A Letter to the Hon. Samuel A. Eliot, Representative in Congress From the City of Boston Part 1

A Letter to the Hon. Samuel Eliot, Representative in Congress From the City of Boston, In Reply to His Apology For Voting For the Fugitive Slave Bill.

by Hanc.o.c.k.

A LETTER, &c.

SIR;--

An English courtier procured a colonial judges.h.i.+p for a young dependant wholly ignorant of law. The new functionary, on parting with his patron, received from him the following sage advice,--"Be careful never to a.s.sign reasons, for whether your judgments be right or wrong, your reasons will certainly be bad." You have cause to regret that some friend had not been equally provident of your reputation, and intimated that it was only expected of you to vote for Mr. Webster's measures, but by no means to a.s.sist him in vindicating them. You did, indeed, vote precisely as those who procured your nomination intended you should; yet, on your return home, you found your name had become a byword and a reproach in your native State. Another election approached, but you declined submitting your recent course to the judgment of the electors, and withdrew from the canva.s.s. But although the people were thus prevented from voting against you, they persisted in speaking and writing against you. Anxious to relieve yourself from the load of obloquy by which you were oppressed, in an evil hour you rashly appealed to the public through the columns of a newspaper, and gave the "reasons"

of your vote for the Fugitive Slave Law. You had a high and recent example of the kind of logic suited to your case. You might have indulged in transcendental nonsense, and talked about the climate, soil, and scenery of New England and the wonders of physical geography, and, a.s.suming that negroes were created free, you might have contended that, in voting for a law to catch and enslave them, you had avoided the folly of reenacting the law of G.o.d. Reasons of this sort, you and others had declared, "had convinced the understanding and touched the conscience of the nation." Instead of following an example so ill.u.s.trious and successful, you a.s.sign "reasons" so very commonplace, that the most ordinary capacity can understand them, and so feeble, that the slightest strength can overthrow them.

Your first "reason" is, that the delivery of fugitives is a const.i.tutional obligation. By this you mean, that, by virtue of the construction of a certain clause in the Const.i.tution by the Supreme Court, Congress has the power to pa.s.s a law for the recovery of fugitive slaves. Well, Sir, does this const.i.tutional obligation authorize Congress to pa.s.s _any_ law whatsoever on the subject, however atrocious and wicked? Had you voted for a law to prevent smuggling, in which you had authorized every tide-waiter to shoot any person suspected of having contraband goods in his possession, would it have been a good "reason"

for such an atrocity, that the collection of duties was "a const.i.tutional obligation"? You are condemned for voting for an arbitrary, detestable, diabolical law,--one that tramples upon the rights of conscience, outrages the feelings of humanity, discards the rules of evidence, levels all the barriers erected by the common law for the protection of personal liberty, and, in defiance of the Const.i.tution, and against its express provisions, gives to the courts the appointment of legions of slave-catching judges. And your "reason"

for all this is, that the delivery of fugitives is "a const.i.tutional obligation"! The "obligation" is not in issue. Please to understand, Sir, that it is not denied. It is for the _manner_ in which you profess to have discharged the obligation that you are censured, and be it remembered, that not one of the obnoxious provisions of your law is required by the Const.i.tution. You go on and attempt to enlighten your const.i.tuents as to the history of this const.i.tutional obligation. As the obligation affords you no apology for the iniquitous features of your law, its history is, of course, mere surplusage, and serves no other purpose than to divert the attention of your readers from yourself.

About two thirds of your apology is occupied with an historical disquisition, which has as much to do with your vindication as the question respecting the existence of a lunar atmosphere. I will not, however, withhold from you whatever benefit you may derive from either your logic or your history, but will give each a fair and honest examination. You inform the public that, at the time the Const.i.tution was formed,

"Slavery had been abolished in some of the States, and still existed in others. Here seemed an insurmountable incompatibility of interests, and nothing perplexed the wise men of that day--and they were _very_ wise men--so much as this topic. At last they agreed that the new Const.i.tution should have nothing to do with it; that the word _slavery_ should not be mentioned in it, and that it should be left to the States themselves to establish, retain, or abolish it, just as much after the adoption of the Const.i.tution as before. But in order to secure the existence of the inst.i.tution to those States who preferred it, it was agreed that the persons escaping from labor to which they were bound, in one commonwealth, and found in another, should be returned to the State from which they had fled. The provision was necessary for the preservation of this interest _in statu quo_. It did not extend slavery. It kept it where it already was, and where it could not have continued if every slave who escaped North was at once free and irreclaimable.

