the Convention was organized by the choice of George Washington, as President. On the 28th, a few brief rules and orders were adopted. On the next day they commenced their great work.
On this day Edmund Randolph, of slaveholding Virginia, laid before the Convention a series of sixteen resolutions, containing his plan for the establishment of a new National Government. Here was no allusion to fugitive slaves.
On the same days, Charles Pinckney, of slaveholding South Carolina, laid before the Convention what is called "A draft of a Federal Government, to be agreed upon between the free and independent States of America," an elaborate paper, marked by considerable minuteness of detail. Here are provisions, borrowed from the Articles of Confederation, securing to citizens of each State equal privileges in the several States; giving faith to the public records of the States; and ordaining the surrender of fugitives from justice. But this draft, though from the flaming guardian of the slave-interest, contained no allusion to fugitive slaves.
In the course of the Convention other plans were brought forward; on the 15th of June a series of eleven propositions by Mr. Patterson, of New Jersey, "so as to render the Federal Constitution adequate to the exigencies of Government, and the preservation of the Union;" on the 18th of June, eleven propositions by Mr. Hamilton, of New York, "containing his ideas of a suitable plan of Government for the United States;" and on the 19th June, Mr. Randolph's resolutions, originally offered on the 29th May, "as altered, amended, and agreed to in Committee of the Whole House." On the 26th, twenty-three resolutions, already adopted on different days in the Convention, were referred to a "Committee of Detail," to be reduced to the form of a Constitution. On the 6th August this committee reported the finished draft of a Constitution. And yet in all these resolutions, plans, and drafts, seven in number, proceeding from eminent members and from able committees, no allusion was made to fugitive slaves. For three months the Convention was in session, and not a word uttered on this subject.
At last, on the 28th August, as the Convention was drawing to a close, on the consideration of the article providing for the privileges of citizens in different States, we meet the first reference to this matter, in words worthy of note: "Gen. [Charles Cotesworth] Pinckney was not satisfied with it. He SEEMED to wish some provision should be included in favor of property in slaves." But he made no proposition. Unwilling to shock the Convention, and uncertain in his own mind, he only seemed to wish such a provision. In this vague expression of a vague desire this idea first appeared. In this modest, hesitating phrase is the germ of the audacious, unhesitating Slave Act. here is the little vapor, which has since swollen, as in the Arabian tale, to the power and dimensions of a giant. The next article under discussion provided for the surrender of fugitives from justice. Mr. Butler and Mr. Charles Pinckney, both from South Carolina, now moved openly to require "fugitive slaves and servants to be delivered up like criminals." Here was no disguise. With Hamlet it was now said in spirit -
   "Seems, madam, nay it is; I know not seems."
But the very boldness of the effort drew attention and opposition. Mr. Wilson, of Pennsylvania, at once objected: "This would oblige the Executive of the State to do it at the public expense." Mr. Sherman, of Connecticut, "saw no more propriety in the public seizing and surrendering a slave or servant, than a horse." Under the pressure of these objections, the offensive proposition was quietly withdrawn. The article for the surrender of criminals was then adopted. On the next day, August 29th, profiting by the suggestions already made, Mr. Butler moved a proposition - substantially like that now found in the Constitution - not directly for the surrender of "fugitive slaves," as originally proposed, but of "fugitives from service or labor," which, without debate or opposition of any kind, was unanimously adopted.
The provision, which showed itself thus tardily, and was so slightly noticed in the National Convention, was neglected in much of the contemporaneous discussions before the people. In the Conventions of South Carolina, North Carolina, and Virginia, it was commended as securing important rights, though on this point there was a difference of opinion. In the Virginia Convention, an eminent character, Mr. George Mason, with others, expressly declared that there was "no security of property coming within this section." In the other Convention it was disregarded. Massachusetts, while exhibiting peculiar sensitiveness at any responsibility for Slavery, seemed to view it with unconcern Federalist, (No. 42,) in its classification of the powers of Congress, describes and groups a large number as those "which provide for the harmony and proper intercourse among the States," and therein speaks of the power over public records, standing next in the Constitution to the provision on fugitives from labor; but it fails to recognize the latter among the means of promoting that "harmony and proper intercourse;" nor does it anywhere allude to the provision.
The indifference which had thus far attended this subject, still continued. The earliest act of Congress, passed in 1793, drew little attention. It was not originally suggested by any difficulty or anxiety, touching fugitives from labor; nor is there any record of the times, in debate or otherwise, showing that any special importance was attached to its provisions in this regard. The attention of Congress had been directed to fugitives from justice, and, with little deliberation, it undertook, in the same bill, to provide for both classes of cases. In this accidental manner was legislation on this subject first attempted.
There is no evidence that fugitives were often seized under this act. From a competent inquirer we learn that twenty-six years elapsed before a single slave was surrendered under it in any Free State. It is certain that, in a case at Boston, towards the close of the last century, illustrated by Josiah Quincy as counsel, the crowd about the magistrate, at the examination, quietly and spontaneously opened a way for the fugitive, and thus the Act failed to be executed. It is also certain that in Vermont, at the beginning of the century, a Judge of the Supreme Court of this State, on application for the surrender of an alleged slave, accompanied by documentary evidence, refused to comply, unless the master could show a Bill of Sale from the Almighty. But even these cases passed without public comment.
In 1801, the subject was introduced in the House of Representatives, by an effort for another Act, which, on consideration, was rejected. At a later day, in 1817-'18, though still disregarded by the country, it seemed to excite a short-lived interest in Congress. A bill to provide more effectually "for reclaiming servants and slaves, escaping from one State into another," was introduced into the House of Representatives by Mr. Pindall, of Virginia, who considered for several days in Committee of the Whole, amended and passed by this body. In the Senate, after much attention and warm debate, it was also passed with amendments. But on its return to the House for the adoption of the amendments, it was dropped. This effort, which, in the discussions of this subject, has thus far been unnoticed, is chiefly remarkable as the earliest recorded evidence of the unwarrantable assertion, now so common, that this provision was originally of vital importance to the peace.
At last, in 1850, we have another Act, passed by both House of Congress, and approved by the President, familiarly known as the Fugitive Slave Bill. As I read this statute, I am filled with painful emotions. The masterly subtlety with which is drawn, might challenge admiration, if exerted for a benevolent purpose; but in the age of sensibility and refinement, a machine of torture, however skilful and apt, cannot be regarded without horror. Sir, in the name of the Constitution which it violates; of my country which it dishonors; of Humanity which it degrades; of Christianity which it offends; I arraign this enactment, and now hold it up to the judgment of the Senate and the world. Again, I shrink from no responsibility. I may seem to stand alone; but all the patriots and martyrs of history, all the Fathers of the Republic, are with me. Sir, there is no attribute of God which does not unite against this Act.
But I am to regard it now chiefly as an infringement of the Constitution. And here its outrages, flagrant as manifold, assume the deepest dye and broadest character only when we consider that by its language it is not restrained to any special race or class, to the African or to the person with African blood; but that any inhabitant of the United States, of whatever complexion or condition, may be its victim. Without discrimination of color even, and in violation of every presumption of freedom, the Act surrenders all, who may be claimed as "owing service or labor" to the same tyrannical proceedings. If there be any, whose sympathies are not moved for the slave, who do not cherish the rights of the humble African, struggling for divine Freedom, as warmly as the rights of the white man, let him consider well that the rights of all are equally assailed. "Nephew," said Algernon Sidney in prison, on the night before his execution, "I value not my own life a chip; but what concerns me is, that the law which takes away my life may hang every one of you, whenever it is thought convenient."
Though thus comprehensive in its provisions and applicable to all, there is no safeguard of Human Freedom which the monster Act does not set at naught.
It commits this great question - than which none is more sacred in the law - not to a solemn trial; but to summary proceedings.
It commits this question - not to one of the high tribunals of the land - but to the unaided judgment of a single petty magistrate.
It commits this question to a magistrate, appointed, not by the President with the consent of the Senate, but by the Court; holding his office, not during good behavior, but merely during the will of the Court; and receiving, not a regular salary, but fees according to each case.
It authorizes judgment on ex parte evidence, by affidavits, without the sanction of cross-examination.
It denies the writ of Habeas Corpus, ever known as the Palladium of the citizen. Contrary to the declared purposes of the framers of the Constitution, it sends the fugitive back "at the public expense."
Adding meanness to the violation of the Constitution, it bribes the Commissioner by a double stipend to pronounce against Freedom. If he dooms a man to Slavery, the reward is ten dollars; but, saving him to Freedom, his dole is five dollars.
The Constitution expressly secures the "free exercise of religion;" but this Act visits with unrelenting penalties the faithful men and women, who may render to the fugitive that countenance, succor, and shelter, which in their conscience "religion" seems to require.
As it is for the public weal that there should be an end of suits, so by the consent of civilized nations, these must be instituted within fixed limitations of time; but this Act, exalting Slavery above even this practical principle of universal justice, ordains proceedings against Freedom without any reference to the lapse of time.