The members of the confederacy from the South saw this distinctly, and _deliberately declared_ that they could not and would not enter a union with States who would tempt away their slaves with the prospect of immediate and permanent freedom.... The Const.i.tution was adopted with this provision, and it could not have been adopted without it."

Thus we learn from you, Sir, that when the Const.i.tution was formed, "slavery had been abolished in some of the States." It is a pity you did not vouchsafe to tell us which of the States had thus early and honorably distinguished themselves. Of the thirteen American States in 1787, how many, Sir, had _by law_ abolished slavery? NOT ONE. Your "some States" consisted of Ma.s.sACHUSETTS alone. And how was slavery abolished there? Not by any express prohibition in her const.i.tution, nor by any act of her legislature. Fortunately, her const.i.tution, like that of most other States, contained a general declaration of human rights, somewhat similar to the "rhetorical abstraction" in the Declaration of Independence. Two or three years before the Federal Convention a.s.sembled, a young lawyer, perceiving that the declaration in the const.i.tution had inadvertently made no exclusion of the rights of men with dark complexions, brought an action for a slave against his master for work done and performed. An upright and independent court, not having the fear of our Southern brethren before their eyes, decided that the slave was a MAN, and therefore ent.i.tled to the rights which the const.i.tution declared belonged to _all_ men, and gave judgment for the plaintiff. In this way, Sir, was slavery abolished in Ma.s.sachusetts, and hence the delegates from Ma.s.sachusetts in the Convention were the only ones who represented a _free_ State. And now, Sir, what becomes of your "insurmountable incompatibility of interests" arising from the fact that "slavery had been abolished in some States and still existed in others,"

which you tell us so much perplexed the wise men of that day? We shall see, Sir, that on questions touching human bondage the Ma.s.sachusetts delegation seem to have been slaveholders in heart, and did not partake of the perplexity which troubled the wise men. With the exception of that delegation, there were not probably half a dozen members of the convention who were not slaveholders.

It would seem from your historical review, that the clause in the Const.i.tution respecting fugitive slaves was the grand compromise between the North and the South, without which "the Const.i.tution could not have been adopted"; and that to this clause we owe our glorious slave-catching Union. You fortify this wonderful historical discovery by appealing to the "deliberate declarations" of Southern members, that they "would not enter a union with States who would tempt away their slaves," &c. It is to be regretted that you have not deemed it expedient to refer to the records of these declarations, as other students of our const.i.tutional history are wholly ignorant of them. Suffer me, Sir, to enter into a few historical details, for the purpose of vindicating the liberty I take to differ with you as to the accuracy of your statements.

The Convention met in Philadelphia, 25th May, 1787. On the 29th of the same month, Mr. Randolph, of Virginia, submitted a plan of government.

It contained no allusion to fugitive slaves. On the same day, Mr.

Charles Pinckney, of South Carolina, submitted another plan. This last provided for the surrender of fugitive criminals, but was silent about fugitive slaves. On the 15th of June, Mr. Patterson, of New Jersey, submitted a third plan. This also provided for the surrender of fugitives from justice, but not from bondage. On the 18th, Mr. Hamilton announced his plan, but the fugitive slave found no place in it. On the 26th of June, the Convention, having agreed on the general features of the proposed Const.i.tution in the form of resolutions, referred them to "a committee of detail," for the purpose of reducing them to the form of a Const.i.tution. In these resolutions, there was not the most distant allusion to fugitive slaves. On the 6th of August, the committee reported the draft of a Const.i.tution, and yet, strange as you may deem it, the provision without which, you tell us, the Const.i.tution could not have been adopted, was not in it, although there was in it a provision for the surrender of fugitive criminals. For three months had the Convention been in session, and not one syllable had been uttered about fugitive slaves. At last, on the 29th of August, as we learn from the minutes, "It was moved and seconded to agree to the following proposition, to be inserted after the 15th article: 'If any person, bound to service or labor in any of the United States, shall escape into another State, he or she shall not be discharged from such service or labor in consequence of any regulation subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor,' _which pa.s.sed unanimously_." Really, Sir, I find in this record but little evidence of the perplexity which distressed our wise men, or of the great compromise between the North and South, on which you dwell. The 15th article, referred to above, was the article providing for the surrender of fugitives from justice, and this suggested the idea, that it would be well to provide, also, for the surrender of fugitive slaves. In an a.s.sembly consisting almost exclusively of slaveholders, the idea was exceedingly relished; and without a word of opposition, the suggestion was unanimously adopted.

From Mr. Madison's report we learn that, the day before, Messrs. Butler and Pinckney had informally proposed that fugitive slaves and servants should be delivered up "like criminals." "Mr. Wilson [of Penn.]. This would oblige the Executive of the State to do it at the public expense.

Mr. Sherman [of Conn.] saw no more propriety in the public seizing and surrendering a slave or servant than a horse." (_Madison Papers_, p.

1447.) The subject was here dropped. The next day the motion was made in form, and, as Mr. Madison says, "agreed to, _nem. con._" From the phraseology of the motion, and the objections of Messrs. Wilson and Sherman, it was perfectly understood that the obligation of delivery was imposed on the States, and that no power was intended to be conferred on Congress to legislate on the subject. Messrs. Wilson and Sherman's objections arose from no moral repugnance to slave-catching, but from the inconvenience they apprehended the _State_ authorities would be subjected to; and Mr. Wilson perhaps spoke from experience, as his own State had at that very time a law for catching and returning fugitive slaves from other States. The idea, therefore, that this agreement was a _compromise_ between the North and South is wholly imaginary, and you, Sir, must have mistaken some recent fulminations from the Southern chivalry for the "deliberate declarations" which you suppose were made in the Convention. Believe me, Sir, no members of the Convention ever declared they would not enter into the Union, unless it was agreed to surrender fugitive slaves, for the obvious reason, that the Northern slaveholders required no threats from their Southern brethren to consent to a compact convenient to both. It is very true, Sir, that there were compromises, and that there were "deliberate declarations," but they had no reference to the surrender of runaway slaves. I have pointed out your historical mistake, not because it has the remotest bearing on your justification, but because you seem to think that it has.

The first great compromise was between, not the North and the South, but the small and the large States. The one claimed, and the other refused, an equality of suffrage in the national legislature. It was at last agreed, that the suffrage should be equal in one house, and according to population in the other. This was the first compromise. Then came the question, What should const.i.tute the representative population? The Southern States had more slaves than the Northern, and the former insisted that slaves should be included in the representative population. This would have given the Southern States an unfair preponderance in Congress. Moreover, a portion of the Southern States were engaged in the African slave-trade, and, of course, every slave landed on their sh.o.r.es would increase their political power in Congress.

To reconcile the North to slave representation, it was offered that _direct taxation_ should be proportioned to representation. But the North was reluctant, and, as usual, was bullied into a compromise. Mr.

Davie, of North Carolina, made a "deliberate declaration":--"He was sure that North Carolina would never confederate on any terms that did not rate them (the slaves) at least as three fifths. If the Eastern States meant, therefore, to exclude them (the slaves) altogether, the business was at an end." (_Madison Papers_, p. 1081.) This threat, and others like it, settled the matter. The compromise, of three fifths of the slaves to be included in the representative population, was accepted on the motion of _a New England member_; and the consequence is, that the slave States have now twenty-one members in the lower house of Congress more than they are ent.i.tled to by their free population. This was the second compromise. There was still a third, far more wicked and detestable, and effected by the "deliberate declarations" of Southern members. The "committee of detail" has been already mentioned. It consisted of Messrs. Rutledge of South Carolina, Randolph of Virginia, Wilson of Pennsylvania, Ellsworth of Connecticut, and Gorham of Ma.s.sachusetts. This committee, it will be recollected, were to reduce to the _form_ of a Const.i.tution the resolutions agreed on by the Convention. Neither in the resolutions themselves, nor in the discussions which preceded their adoption, had any reference been made to a guarantee for the continuance of the African slave-trade.