Glancing only at these points, and not stopping for argument, vindication, or illustration, I come at once upon the two chief radical objections to this Act, identical in principle with those brought by our fathers against the British Stamp Act; first, that it is an usurpation by Congress of powers not granted by the Constitution, and an infraction of rights secured to the States; and, secondly, that it takes away Trial by Jury in a question of Personal Liberty and a suit at common law. Either of these objections, if sustained, strikes at the very root of the Act. That it is obnoxious to both, seems beyond doubt.
But here, at this stage, I encounter the difficulty, that these objections have been already foreclosed by the legislation of Congress and by the decisions of the Supreme Court; that as early as 1793 Congress assumed power over this subject by an Act, which failed to secure Trial by Jury, and that the validity of this Act under the Constitution has been affirmed by the Supreme Court. On examination this difficulty will disappear.
The Act of 1793 proceeded from a Congress that had already recognized the United States Bank, chartered by a previous Congress, which, though sanctioned by the Supreme Court, has since in high quarters pronounced unconstitutional. If it erred as to the Bank, it may have erred also as to fugitives from labor. But the very Act contains a capital error on this very subject, so declared by the Supreme Court, in pretending to vest a portion of the judicial power of the Nation in State officers. This error takes from the Act all authority as an interpretation of the Constitution. I dismiss it.
The decisions of the Supreme Court are entitled to great consideration, and will not be mentioned by me except with respect. Among the memories of my youth are happy days in which I sat at the feet of this tribunal, while Marshall presided, with Story by his side. The pressure now proceeds from the case of Prigg v. Pennsylvania, (16 Peters, 539,) wherein the power of Congress over this matter is asserted. Without going into any minute criticism of this judgment, or considering the extent to which it is extra-judicial, and therefore of no binding force, all which has been already done at the bar in one State, and by an able court in another; but conceding to it a certain degree of weight as a rule to the judiciary on this particular point, still it does not touch the grave question arising from the denial of Trial by Jury. This judgment was pronounced, by Mr. Justice Story. From the interesting biography of this great jurist, recently published by his son, we derive the distinct statement that the necessity of Trial by Jury was not before the Court; so that, in the estimation of the judge himself, it was still an open question. Here are the words:
   "One prevailing opinion, which has created great prejudice against this judgment, is, that it denies the right of a person claimed as a fugitive from service or labor to a trial by jury. This mistake arises from supposing the case to involve the general question as to the constitutionality of the Act of 1793. But in fact no such question was in the case; and the argument that the Act of 1793 was unconstitutional, because it did not provide for a trial by jury according to the requisitions of the sixth article in the amendments to the Constitution, having been suggested to my father on his return from Washington, he replied that this question was not argued by counsel nor considered by the Court, and the he should still consider it an open one."
But whatever may be the influence of this judgment as a rule to the judiciary, it cannot arrest our duty as legislators. And here I adopt with entire assent the language of President Jackson, in his memorable Veto, in 1832, of the Bank of the United States. To his course was opposed the authority of the Supreme Court, and this is his reply:
   "If the opinion of the Supreme Court covers the whole ground of this Act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution, which may be presented to them for passage or approval, as it is of the Supreme Judges when it may be brought before them for judicial decision. The authority of the Supreme Court must not therefore, be permitted to control the Congress or the Executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."
With these authoritative words of Andrew Jackson I dismiss this topic. The early legislation of Congress, and the decisions of the Supreme Court cannot stand in our way. I advance to the argument.
(1) Now, first, of the power of Congress over this subject. The Constitution contains powers granted to Congress, compacts between the States, and prohibitions addressed to the Nation and to the States. A compact or prohibition may be accompanied by a power; but not necessarily, for it is essentially distinct in its nature. And here the single question arises, Whether the Constitution, by grant, general or special, confers upon Congress any power to legislate on the subject of fugitives from labor.
The whole legislative power of Congress is derived from two sources; first, from the general grant of power, attached to the long catalogue of powers, "to make all laws which shall be necessary and proper for the carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof;" and secondly, from special grants in other parts of the Constitution. As the provision in question does not appear in the catalogue of powers, and does not purport to vest any power in the Government of the United States, or in any department or officer thereof, no power to legislate on this subject can be derived from the general grant. Nor can any such power be derived from any special grant in any other part of the Constitution; for none such exists. The conclusion must be, that no power is delegated to Congress over the surrender of fugitives from labor.
In all contemporary discussions and comments, the Constitution was constantly justified and recommended, on the ground that the powers not given to the Government were withheld from it. If under its original provisions any doubt could have existed on this head, it was removed, so far as language could remove it, by the Tenth Amendment, which, as we have already seen, expressly declares, 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." Here on the simple text of the Constitution I might leave this question. But its importance justifies a more extended examination in a two-fold light; first, in the history of the Convention, revealing the unmistakeable intention of its members; and secondly, in the true principles of our Political System, by which the powers of the Nation and of the States are respectively guarded.
Look first at the history of the Convention. The articles of the old Confederation, adopted by the Continental Congress, 15th of November, 1777, though containing no reference to fugitives from labor, had provisions substantially like those in our present Constitution, touching the privileges of citizens in the several States, the surrender of fugitives from justice, and the credit due to the public records of States. But, since the Confederation had no powers not "expressly delegated," and as no power was delegated to legislate on these matters, they were nothing more than articles of treaty or compact. Afterwards, at the National Convention, these three provisions found a place in the first reported draft of a Constitution, and they were arranged in the very order which they occupied in the Articles of Confederation. The clause relating to public records stood last. Mark this fact.
When this clause, being in the form merely a compact, came up for consideration in the Convention, various efforts were made to graft upon it a power. This was on the very day of the adoption of the clause relating to fugitives from labor. Charles Pinckney moved to commit with a proposition for a power to establish uniform laws on the subject of bankruptcy and foreign bills of exchange. Mr. Madison was in favor of a power for the execution of judgments in other States. Gouverneur Morris on the same day moved to commit a further proposition for a power "to determine the proof and effect of such acts, records, and proceedings." Admidst all these efforts to associate a power with this compact, it is clear that nobody supposed that such already existed. This narrative places the views of the Constitution beyond question.
The compact regarding public records, together with these various propositions, was referred to a committee, on which were Mr. Randolph and Mr. Wilson, with John Rutledge, of South Carolina, as chairman. After several days, they reported the compact, with a power in Congress to prescribe by general laws the manner in which such records shall be proved. A discussion ensued, in which Mr. Randolph complained that the "definition of the powers of the Government was so loose as to give it opportunities of usurping all the State powers. He was for not going further than the report, which enables the Legislature to provide for the effect of judgments." The clause of compact with the power attached was then adopted, and is now a part of the Constitution. In presence of this solicitude for the preservation of "State powers," even while considering a proposition for an express power, and also of the distinct statement of Mr. Randolph, that he "was not for going further than the report," it is evident that the idea could not then have occurred, that a power was coupled with the naked clause of compact on fugitives from labor.
At a later day, the various clauses and articles severally adopted from time to time in Convention, were referred to a committee of revision and arrangement, that they might be reduced to form as a connected whole. Here another change was made. The clause relating to public records, with the power attached, was taken from its original place at the bottom of the clauses of compact, and promoted to stand first in the article, as a distinct section, while the other clauses of compact concerning citizens, fugitives from justice, and fugitives from labor, each and all without any power attached, by a natural association compose but a single section, thus:
"Article IV.
   "Section 1. Full Faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
   "Section 2. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. A person charged in any other State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. No person held to service or labor in one State, under the laws thereof escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."
   "Section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress. The Congress shall have power to dispose of and make all needful rules and regulations respecting territory or other property belonging to the United States; and nothing in this Constitution shall be so prejudice any claims of the United States, or of any particular State."
   "Section 4. The United States shall guarantee to every State in this Union a republican form of Government, and shall protect each of them against invasion, an on application of the Legislature, or of the Executive, (when the Legislature cannot be convened,) against domestic violence."
Here is the whole article. It will be observed that the third section immediately following the triad section of compacts, contains two specific powers, one with regard to new States, and the other with regard to the Public Treasury. These are naturally grouped together, while the fourth section of this same article, which is distinct in its character, is placed by itself. In the absence of all specific information, reason alone can determine why this arrangement was made. But the conclusion is obvious, that, in the view of the Committee and of the Convention, each of these sections differs from the others. The first contains a compact with a grant of power. The second contains provisions, all of which are simple conpacts, and two of which were confessedly simple compacts in the old Articles of Confederation, from which, unchanged in letter or spirit, they were borrowed. The third is a two-fold grant of power to Congress, without any compact. The fourth is neither power nor compact merely, nor both united, but a solemn injunction upon the National Government to perform an important duty.