Nevertheless, this committee, of their own will and pleasure, inserted in their draft the following clause:--"No tax or duty shall be laid by the legislature on articles exported from any State, _nor on the migration or importation of such persons as the several States shall think proper to admit, nor shall such migration or importation be prohibited_." To understand the cunning wickedness of this clause, it must be recollected that Congress was to have power to regulate foreign commerce, and commerce between the States; and hence it might, at a future time, suppress both the foreign and domestic commerce in human flesh, or it might burden this commerce with duties. Hence this artfully expressed perpetual restriction on the power of Congress to interfere with the traffic in human beings. As this grand scheme was concocted in the committee, and not in the Convention, it may be interesting to inquire into its paternity.

In the debates which ensued on this clause, Mr. Ellsworth, one of the committee who reported it, "was for leaving the clause as it now stands.

_Let every State import what it pleases._ The morality or wisdom of slavery are considerations belonging to the States themselves. _What enriches a part enriches the whole_, and the States are the best judges of their particular interests. The old Confederation had not _meddled_ with this point, and he did not see any greater necessity for bringing it within the policy of the new one." "As slaves multiply so fast in Virginia and Maryland that it is _cheaper_ to raise than to import them, whilst in the _sickly_ rice-swamps foreign supplies are _necessary_, if we go no farther than is urged [a proposal to permit the trade for a limited time], we shall be unjust towards South Carolina and Georgia.

Let us not intermeddle." (_Madison Papers_, pp. 1389, 1391.) This gentleman was one of your "very wise men"; and his mantle has recently fallen upon other wise men from the East. Mr. Wilson, another member of the committee, objected. "All articles imported," said he, "are to be taxed; slaves alone are exempt. This is, in fact, a bounty on that article." The clause was referred to another committee, who modified it, by limiting the restriction to 1800. It was moved to guarantee the slave-trade for twenty years, by postponing the restriction to 1808.

This motion was _seconded_ by Mr. Gorham, another member of the committee. Mr. Randolph, also of the committee, was against the slave-trade, and opposed to any restriction on the power of Congress to suppress it. Two of the committee, then, we find, were against the trade, and three, Messrs. Rutledge, Ellsworth, and Gorham, for perpetuating it. And now, Sir, what were the inducements which prevailed on the two wise men from the East to yield their consent to a proposition so wicked and abominable? We are, of course, not informed what pa.s.sed in the committee, but we can well imagine, from the language used by the chairman and others in the Convention. Said Mr. Rutledge, "If the Convention thinks North Carolina, South Carolina, and Georgia will ever agree to this plan [the Federal Const.i.tution] 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." In other words, "Gentlemen of the North, no Union without the African slave-trade." Said Mr. Charles Pinckney, "South Carolina can never receive the plan [of the Const.i.tution] if it prohibits the slave-trade. In every proposed extension of the powers of Congress, that State has expressly and watchfully excepted that of meddling with the importation of negroes." (_Madison Papers_, p. 1389.) Mr. Charles C.

Pinckney "thought himself bound to declare candidly, that he did not think South Carolina would stop her importations of slaves in any short time." Thus you see, Sir, that the "deliberate declarations" to which you allude were made in reference to the continuance of the African slave-trade, and not, as you suppose, to the catching of fugitive slaves. Two New England gentlemen of the committee yielded to these declarations, and sacrificed conscience and humanity for the sake of the Union, and the consideration that what enriched a part enriched the whole. Happily, in this case, Southern bl.u.s.ter was met by Southern bl.u.s.ter, and it is owing to Virginia, and not to the virtue and independence of New England, that the Const.i.tution was rescued from the infamy of granting a solemn and perpetual guarantee to an accursed commerce.

In Virginia, the slaves, as Mr. Ellsworth remarked, multiplied so fast, that it was _cheaper_ to raise than import them. She was then, as now, a breeding State for the Southern markets. Hence, her delegates were as ready to bl.u.s.ter for protection, as the South Carolina delegates were for a free trade in men and women. Of course, the _motives_ a.s.signed were patriotic, not selfish. Mr. Randolph "could never agree to the clause as it stands. He would sooner RISK THE CONSt.i.tUTION." (_Madison Papers_, p. 1396.) Mr. Madison would not consent to the continuance of the traffic till 1808. "Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the American character, than to say nothing about it in the Const.i.tution." (_Madison Papers_, p. 1427.) Mr. Mason from Virginia denounced the traffic as "infernal." (_Madison Papers_, p.

1390.) The result of all these threats on each side was, as usual, a compromise, by which Congress was prohibited from suppressing the foreign and internal commerce in slaves for twenty years, and was left at liberty to do as it might see fit, after that period. After twenty years the foreign trade was suppressed, and North and South Carolina and Georgia remained in the Union! Virginia, as well as the other Slave States, is greatly interested in the home slave-trade, and that has _not_ been suppressed, although Congress has full power over it.

It does not appear from Mr. Madison's report what reply was made in the Convention to the Virginia objections, but in his speech in the Convention of his own State, he tells us,--"The gentlemen from South Carolina and Georgia argued in this manner: We have now liberty to import this species of property, and much of the property now possessed had been purchased or otherwise acquired in contemplation of improving it by the a.s.sistance of imported slaves. What would be the consequence of hindering us in this point? The _slaves_ of Virginia would rise in value, and we should be obliged to go to your markets." (_Elliott's Debates_, III. 454.) Certainly, Sir, these South Carolina and Georgia delegates were "very wise men," and their predictions are now history, and the planters of Georgia, South Carolina, Mississippi, and Louisiana buy slaves of the Virginia breeders. But what shall I say of the wise men from the East? This horrible compromise, this guarantee of the African slave-trade for twenty years, was carried by the votes of the Ma.s.sachusetts and Connecticut delegates, and would have been defeated, had they had the courage and virtue to have voted against it.

I have indulged in this long digression, to show that the clause in the Const.i.tution respecting fugitive slaves was not, as you represent it, the great compromise of the Const.i.tution, the key-stone of the Union, and that our slaveholding fathers were not, as you suppose, greatly perplexed, nor their consciences deeply wounded, by the existence of slavery in all the States of the confederacy with one exception. Having disposed of your history, I return to your logic.

Whether the const.i.tutional injunction to surrender fugitive slaves was a compromise or not, is of no practical importance. The clause speaks for itself, and prescribes no mode by which the t.i.tle of the claimant shall be ascertained, while it expressly implies that the t.i.tle shall be established before the surrender is made. Hence, the fair presumption is, that the t.i.tle to a MAN shall be proved, with at least as much certainty and formality as the t.i.tle to a horse. Had you, Sir, in your law, provided that a Virginian shall not come to Boston, and there seize and carry off a husband, wife, or child but by the same process, and on as strong evidence, as he may now seize and carry off a horse which you claim as your own, instead of finding your name a byword and a reproach, you would have been honored and applauded by your fellow-citizens, and returned to Congress by a triumphant vote; nor is there a syllable in the Const.i.tution which prohibits or discountenances such a mode of deciding the t.i.tle to a human being. It is in vain, then, Sir, that you plead your "const.i.tutional obligation" in justification of your most detestable law. But, as if one wrong could justify another, you plead in your excuse the law of 1793, and you ask in your simplicity of those who condemn your law if they do not perceive that they are "denouncing their fathers." Well, Sir, were our fathers infallible? Pity it is, Sir, that you were not on the floor of Congress when that body declared the African slave-trade to be PIRACY. You might then, Sir, have risen in your place, and inquired, "Do you not perceive that you are denouncing your fathers, who were very wise men, and who guaranteed for twenty years the very traffic which you now proclaim to be piracy?" Pity it is, Sir, that you did not stand by the side of your patron on Plymouth Rock, and whisper in his ear, "Do you not perceive that you are denouncing our fathers?" when he declared, "In the sight of our law the African slave-trader is a PIRATE and a FELON, and in the sight of Heaven an offender beyond the ordinary depth of human guilt." Mr. Webster is better versed in const.i.tutional history than you are, and he well knew that some of our fathers "deliberately declared they would not enter a Union" in which they were to be debarred from pursuing this piratical, felonious, guilty traffic. Our fathers were mostly slaveholders, and yet you, Sir, unconsciously denounce both their morality and intelligence, when you affirm the inst.i.tution of slavery to be "wrong and unwise." And yet all who presume to find fault with your cruel, unjust, wicked law are guilty forsooth of denouncing their fathers!