The framers of the Constitution were wise and careful men, who had a reason for what they did, and who understood the language which they employed. They did not, after discussion, incorporate into their work any superfluous provision; nor did they without design adopt the peculiar arrangement in which it appears. In adding to the record compact the express grant of power, they testified not only their desire for such power in Congress; but their conviction, that, without an express grant, it would not exist. But if an express grant was necessary in this case, it was equally necessary in all the other cases. Expressum facit cessare tacitum['the expression of one thing excludes the implication of something else']. Especially, in view of its odious character, was it necessary in the case of fugitives from labor. In abstaining from any such grant, and then, in grouping the bare compact with other similar compacts, separate from every grant of power, they have most significantly testified their purpose. They not only decline all addition of any such power to the compact, but, to render misapprehension impossible, to make assurance doubly sure, to exclude any contrary conclusion, they punctiliously arrange the clauses, on the principle of noscitur a sociis['a word is known by the company it keeps'], so as to distinguish all the grants of power, but especially to make the new grant of power, in the case of public records, stand forth in the front by itself, severed from the mere naked compacts with which it was originally associated.
Thus the records of the Convention show that the founders understood the necessity of powers in certain cases, and, on consideration, most jealously granted them. A closing example will strengthen the argument. Congress is expressly empowered "to establish an uniform rule of Naturalization, and uniform laws on the subject of Bankruptcies, throughout the United States." Without this provision these two subjects would have been within the control of the States, the Nation having no power to establish an uniform rules thereupon. Now, instead of the existing compact on fugitives fro labor, it would have been easy, had any such desire prevailed to add this case to the clause on Naturalization and Bankruptcies, and to empower Congress to establish an uniform rule for the surrender of fugitives from labor throughout the United States. Then, of course, whenever Congress undertook to exercise the power, all State control of the subject would have been superseded. The National Government would have been constituted, like Nimrod, the might Hunter, with power to gather the huntsmen, to halloo the pack, and to direct the chase of men, ranging at will, without regard to boundaries or jurisdictions, throughout all the States. But no person in the Convention, not one of the reckless partisans of slavery, was so audacious as to make this proposition. Had it been distinctly made, it would have been distinctly denied.
The fact that the provision on this subject was adopted unanimously, while showing the little importance attached to it in the shape it finally assumed, testifies also that it could not have been regarded as a source of National power over Slavery. It will be remembered, that, among the members of the Convention, were Gouverneur Morris, who had said, that he "never would concur in upholding domestic slavery;" Elbridge Gerry, who thought "we ought to be careful not to give any sanction to it;" Roger Sherman, who was opposed to any clause "acknowledging me to be property;" and Mr. Madison, who "thought it wrong to admit in the Constitution the idea that there could be property in man." In the face of these unequivocal statements, it is absurd to suppose that they consented unanimously to any provision by which the National Government, the work of their hands, dedicated to Freedom, could be made the most offensive instrument of Slavery.
Thus much for the evidence from the history of the Convention. But the true principles of our Political System are in harmony with this conclusion of history; and here let me say a word of State Rights.
It was the purpose of our fathers to create a National Government, and to endow it with adequate powers. They had known the perils of imbecility, discord, and confusion, during the uncertain days of the Confederation, and desired a Government which should be a true bond of Union and an efficient organ of the national interests at home an abroad. But while fashioning this agency, they fully recognised the Government of the States. To the nation were delegated high powers, essential to the national interests, but specific in character and limited in number. To the States and to the people were reserved the powers, general in character and unlimited in number, not delegated to the Nation or prohibited to the States.
The integrity of our Political System depends upon harmony in the operations of the Nation and of the States. While the Nation and of the States. While the Nation within its wide orbit is supreme, the States move with equal supremacy of each in its proper place excludes the other. The Nation cannot exercise rights reserved to the States; nor can the States interfere with the powers of the Nation. Any such action on either side is a usurpation. These principles were distinctly declared by Mr. Jefferson, in 1798, in words often adopted since; and which must find acceptance from all parties:
   "That the several States composing the United States of America are not united upon the principles of unlimited submission to the General Government; but that by compact, under the style and title of the Constitution of the United States and of the amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government, and that wheresoever the General Government assumes undelegated powers, its acts are unauthorized, void, and of no force."
But I have already amply shown to-day that Slavery is in no respect national - that it is not within the sphere of national activity - that i has no "positive" support in the Constitution, and that any interpretation thereof consistent with this principle would be abhorrent to the sentiments of its founders. Slavery is a local institution, peculiar to the States and under the guardianship of State Rights. it is impossible, without violence, at once to the spirit and to the letter of the Constitution, to attribute to Congress any power to legislate, either for its abolition in the States or its support anywhere. Non-Intervention is the rule prescribed to the Nation. Regarding the question only in its more general aspects, and putting aside, for the moment, the perfect evidence from the records of the Convention, it is palpable that there is no national fountain out of which the existing Slave Act can be derived.
But this Act is not only an unwarrantable assumption of power by the Nation; it is also an infraction of rights reserved to the States. Everywhere within their borders the States are the peculiar guardians of personal liberty. By Jury and Habeas Corpus to save the citizen harmless against all assault is among their duties and rights. To his State the citizen when oppressed may appeal, nor should he find that appeal denied. But this Act despoils him of his rights, and despoils his State of all power to protect him. It subjects him to the wretched chances of false oaths, forged papers, and facile commissioners, and takes from him every safeguard. Now, if the slaveholder has a right to be secure at home in the enjoyment of Slavery, so also has the freeman of the North - and every person there is presumed to be a freeman - an equal right to be secure at home in the enjoyment of Freedom. The same principle of State Rights by which Slavery is protected in the Slave States throws an impenetrable shield over Freedom in the Free States. And here, let me say, is the only security for the Slavery in the Slave States as for Freedom in the Free States. In the present fatal overthrow of State Rights you teach a lesson which my return to plague the teacher. Compelling the National Government to stretched its Briarean arms into Free States, for the sake of Slavery, you show openly how it may stretch these same hundred giant arms into the Slave States for the sake of Freedom. This lesson was not taught by our fathers.
And here I end this branch of the question. The true principles of our Political System, the history of the National Convention, the natural interpretation of the Convention, all teach that this Act is a usurpation by Congress of powers that do not belong to it, and an infraction of rights secured to the States. It is a sword, whose handle is at the National Capital, and whose point is everywhere in the States. A weapon so terrible to Personal Liberty the Nation has no power to grasp.
(2.) And now of the denial of Trial by Jury. Admitting, for the moment, that Congress is intrusted with power over this subject, which truth disowns, still the Act is again radically unconstitutional from its denial of Trial by Jury in a question of Personal Liberty and a suit at common law. Since on the one side there is a claim of property, and on the other of liberty, both property and liberty are involved in the issue. TO this claim on either side is attached Trial by Jury.
To me, sir, regarding this matter in the light of the common law and in the blaze of free institutions, it has always seemed impossible to arrive at any other conclusion. If the language of the Constitution were open to doubt, which it is not, still at the presumptions of law, all the leanings for Freedom, all the suggestions of justice, plead angel-tongued for this right. Nobody doubts that Congress, if it legislates on this matter may allow a Trial by Jury. But if it may, so overwhelming is the claim of justice, it must. Beyond this, however, the question is determined by the precise letter of the Constitution.
Several expressions in the provisions for the surrender of fugitives from labor, show the essential character of the proceedings. In the first place, the person must be, not merely charged, as in the case of fugitives from justice, but actually held to labor in the State from which he escaped. In the second place, he must be "delivered up on claim of the party to whom such labor is due." These two facts, that he was held to labor, and that his labor was due to his claimant, are directly placed in issue, and must be proved. Two necessary incidents of the delivery may also be observed. First, it must be made in the State where the fugitive is found; and, secondly, it restores to the claimant his complete control over the person of the fugitive. From these circumstances it is evident that the proceedings cannot be regarded, in any just sense, as preliminary, or ancillary to some future formal trial, but as complete in themselves, final and conclusive.
And these proceedings determine on the one side of the question of property, and on the other the sacred question of Personal Liberty in its most transcendent form; not merely Liberty for a day or a year, but for life, and the Liberty of generations that shall come after, so long as Slavery endures. To these questions, the Constitution, by two specific provisions, attached the Trial by Jury. One of these is the familiar clause, already adduced: "No person shall be deprived of life, liberty, or property, without due process of law;" that is, without due proceedings at law, with Trial by Jury. Not stopping to dwell on this, I press at once to the other provision, which is still more express: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of Trial by Jury shall be preserved." This clause, which was not in the original Constitution, was suggested by the very spirit of Freedom. At the close of the National Convention, Elbridge Gerry refused to sign the Constitution, because among other things, it established "a tribunal without juries, a Star Chamber as to civil cases." Many united in his opposition, and on the recommendation of the First Congress this additional safeguard was adopted as an amendment.
Now, regarding the question as one of property, or of Personal Liberty, in either alternative the Trial by Jury is secured. For this position authority is ample. In the debate on the Fugitive Slave Bill of 1817-'18, a Senator from South Carolina, Mr. Smith, anxious for the asserted right of property, objected, on this very floor, to a reference of the question, under the writ of Habeas Corpus, to a judge without a jury. Speaking solely for property, these were his words:
   "This would give the Judge the sole power of deciding the right of property the master claims in his slaves, instead of trying that right by a jury, as prescribed by the Constitution. He would be judge of matters of law and matters of fact; clothed with all the powers of a court. Such a principle is unknown in your system of jurisprudence. Your Constitution has forbid it. It preserves the right of Trial by Jury in all cases where the value in controversy exceeds twenty dollars." - (Debates in National Intelligencer, June 15, 1818.)
But this provision has been repeatedly discussed by the Supreme Court, so that its meaning is not open to doubt. Three conditions are necessary. First, the proceedings must be "a suit;" secondly, "at common law;" and thirdly, "where the value in controversy exceeds twenty dollars." In every such case "the right of Trial by Jury shall be preserved." The decisions of the Supreme Court expressly touch each of these points.
First. In the case of Cohens v. Virginia, (6 Wheaton, 407,) the Court say: "What is a suit? We understand it to be the prosecution of some claim, demand, or request." Of course, then, the "claim" for a fugitive must be "a suit."
Secondly. In the case of Parsons v. Bedford (3 Peters, 456,) while considering this very clause, the Court say: "By common law is meant not merely suits which the common law recognised among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined. In a just sense, the Amendment may well be 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 what are called legal rights, it must, of course, be "a suit at common law."
Thirdly. In the case of Lee v. Lee, (8 Peters, 44,) on a question whether "the value in controversy" was "one thousand dollars and upwards," it was objected that the appellants who were petitioners for Freedom, were not of the value of one thousand dollars. But the Court said: "The matter in dispute is the Freedom of the petitioners. This is not susceptible of pecuniary valuation. No doubt is entertained of the jurisdiction of the Court." Of course, then, since liberty is above price, the claim to any fugitive always and necessarily presumes that "the value in controversy exceeds twenty dollars."
By these successive steps, sustained by decisions of the highest tribunal, it appears, as in a diagram, that the right of Trial by Jury is secured to the fugitive from labor.
This conclusion needs no further authority; but it may receive curious illustration from the ancient records of the common law, so familiar and dear to the framers of the Constitution. It is said by Mr. Burke, in his magnificent speech on Conciliation with America, that "nearly as many of Blackstone's Commentaries were sold in America as in England," carrying thither the knowledge of those vital principles of Freedom, which were the boast of the British Constitution. Imbued by these, the earliest Continental Congress, in 1774, declared, "That the respective Colonies are entitled to the common law of England, and especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law." Thus, amidst the troubles which heralded the Revolution, the common law was claimed by our fathers as a birthright.
Now although the common law may not be approached as a source of jurisdiction under the National Constitution - and on this point I do not dwell - it is clear that it may be employed to determine the meaning of technical terms in the Constitution borrowed from this law. This, indeed, is expressly sanctioned by Mr. Madison, in his celebrated report of 1799, while restraining the extent to which the common law may be employed. Thus by this law we learn the nature of Trial by Jury, which, though secured, is not described by the Constitution; also of Bills of Attainder, the Writ of Habeas Corpus, and Impeachment, all technical terms of the Constitution borrowed from the common law. By this law, and its associate Chancery, we learn what are cases in law equity to which the judicial power of the United States is extended. These instances I adduce merely by way of example. Of course also in the same way we learn what in reality are suits at common law.
Now, on principle and authority, a claim for the delivery of a fugitive slave is a suit at common law, and is embraced naturally and necessarily in this class of judicial proceedings. This proposition can be placed beyond question. And here, especially, let me ask the attention of all learned in the law. On this point, as on every other in this argument, I challenge inquiry and answer.
History painfully records, that during the early days of the common law, and down even to a late period, a system of slavery existed in England, known under the name of villainage. The slave was generally called a villain, though, in the original Latin forms of judicial proceedings, nativus, implying slavery by birth. The incidents of this condition have been minutely described, and also the mutual remedies of master and slave, all of which were regulated by the common law. Slaves sometimes then, as now, escaped from their masters. The claim for them after such escape was prosecuted by a "suit at common law," to which, as to every suit at common law, the Trial by Jury was necessarily attached. Blackstone in his Commentaries, (Vol. II, p. 93,) in words which mus have been known to all the lawyers of the Convention, said of villains: "They could not leave their lord without his permission, but if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other cattle." This very word "action" of itself implies "a suit at common law," with Trial by Jury.
From other sources we learn precisely what the action was. That great expounder of the ancient law, Mr. Hargrave, says, "The Year Books and Books of Entries are full of the forms used in pleading a title to villains." Though no longer of practical value in England, they remain as monuments of jurisprudence, and as mementos of a barbarous institution. He thus describes the remedy of the master at common law:
   "The lord's remedy for a fugitive villain was, either by seizure or by suing out of a writ of Nativo Habendo, or Neifty, as it is sometimes called. If the lord seized, the villain's most effectual mode of recovering liberty was by the writ of Homine Replegiando, which had the great advantage over the writ of Habeas Corpus. In the Habeas Corpus the return cannot be contested by pleading against the truth of it, and consequently on a Habeas Corpus the question of liberty cannot go to a jury for trial. But in the Homine Replegiando it was otherwise. The plaintiff, on the defendant's pleading villainage, had the same opportunity of contesting it, as when impleaded by the lord in a Nativo Habendo. If the lord sued out a Nativo Habendo, and the villainage was denied, in which case the sheriff could not seize the villain, the lord was then to enter his plaint in the county court, and as the sheriff was not allowed to try the question of villainage in his court, the lord could not have any benefit from the writ, without removing the cause by the writ of Pone into the King's Bench or Common Pleas." - (20 Howell's State Trials, 38 note.)
The authority of Mr. Hargrave is sufficient. But I desire to place this matter beyond all cavil. From the Digest of Lord Chief Baron Comyns, which, at the adoption of the Constitution, was one of the classics of our jurisprudence, I derive another description of the remedy of the master:
   "If the lord claims an inheritance in his villain, who flies from his lord against his will, and lives in a place out of the manor, to which he is regardant, the lord shall have a Nativo Habendo. And upon such writ, directed to the sheriff, he may seize him who does not deny himself to be a villain. But if the defendant say that he is a Free Man, the sheriff cannot seize him, but the lord must remove the writ by Pone before the Justices in Eire, or in C.B., where he must count upon it." - (Comyns' Digest - Villainage, C. 1.)
An early writer of peculiar authority, Fitzherbert, in his Natura Brevium, on the write of the common law, thus describes these proceedings:
   "The writ de Nativo Habendo lieth for the lord who claimeth inheritance in any villain, when his villain is run from him, and is remaining with any place out of the manor unto which he is regardant, or when he departeth from his lord against the lord's will; and the writ shall be directed to the sheriff. And the sheriff may seize the villain, and deliver him unto his lord, if the villain confess unto the sheriff that he is his villain; but if the villain say to the sheriff that he is frank, then it seemeth that the sheriff ought not to seize him; as it is in a replevin, if the defendant claim property, the sheriff cannot replevy the cattle, but the party ought to sue a writ de Proprietate Probanda; and so if teh vilain say that he is a free man, &c., then the sheriff ought not to seize him, but then the lord ought not to seize him, but then the lord ought to sue a Pone to remove the plea before the justices of the Common Pleas, or before the justices in eyre. But if the villain purchase a writ de Libertate Probanda before the lord hath sued the Pone to remove the plea before the justices, then that writ of Libertate Probanda is a Supersedeas unto the lord, that he proceeded not upon the writ Nativo Habendo till the eyre of the justices, and that the lord ought not to seize the villain the mean time." - (Vol. I, p. 76)
These authorities are not merely applicable to the general question of freedom; but they distinctly contemplate the case of fugitive slaves, and the "suits at common law" for their rendition. Blackstone speaks of villains who "ran away;" Hargrave of "fugitive villains;" Comyns of a villain "who flies from the lord against his will;" and Fitzherbert of the the proceedings of the lord "when his villain is run from him." The forms, writs, counts, pleadings, and judgments, in these suits, are all preserved among the precedents of the common law. The writs are known as original writs which the party on either side, at the proper stage, could sue out of right without showing cause. The write of Libertate Probanda for a fugitive slave was in this form:
   "Libertate Probanda. "The king to the sheriff, &c. A. and B. her sister, have showed unto us, that wheras they are free women, and ready o prove their liberty, F. claiming them to be his niefs unjustly, vexes them; and therefore we command you, that if the aforesaid A. and B. shall make you secure touching the proving of their liberty, then put that plea before our justices at the first assizes, when they shall come into those parts, because proof of this kind belongeth not to you to take; and in the mean time cause the said A. and B. to have peace thereupon, and tell the aforesaid F. that he may be there, if he will, to prosecute his plea thereof against the aforesaid A. and B. And have there this write. Witness &c." - (Fitzherbert, Vol. I, p. 77)
By these various proceedings, all ending in Trial by Jury, Personal Liberty was guarded, even in the early, unrefined and barbarous days of the common law. Any person claimed as a fugitive slave might invoke this Trial as a sacred right. Whether the master proceeded by seizure, as he might, or by legal process, the Trial by Jury is a suit at common law, before one of the high courts of the realm, was equally secured. In the case of seizure, the fugitive, reserving the proceedings, might institute process against his master and appeal to court and jury. In the case of process by the master, the watchful law secured to a fugitive the same protection. By no urgency of force, by no device of process, could any person claimed as a slave be defrauded of this Trial. Such was the common law. If its early boast, that there could be no slaves in England, fails to be true, this at least may be its pride, that according to its indisputable principles, the Liberty of every man was placed under the guard of Trial by Jury.