You tell us that the Convention of 1787 "_agreed that the new Const.i.tution should have nothing to do with slavery_." I have not been so fortunate as to find the record of this agreement, but if such a compact was indeed made, then seldom, if ever, has a solemn covenant been more grossly and wickedly violated. Is it, Sir, in virtue of this agreement, that you voted to fine and imprison every conscientious, humane citizen who may refuse, at the command of a minion of a commissioner, to join in a slave hunt? Did this agreement confer on the holders of slaves an enlarged representation in Congress? Was it in pursuance of this agreement that the importation of slaves was guaranteed for twenty years? Did this agreement authorize the Federal government to enter into negotiations with Great Britain and Mexico for a mutual surrender of runaway slaves? Was it in pursuance of this same agreement, that our government negotiated with Russia and Spain to prevent emanc.i.p.ation in Cuba,--a traitorous conspiracy with despots against the rights of man? How, Sir, was this agreement ill.u.s.trated, when Daniel Webster, as Secretary of State under John Tyler of glorious memory, made a demand on Great Britain for the surrender of the slaves of the Creole, who had gallantly achieved their liberty, and taken refuge in the West Indies? How comes it, Sir, that under this agreement an act of Congress secures to the Slave States officers in the navy in proportion to the number of their slaves? How is it, that under this agreement colored men are seized in the District of Columbia, under "the exclusive jurisdiction" of the Federal government on the _suspicion_ of being slaves, and, when that suspicion is reb.u.t.ted by the non-appearance of any claimant, are sold as slaves for life, to pay their jail-fees?

Perhaps it would be denouncing our fathers, to say that Messrs. Webster and Ca.s.s may search the archives of Austria in vain for any act so utterly diabolical as this, perpetrated by a government which it was agreed "should have nothing to do with slavery." Was it to carry out this famous agreement that the Federal government officially declared through its Secretary, Mr. Calhoun, that Texas was annexed to preserve the inst.i.tution of slavery from the perils that threatened it?

Once more, Sir. We all know that the slaveholders regard the free blacks as dangerous to the subordination of their slaves, and are contemplating their forcible removal. Think you, Sir, Mr. Webster was mindful of the agreement you have discovered, when, on the 7th of last March, in his place in the Senate, he proposed his magnificent scheme of taxing the whole nation untold millions to give additional security to property in human beings? "If," said the Ma.s.sachusetts Senator, "any gentleman from the _South_ shall propose a scheme of colonization to be carried on by _this government_ upon a large scale, for the transportation of free colored people to any colony or _any place in the world_, I should be quite disposed to incur almost any degree of expense to accomplish the object." The magnitude of the scheme, and the cost at which it is to be accomplished, are thus hinted:--"There have been received into the treasury of the United States EIGHTY MILLIONS of dollars, the proceeds of the sales of the public lands ceded by Virginia. If the residue should be sold at the same rate, the whole aggregate will exceed TWO HUNDRED MILLIONS of dollars. If _Virginia and the South_ see fit to adopt any proposition to _relieve_ themselves from the free people of color among them, they have my free consent that the _government_ shall pay _them_ any sum of money out of the proceeds which may be adequate for the purpose." Will you, Sir, please to point out the article of the agreement of 1787, which, while it restricts Congress from having any thing to do with slavery, sanctions an appropriation not exceeding two hundred millions of dollars, for the purpose of strengthening the inst.i.tution of slavery, by _relieving_ the slaveholders from the presence of free people of color, and forcibly transporting to any place in the world hundreds of thousands of native-born Americans, who have as good a const.i.tutional right to the pursuit of life, liberty, and happiness on their native soil, as Mr. Webster himself? Mr. Webster, it seems, now views the subject of negro colonization in precisely the same light that he did thirty years since, although his _intentions_ on this, as on various other points, have undergone marvellous changes. We learn from a Ma.s.sachusetts paper (_Congregationalist_, 6 July, 1849), that this gentleman was in 1822 appointed by a public meeting to draft a const.i.tution for the State Colonization Society. After considerable discussion in the committee he rose and said, "I must leave. I understand the whole project. It is a scheme of the slaveholders to get rid of their free negroes. I will have nothing to do with it."