These things may seem new to us; but they must have been known to the members of the Convention particularly to those from South Carolina, through whose influence the provision on this subject was adopted. Charles Cotesworth Pinckney and Mr. Rutledge had studied law at the Temple, one of the English Inns of Court. It would be a discredit to them, and also to other learned lawyers, members of the Conventions, to suppose that they were not conversant with the principles and precedents directly applicable to this subject, all of which are set down in works of acknowledged weight, and at that time of constant professional study. Only a short time before, in the case of Somersett, they had been most elaborately examined in Westminster Hall. In a forensic effort of unsurpassed learning and elevation, which of itself vindicates for its author his great juridicial name, Mr. Hargrave had fully made them known to such as were little acquainted with the more ancient sources. But even if we could suppose them unknown to the lawyers of the Convention, they are none the less applicable in determining the true meaning of the Constitution.
The conclusion from this examination is explicit. Clearly and indisputably, in England, the country of the common law, a claim for a fugitive slave was "a suit at common law," recognised "among its old and settled proceedings." To question this, in the face of authentic principles and precedents, would be preposterous. As well might it be questioned, that a write of replevin for a horse, or a writ of right for land, was "a suit at common law." It follows, then, that this technical term of the Constitution, read in the illumination of the common law, naturally and necessarily embraces proceedings for a recovery of fugitive slaves, if any such be instituted or allowed under the Constitution. And thus, by the letter of the Constitution, in harmony with the requirement of the common law, all such persons, when claimed by their masters, are entitled to a Trial by Jury.
Such, sir, is the argument, briefly uttered, against the constitutionality of the Slave Act. Much more I might say on this matter; much more on the two chief grounds of objection which I have occupied. But I am astonished to hasten on.
Opposing this Act as doubly unconstitutional from a want of power in Congress and from a denial of Trial by Jury, I find myself again encouraged by the example of our Revolutionary Fathers, in a case which is one of the landmarks of history. The parallel is important and complete. In 1765, the British Parliament, by a notorious statute, attempted to draw money from the colonies through a stamp tax, while the determination of certain questions of forfeiture under the statute was delegated - not to the courts of common law - but to Court of Admiralty without a jury. The Stamp Act, now execrated by all lovers of liberty, had this extent and no more. Its passage was the signal for a general flame of opposition and indignation throughout the Colonies. It was denounced as contrary to the British Constitution on two principal grounds; first, as a usurpation by Parliament of powers not belonging to it, and an infraction of rights secured to the Colonies; and secondly, as a denial of Trial by Jury in certain cases of property.
The public feeling was variously expressed. At Boston, on the arrival of the stamps, the shops were closed, the bells of the churches tolled, and the flags of the ships hung at half-mast. At Portsmouth, in New Hampshire, the bells were tolled, and notice given to the friends of Liberty to hold themselves in readiness to attend her funeral. At New York a letter was received from Franklin, then in London, written on the day after the passage of the Act, in which he said: "The sun of liberty is set." The obnoxious Act, headed "Folly of England and Ruin of America," was contemptuously hawked through the streets. The merchants of New York, inspired then by Liberty, resolved to import no more goods from England until the repeal of the Act; and their example was followed shortly afterwards by the merchants of Philadelphia and Boston. Bodies of patriots were organized everywhere under the name of "Sons of Liberty." The orators also spoke. James Otis with fiery tongue appealed to Magna Charta.
Of all the States, Virginia - whose shield bears the image of Liberty trampling upon chains - first declared herself by solemn resolutions, which the timid thought "treasonable;" but which soon found a response. New York followed. Massachusetts came next, speaking by the pen of the inflexible Samuel Adams. In an Address from the Legislature to the Governor, the true grounds of opposition to the Stamp Act, coincident with the two radical objections to the Slave Act, are clearly set forth:
   "You are pleased to say that the Stamp Act is an act of Parliament, and as such ought to be observed. This House, sir, has too great reverence for the Supreme Legislature of the nation to question its just authority. It by no means appertains to us to presume to adjust the boundaries of the power of Parliament; but boundaries there undoubtedly are. We hope we may, without offense, put your Excellency in mind of that most grievous sentence of excommunication solemnly denounced by the Church in the name of the sacred Trinity, in the presence of King Henry the Third and the estates of the realm, against all those who should make statutes or observe them, being made contrary to the liberties of Magna Charta. The Charter of this province invests the Great Assembly with the power of making laws for its internal government and taxation; and this Charter has never been forfeited. The Parliament has a right to make all laws within the limits of their own constitution." * * * "The people complain that the Act vests a single judge of Admiralty with the power to try and determine their property in controversies arising from internal concerns, without a jury, contrary to the very expression of Magna Charta, that no freeman shall be amerced, by by the oath of good and lawful men of the vicinage." * * * "We deeply regret that the Parliament has seen fit to pass such an act as the Stamp Act; we flatter our selves that the hardships of it will shortly appear to them in such a light, as shall induce them in their wisdom to repeal it; in the mean time, we must be your Excellency will excuse us from doing anything to assist in the execution of it."
Thus in those days spoke Massachusetts! The parallel still proceeds. The unconstitutional Stamp Act was welcomed in the Colonies by the Tories of that day precisely as the unconstitutional Slave Act has been welcomed by large and imperious numbers among us. Hutchinson, at that time Lieutenant Governor and Judge in Massachusetts, wrote to Ministers in England: "The Stamp Act is received with as much decency as could be expected. It leaves no room for envasion, and will execute itself." Like the judges of our day, in charges to grand juries, he resolutely vindicated the Act, and admonished "the jurors and the people" to obey. Like Governors of our day, Bernard, in his speech to the Legislature of Massachusetts, demanded unreasoning submission. "I shall not," says the British Governor, "enter into any disquisition of the policy of this Act. I have only to say that it is an Act of the Parliament of Great Britain; and I trust that the supremacy of that Parliament over all the members of their wide and diffused empire never was and never will be denied within these walls." Like marshals of our day, the officers of the Customs made "application for a military force to assist them in the execution of their duty." The military were against the people. A British major of artillery at New York exclaimed, in tones not unlike those now sometimes heard: "I will cram the stamps down their throats with the end of my sword." The elaborate answer of Massachusetts - a paper of historic grandeur - drawn by Samuel Adams, was pronounced "the ravings of a parcel of wild enthusiasts."
Thus in those days spoke the partisans of the Stamp Act. But their weakness soon became manifest. In the face of an awakened community, where discussion has free scope, no men, though surrounded by office and wealth, can long sustain injustice. Earth, water, nature, they may subdue; but Truth they cannot subdue. Subtle and mighty, against all efforts and devices, it fills every region of light with its majestic presence. The Stamp Act was discussed and understood. Its violation of constitutional rights were exposed. By resolutions of Legislatures and of town meetings, by speeches and writings, by public assemblies and processions, the country was rallied in peaceful phalanx against the execution of the Act. To this great object, within the bounds of law and the constitution, were bent all the patriot energies of the land.
And here Boston took the lead. Her records at this time are full of proud memorials. In formal instructions to her representatives, adopted unanimously, "having been read several times," in Town Meeting at Faneuil Hall, the following rule of conduct was prescribed:
   "We, therefore, think it our dispensable duty, in Justice to ourselves and Posterity, as it is our undoubted Privilege, in the most open and unreserved, but decent and respectful Terms, to declare our greatest Dissatisfaction with this Law. And we think it incumbent upon you by no Means to join in any public Measures for countenancing and assisting in the execution of the same. But to use your best endeavors in the General Assembly to have the inherent inalienable Rights of the People of this Province asserted, and vindicated, and left upon the public record, that Posterity may never have reason to charge the present Times with the Guilt of tamely giving them away."
Virginia responded to Boston. Many of her justices of the peace surrendered their commissions "rather than aid in the enforcement of the law, or be instrumental in the overthrow of their country's liberties."
As the opposition deepened, its natural tendency was to outbreak and violence. But this was carefully restrained. On one occasion in Boston it showed itself in the lawlessness of a mob. But the town, at a public meeting in Faneuil Hall, called without delay on the motion of the opponents of the Stamp Act, with James Otis as chairman, condemned the outrage. Eager in hostility to the execution of the Act, Boston cherished municipal order, and constantly discountenanced all tumult, violence, and illegal proceedings. Her equal devotion to these two objects drew the praises and congratulations of other towns. In reply, March 27th, 1766, to an address from the inhabitants of Plymouth, her own consciousness of duty done it thus expressed:
   "If the inhabitants of Boston have taken the legal and warrantable measures to prevent that misfortune of all others the most to be dreaded, the execution of the Stamp Act, and as a necessary means of preventing it have made any spirited applications for opening the custom-houses and courts of justice; if at the same time they have borne their testimony against outrageous tumults and illegal proceedings, and given any example of the Love of Peace and good order, next to the consciousness of having done their duty is the satisfaction of meeting with the approbation of any of their fellow-countrymen."
Learn now from the Diary of John Adams the results of this system:
   "The year 1765 has been the most remarkable year of my life. That enormous engine, fabricated by the British Parliament, for battering down all the rights and liberties of America - I mean the Stamp Act - has raised and spread through the whole continent a spirit that will be recorded to our honor with all future generations. In every Colony, from Georgia to New Hampshire inclusively, the stamp distributors and inspectors have been compelled by the unconquerable rage of the people to renounce their offices. Such and so universal has been the resentment of the people, that every man who has dared to speak in favor of the stamps, or to soften the detestation in which they are held, how great soever his abilities and virtues had been esteemed before, or whatever his fortune, connections, and influence had been, has been seen to sink into universal contempt and ignominy."
The Stamp Act became a dead letter. At the meeting of Parliament numerous petitions were presented, calling for its instant repeal. Franklin, at that time in England, while giving his famous testimony before the House of Commons, was asked whether he thought the people of America would submit to this Act if modified. His brief emphatic response was: "No, never, unless compelled by force of arms." Chatham yet weak with disease, but mighty in eloquence, exclaimed in ever-memorable words:
   "We are told America is obstinate - America is almost in open rebellion. Sir, I rejoice that America has resisted. Three millions of people so dead to all the feelings of liberty, as voluntarily to submit to be slaves, would have been fit instruments to make slaves of all the rest. The Americans have been wronged; they have been driven to madness. Iw will beg leave to tell the House in a few words that is really my opinion. It is that the Stamp Act be repealed, absolutely, totally, and immediately."
It was repealed. Within less than a year from its original passage denounced and discredited, it was driven from the Statute Book. In the charnel-house of history, with the unclean things of the Past, it now rots. Thither the Slave Act is destined to follow.
Sir,regarding the Stamp Act candidly and cautiously free from the animosities of the time, it is impossible not to see that, though gravely unconstitutional, it was at most an infringement of civil liberty only; not of personal liberty. There was an unjust tax of a few pence, with the chances of amercements by a single judge without a jury; but, by no provision of this Act was the personal liberty of any man assailed. Under it no freeman could be seized as a slave. Such an Act, though justly obnoxious to every lover of constitutional Liberty, cannot be viewed with the feelings of repugnance, enkindled by a statute, which assails the person liberty of every man, and under which any freeman may be seized as a slave. Sir, in placing the Stamp Act by the side of the Slave Act, I do injustice to that emanation of British tyranny. Both, indeed, infringe important rights; one of property; the other the vital right of all, which is to other rights as the soul to the body - the right of a man to himself. Both are condemned; but their relative condemnation must be measured by their relative characters. As Freedom is more than property; as Man is above the dollar that he earns; as Heaven, to which we all aspire, is higher than the earth, where every accumulation of wealth must ever remain; so are the rights assailed by an American Congress higher than those once assailed by the British Parliament. And just in this degree must history condemn the Slave Act more than the Stamp Act.
Sir, I might here stop. It is enough in this place, and on this occasion, to show the unconstitutionality of this enactment. Your duty commences at once. All legislation hostile to the fundamental law of the land should be repealed without delay. But the argument is not yet exhausted. Even if this Act could claim any validity or apology under the Constitution, which it cannot, it lacks that essential support in the Public Conscience of the States, where it is to be enforced, which is the life of all law, and without which any law must become a dead letter.
The Senator from South Carolina (Mr. Butler) was right, when, at the beginning of the session, he pointedly said that a law which could be enforced only by the bayonet, was no law. Sir, it is idle to suppose than an Act of Congress becomes effective, merely by compliance with the forms of legislation. Sometimes more is necessary. The Act must be in harmony with the prevailing public sentiment of the community upon which it bears. Of course, I do not suggest that the cordial support of every many or of every small locality is necessary; but I do mean that the public feelings, the public convictions, the public conscience, must not be touched, wounded, lacerated, by every endeavor to enforce it. With all these it must be so far in harmony, that, like other laws, by which property, liberty, and life, are guarded, it may be administered by the ordinary process of courts, without jeoparding the public peace or shocking good men. If this be true as a general rules - if the public support and sympathy be essential to the life of all law, this is especially the case in an enactment which concerns the important and sensitive rights of Personal Liberty. In conformity with this principle, the Legislature of Massachusetts, by formal resolution, in 1850, with singular unanimity, declared:
   "We hold it to be the duty of Congress to pass such laws only in regard thereto as will be maintained by the sentiments of the Free States, where such laws are to be enforced."
The duty of consulting these sentiments was recognised by Washington. While President of the United States, at the close of his Administration, he sought to recover a slave who had fled to New Hampshire. His autograph letter to Mr. Whipple, the Collector of Portsmouth, dated at Philadelphia, 28th November, 1796, which I now hold in my hand, and which has never before seen the light, after describing the fugitive, and particularly expressing the desire of "her mistress," Mrs. Washington, for her return, employs the following decisive language:
   "I do not mean, however, by this request, that such violent measures should be used as would excite a mob or riot, which might be the case if she has adherents, or even uneasy sensations in the minds of well-disposed citizens. Rather than either of these should happen, I would forego her services altogether; and the example, also, which is of infinite more importance."
             "GEORGE WASHINGTON"
Mr. Whipple, in his reply, dated at Portsmouth, December 22, 1796, an autograph copy of why I have, recognises the rule of Washington:
   "I will now Sir agreeably to your desire send her to Alexandria if it be practicable without the consequences which you except -- that of exciting a riot or a mob -- or creating uneasy sensations in the minds of well disposed Citizens -- the first cannot be calculated before hand -- it will be governed by the popular opinion of the moment --or the circumstances that may arise in the transaction. The latter may be sought into and judged of by conversing with such persons without discovering [i. e., revealing] the Occasion -- So ffar as I have had opportunity I perceive that different sentiments are entertained on this subject.
The fugitive never was returned; but lived in freedom to a good old age, down to a very recent period, a monument of the just forbearance of him whom we aptly call the Father of his Country. it is true that he sought her return. This we must regret, and find its apology. He was at the time a slaveholder. Though often with various degrees of force expressing himself against slavery, and promising his suffrage for its abolition, he did not see this wrong as he saw it at the close of life, in the illumination of another sphere. From this act of Washington, still swayed by the policy of the world, I appeal to Washington writing his will. From Washington on earth I appeal to Washington in Heaven. Seek not by his name to justify any such effort. His death is above his life. His last testament cancels his authority as a slaveholder. However he may have appeared before man, he came into the presence of God only as the liberator of his slaves. Grateful for this example, I am grateful also that, while a slaveholder, and seeking the return of a fugitive, he has left in permanent record a rule of conduct which, if adopted by his country, will make Slave-Hunting impossible. The chances of a riot or mob, r "even uneasy sensations among well-disposed persons," are to prevent any such pursuit.
Sir, the existing Slave Act cannot be enforced without violating the precept of Washington. Not merely "uneasy senations of well-disposed persons," but rage, tumult, commotion, mob, riot, violence, death, gush from its fatal overflowing fountains;
   - hoc fonte derivata clades in patriam populumque fluxit
   ["from this spring flowed the disaster which poured upon our country and people"]
          Horace (Book III, Ode 6)
Not a case occurs without endangering the public peace. Workmen are brutally dragged from employments to which they are wedded by years of successful labor; husbands are ravished from wives, and parents from children. Everywhere there is disturbance; at Detroit, Buffalo, Harrisburg, Syracuse, Philadelphia, New York, Boston. At Buffalo the fugitive was cruelly knocked by a log of wood against a red-hot stove, and his mock trial commenced while the blood still oozed from his wounded head. At Syracuse he was rescused by a sudden mob; so also at Boston. At Harrisburg the fugitive was shot; at Christiana the Slave-Hunter was shot. At New York unprecedented excitement, always with uncertain consequences, has attended every case. Again at Boston a fugitive, according to the received report, was first basely seized under pretext that he was a criminal; arrested only after a deadly struggle; guarded by officers who acted in violation of the laws of the State; tried in a Court-House surrounded by chains contrary to the common law; finally surrendered to Slavery by trampling on the criminal process of the State, under an escort in violation again of the laws of the State, while the pulpits trembled and the whole people, not merely "uneasy," but swelling with ill-suppressed indignation, for the sake of order and tranquillity, without violence witnessed the shameful catastrophe.
With every attempt to administer the Slave Act, it constantly becomes more revolting, particularly in its influence on the agents it enlists. Pitch cannot be touched without defilement, and all who lend themselves to this work seem at once and unconsciously to lose the better part of man. The spirit of the law passes into them, as the devils entered the swine. Upstart commissioners, the mere mushrooms of courts, vie and revie with other. Now by indecent speed, now by harshness of manner, now by a denial of evidence, now by crippling the defence, and now by open glaring wrong they make the odious Act yet more odious. Clemency, grace, and justice, die in its presence. All this is observed by the world. Not a case occurs which does not harrow the souls of good men, and bring tears of sympathy to the eyes, also those other noble tears which "patriots shed o'er dying laws."
Sir, I shall speak frankly. If there be an exception to this, it will be found chiefly with a peculiar class. It is a sorry fact that the "mercantile interest," in its unpardonable selfishness, twice in English history, frowned upon the endeavors to suppress the atrocity of Algerine Slavery; that it sought to baffle Wilberforce's great effort for the abolition of the African slave trade; and that, by a sordid compromise, at the formation of our Constitution, it exempted the same detested Heaven-defying traffic from American judgment. And now representatives of this "interest," forgetful that commerce is the child of Freedom, join in hunting the Slave. But the great heart of the people recoils from this enactment. It palpitates for the fugitive, and rejoices in his escape. Sir, I am telling you the facts. The literature of the age is all on his side. The songs, more potent than laws, are for him. The poets, with voices of melody, are for Freedom. Who could sing for Slavery? They who make the permanent opinion of the country, who mould our youth, whose words, dropped into the soul, are the germs of character, supplicate for the Slave. And now, sir, behold a new and heavenly ally. A woman inspired by Christian genius, enters the lists, like another Joan of Arc, and with marvellous powers sweeps the chords of the popular heart. Now melting to tears, and now inspiring to rage, her work everywhere touches the conscience, and makes the Slave-Hunter more hateful. In a brief period, nearly 100,000 copies of Uncle Tom's Cabin have been already circulated. But this extraordinary and sudden success - surpassing all other instances in the records of literature - cannot be regarded merely as the triumph of genius. Higher far than this, it is the testimony of the people, by an unprecedented act, against the Fugitive Slave Bill.
These things I dwell upon as the incentives and tokens of an existing public sentiment, which renders this Act practically inoperative, except as a tremendous engine of terror. Sir, the sentiment is just. Even in the lands of slavery, the slavetrader is loathed as an ignoble character, from whom the countenance is turned away; and can the Slave-Hunter be more regarded while pursuing his prey in a land of Freedom? In early Europe, in barbarous days, while Slavery prevailed, a Hunting Master, nach jagender Herr, as the Germans called him, was held in aversion. Nor was this all. The fugitive was welcomed in the cities, and protected under pursuit. Sometimes vengeance awaited the Hunter. Down to this day, at Revel, now a Russian city, a sword is proudly preserved with which a Hunting Baron was beheaded, who, in violation of the municipal rights of this place, seized a fugitive slave. Hostile to this Act as our public sentiment may be, it exhibits no trophy like this. The State laws of Massachusetts have been violated in the seizure of a fugitive slave; but no sword, like that of Revel, now hangs at Boston.
I have said, sir, that this sentiment is just. And is it not? Every escape from slavery necessarily and instinctively awakens the regard of all who love Freedom. The endeavor, though unsuccessful, reveal courage, manhood, character. No story is read with more interest than that of our own Lafayette, when, aided by a gallant South Carolinian, in defiance of the despotic ordinances of Austria, kindred to our Slave Act, he strove to escape from the bondage of Olmutz. Literature pauses with exultation over the struggles of Cervantes, the great Spaniard, while a slave in Algiers, to regain the Liberty for which he says, in his immortal work, "we ought to risk life itself, Slavery being the greatest evil that can fall to the lot of man." Science, in all her manifold triumphs, throbs with pride and delight, that Arago, the astronomer and philosopher - devoted republican also - was redeemed from barbarous Slavery to become one of her greatest sons. Religion rejoices serenely, with joy unspeakable, in the final escape of Vincent de Paul. Exposed in the public squares of Tunis to the inspection of the traffickers in human flesh, this illustrious Frenchman was subjected to every vileness of treatment, like a horse, compelled to open his mouth, to show his teeth, to trot, to run, to exhibit his strength in lifting burthens, and then, like a horse, legally sold in market overt. Passing from master to master, after a protracted servitude, he achieved his freedom, and regaining France, commenced that resplendent career of charity by which he is placed among the great names of Christendom. Princes and orators have lavished panegyrics upon this fugitive slave; and the Catholic Church, in homage to his extraordinary virtues, has introduced him into the company of saints.
Less by genius or eminent services, than by sufferings, are the fugitive slaves of our country now commended. For them every sentiment of humanity is aroused:
       - "Who could refrain
    That had a heart to love, and in that heart
    Courage to make his love known?"
Rude and ignorant they may be; but in their very efforts for Freedom, they claim kindred with all that is noble in the Past. They are among the heroes of our age. Romance has no stories of more thrilling interest than theirs. Classical antiquity has preserved no examples of adverturous trial more worthy of reknown. Among them are men whose names will be treasured in the annals of their race. By the eloquent voice they have already done much to make their wrongs known, and to secure the respect of the world. History will soon lend them her avenging pen. Proscribed by you during life, they will proscribe you through all time. Sir, already judgment is beginning. A righteous public sentiment palsies your enactment.
And now, sir, let us review the field over which we have passed. We have seen that any compromise, finally closing the discussion of Slavery under the Constitution, is tyrannical, absurd, and impotent; that as Slavery can exist only by virtue of positive law, and as it has no such positive support in the Constitution, it cannot exist within the National jurisdiction; that the Constitution nowhere recognises property in man, and that according to its true interpretation, Freedom and no Slavery is national, while Slavery and not Freedom is sectional; that, in this spirit, the National Government was first organized under Washington, himself an Abolitionist, surrounded by Abolitionists, while the whole country, by its Church, its Colleges, its Literature, and all its best voices, was united against Slavery, and the national flag at that time nowhere within the National Territory covered a single slave; still further, that the National Government is a Government of delegated powers, and as among these there is no power to support Slavery, this institution cannot be national, nor can Congress in any way legislate in its behalf; and, finally, that the establishment of this principle is the true way of peace and safety for the Republic. Considering next the provision for the surrender of fugitives from labor, we have seen that it was not one of the original compromises of the Constitution; that it was introduced tardily and with hesitation, and adopted with little discussion, and then and for a long period after was regarded with comparative indifference; that the recent Slave Act, though many times unconstitutional, is especially so on two ground - first, as a usurpation by Congress of powers not granted by the Constitution, and infraction of rights secured to the States; and secondly, as a denial of Trial by Jury, in a question of Personal Liberty and a suit at common law; that its glaring unconstitutionality finds a prototype in the British Stamp Act, which our father refused to obey as unconstitutional on two parallel grounds - first, because it was a usurpation by Parliament of powers not belonging to it under the British Constitution, and an infraction of rights belongs to the Colonies; and secondly, because it was a denial of Trial by Jury in certain cases of property; that as Liberty is far above property, so is the outrage perpetrated by the American Congress far above that perpetrated by the British Parliament; and, finally, that the 'Slave Act has not that support in the public sentiment of the States where it is to be executed, which is the life of all law, and which prudence and the precept of Washington require.
Sir, thus far I have arrayed the objections to this Act, and the false interpretations out of which it has sprung. But I am asked what I offer as a substitute for the legislation which I denounce. Freely I will answer. It is to be found in a correct appreciation of the provision of the Constitution, underwhich this discussion occurs. Look at it in the double light of reason and of Freedom, we cannot mistake the exact extent of its requirements. Here is the provision:
   "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."
From the very language employed, it is obvious that this is merely a compact between the States, with a prohibition on the States, conferring no power on the nation. In its natural signification it is a compact. According to the examples of other countries, and the principles of jurisprudence, it is a compact. All arrangements for the extradition of fugitives have been customarily compacts. Except under the express obligations of treaty, no nation is bound to surrender fugitives. Especially has this been the case with fugitives for Freedom. In medieval Europe, cities refused to recognise this obligation in favor of persons even under the same National Government. In 1531, while the Netherlands and Spain were united under Charles V., the Supreme Council of Mechlin rejected an application from Spain for the surrender of a fugitive slave. By express compact alone could this be secured. But the provision of the Constitution was borrowed from the Ordinance of the Northwestern Territory, which is expressly declared to be a compact; and this Ordinance, finally drawn by Nathan Dane, was again borrowed in its distinctive features from the early institutions of Massachusetts, among which, as far back as 1643, was a compact of like nature with other New England States. Thus this provision is a compact in language, in nature, in its whole history; as we have already seen it is a compact, according to the intentions of our Fathers and the genius of our institutions.
As a compact, its execution depends absolutely upon the States, without any intervention of the Nation. Each State, in the exercise of its own judgment, will determine for itself the precise extent of the obligations assumed. As a compact in derogation of Freedom, it must be construed strictly in every respect - leaning always in favor of Freedom, and shunning any meaning, not clearly necessary, which takes away important personal rights; mindful that the parties to whom it is applicable are regarded as "persons," of course with all the rights of "persons" under the Constitution; especially mindful of the vigorous maxim of the common law, that "he is cruel and impious who does not always favor Freedom;" and also, completely adopting in letter and in spirit, as becomes a just people, the rule of the great Commentator, that "the law is always read to catch at any thing in favor of Liberty." With this key the true interpretation is natural and easy.
Briefly, the States are prohibited from any "law or regulation" by which any "person" escaped from "service or labor: may be discharged therefrom, and on establishment of the claim to such "service or labor," he is to be delivered up." But the mode by which the claim is to be tried and determined is not specified. All this is obviously within the control of each State. It may be done by virtue of express legislation, in which event any Legislature, justly careful of Personal Liberty, would surround the fugitive with every shield of the law and Constitution. But here a fact, pregnant with Freedom, must be studiously observed. The name Slave - that litany of wrong and woe - does not appear in the clause. Here is no unambiguous phrase, incapable of a double sense; no "positive" language, applicable only to slaves, and excluding all other classes; no word of that absolute certainty in every particular, which forbids any interpretation, except that of Slavery, and makes it impossible "to catch at any thing in favor of Liberty." Nothing of this kind is here. But passing from this, "cruelly and impiously" renouncing for the moment all leaning for Freedom; refusing "to catch at any thing in favor of Liberty;" abandoning the cherished idea of the Fathers, that "It was wrong to admit in the Constitution the idea of property in man;" and, in the face of these commanding principles, assuming two things, first, that, in the evasive language of this clause, the Convention whatever may have been the aim of individual members, really intended fugitive slaves, which is sometimes question, and, secondly, that, if they so intended, the language employed can be judicially regarded as justly applicable to fugitive slaves, which is often and earnestly denied; then the whole proceeding, without any express legislation, may be left to the ancient and authentic forms of the common law, familiar to the framers of the Constitution and ample for the occasion. If the fugitive be seized without process, he will be entitled at once to his write de Homine Replegiandok while the master, resorting to process, may find his remedy in the write de Nativo Habendo - each writ requiring Trial by Jury. If from ignorance or lack of employment these processes have slumbered inour country, still they belong to the great arsenal of the common law, and continue, like other ancient writs, tanquam gladium in vagina, ready to be employed at the first necessity. They belong to the safeguard of the citizen. But in any event and in either alternative the proceedings would be by "suit at common law," with Trial by Jury; and it would be the solemn duty of the court, according to all the forms and proper delays of the common law, to try the case on the evidence; strictly to apply all the protecting rules of evidence, and especially to require stringent proof, by competent witnesses under cross-examination, that the person claimed was held to service; that his service was due to the claimant; that he had escaped from the State where such service was due; and also proof of the laws of the State under which he was held. Still further, to the Courts of each State must belong the determination of the question, to what classes of persons, according to just rules of interpretation, the phrase "persons held to service or labor" is strictly applicable.
Such is this much-debated provision. The Slave States, at the formation of the Constitution, did not propose, as in the cases of Naturalization and Bankruptcy, to empower the National Government to establish an uniform rule for the rendition of fugitives from labor, throughout the United States; they did not ask the National Government to charge itself in any way with this service; they did not venture to offend the country, and particularly the Northern States, by any such assertion of a hateful right. They were content, under the sanctions of compact, to leave it to the public sentiment of the States. There, I insist it shall remain.
Mr. President, I have occupied much time; but the great subject still stretches before us. One other point yet remains, which I should not leave untouched, and which justly belongs to the close. The Slave Act violates the Constitution and shocks the Public Conscience. With modesty and yet with firmness let me add, sir, it offends against the Divine Law. No such enactment can be entitled to support As the throne of God is above every earthly throne, so are his laws and statutes above all the laws and statutes of man. To question these, is to question God himself. But to assume that human laws are beyond question, is to claim for their fallible authors infallibility. To assume that they are always in conformity with those of God, is presumptuously and impiously to exalt man to an equality with God. Clearly human laws are not always in such conformity; nor can they ever be beyond question from each individual. Where the conflict is open, if Congress should command the perpetration of murder, the office of conscience as final arbiter is undisputed. But in every conflict the same Queenly office is hers. By no earthly power can she be dethroned. Each person, after anxious examination, without haste, without passion, solemnly for himself must decide this great controversy. Any other rule attributes infallibility to human laws, places them beyond question, and degrades all men to an unthinking passive obedience.
According to St. Augustine, an unjust law does not appear to be a law; lex esse non videtur quoe justa non fuerit; and the great fathers of the Church, while adopting these words, declare openly that unjust laws are not binding. Sometimes they are called "abusers," and not laws; sometimes "violences," and not law. And here again the conscience of each person is the final arbiter. But this lofty principle is not confined to the Church. A master of philosophy in early Europe, a name of intellectual renown, the eloquent Abelard, in Latin verses addressed to his son, has clearly expressed the universal injunction:
    Jussa potestatis terrenae discutienda
       Coelestis tibi mox perficienda scias.
    Sisquis divinis jubeat contraria jussis
       Te contra Dominum pactio nulla trahat.
The mandates of an eartly power are to be discussed; those of Heaven must at once be performed; nor can any agreement constrain us again God. Such is the rule of morals. Such, also, by the lips of judges and sages, has been the proud declaration of the English law, whence our own is derived. In this conviction patriots have fearlessly braved unjust commands, and martyrs have died.
And now, sir, the rule is commended to us. The good citizen, as he thinks of the shivering fugitive, guilty of no crime, pursued, hunted down like a beast, while praying for Christian help and deliverance, and as he reads the requirements of this act, is filled with horror. Here is a despotic mandate, "to aid and assist in the prompt and efficient execution of this law." Again let me speak frankly. Not rashly would I set myself against any provision of law. This grave responsibility I would not lightly assume. But here the path of duty is clear. By the Supreme Law, which commands me to do no injustice; by the comprehensive Christian Law of Brotherhood; by the Constitution, which I have sworn to support; I am bound to disobey this act. Never, in any capacity, can I render voluntary aid in its execution. Pains and penalties I will endure; but this great wrong I will no do. "I cannot obey; but I can suffer," was the exclamation of the author of Pilgrim's Progress, when imprisoned for disobedience to an earthly statute. Better suffer injustice than do it. Better be the victim than the instrument of wrong. Better be even the poor slave, returned to bondage, than the unhappy Commissioner.
There is, sir, an incident of history, which suggests a parallel, and affords a lesson of fidelity. Under the triumphant exertions of that Apostolic Jesuit, St. Francis Xavier, large numbers of the Japanese, amounting to as many as two hundred thousand - among them princes, generals, and the flower of the nobility - were converted to Christianity. Afterwards, amidst the frenzy of civil war, religious persecution arose, and the penalty of death was denounced against all who refused to trample upon the effigy of the Redeemer. This was the Pagan law of a Pagan land. But the delighted historians records that scarcely one from the multitude of converts was guilty of this apostasy. The law of man was set at naught. Imprisonment, torture, death, were preferred. Thus did this people refuse to trample on the painted image. Sir, multitudes among us will not be less steadfast in refusing to trample on the living image of their Redeemer.
Finally, sir, for the sake of peace and tranquillity, cease to shock the Public Conscience; for the sake of the Constitution, cease to exercise a power which is nowhere granted, and which violates inviolable rights expressly secured. Leave this question where it was left by our fathers at the formation of our National Government, in the absolute control of the States, the appointed guardians of Personal Liberty. Repeal this enactment. Let its terrors no longer rage through the land. Mindful of the lowly whom it pursues; mindful of the good men perplexed by its requirements; in the name of charity, in the name of the Constitution, repeal this enactment, totally and without delay. Be inspired by the example of Washington. Be admonished by those words of Oriental piety - "Beware of the groans of the wounded souls. Oppress not to the utmost a single heart; for a solitary sigh has power to overset a whole world." [Sa'di]
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