And how, Sir, as a member of Congress, have _you_ fulfilled this agreement to have nothing to do with slavery? Not only have you required "good citizens," when commanded, to hunt and catch slaves, but you have even fixed a money value on every slave. If a master fails to recover his fugitive slave through the agency, "direct or indirect," of any citizen, you give him an action for damages. In all other cases of trespa.s.s, the damages sustained by the plaintiff are a.s.sessed by a jury according to the evidence. You kindly save the master the trouble of proving the value of his lost property, and give him out of the pockets of the defendant $1,000, no matter whether the slave was sick or well, young or old. If a woman escapes with a child at the breast, the master is to have $2,000! Recollect, Sir, this is for _damages_ to the slaveholder; the trespa.s.ser is to pay to the government, which was to have nothing to do with slavery, another thousand dollars, and to be incarcerated six months. Either, Sir, you have wholly mistaken the nature of the "agreement," or the slaveholders, through the aid of their Northern auxiliaries, have, in defiance of the agreement, rendered the Federal government a mighty engine in protecting, extending, and perpetuating the stupendous iniquity of human bondage.

Your first excuse for voting for the recent slave-catching law, after relying on your "const.i.tutional obligation," is, that it is "_practically more favorable to the fugitive than the law of 1793_"!!!

The Southern lawyers, then, who drafted the bill, were a set of blunderers, and your const.i.tuents are blockheads for blaming you for legislating against human rights, when, in fact, you were loosening the bonds of the oppressed, and facilitating escape from the prison-house.

Your a.s.sertion may well excite astonishment at the South as well as the North, till your _proof_ is known, and then, indeed, astonishment will be exchanged for ridicule. You tell us, "the _evidence_ of such an a.s.sertion may be found in the fact, that by the old law every magistrate in Ma.s.sachusetts, amounting to several hundreds, and so in the other States, were authorized and required to cause the arrest of any fugitive, examine into his case, and deliver him to the claimant, if he was proved to be a slave; while under the new law that power is _limited_ to the justices of the United States' courts, and to the commissioners appointed by them, not exceeding, perhaps, on an average, six or eight persons in each State." So it seems the slave-catchers had formerly no difficulty in finding a magistrate among hundreds to aid them, but that now, before they hunt a slave, they must hunt and catch a United States judge, or a commissioner of six or eight in a whole State.

Truly a hard case, and yet the slaveholders themselves set the very trap in which they have been caught, and thus it is that, through their folly, and your generosity in not pointing out to them the blunder they were committing, the new law is more favorable to the fugitive than the old one. Surely, Sir, it could not have been more perilous to the young West Indian judge to meddle with "reasons," than it is for you. Either, Sir, you voted for the law without reading it, or you have forgotten its provision. Be a.s.sured, the Southern lawyers were as well acquainted as yourself with the fact, that a few individuals, termed "commissioners,"

had been appointed by the United States courts to perform certain ministerial acts; and that, as these men were now to be promoted to the office of slave-catching judges, they would be wholly inadequate in number to lend efficient aid to the hunters of men. Hence, they inserted in the third section of the bill, the following enactment, which has strangely escaped your recollection, viz.:--"And it is further enacted, that the Circuit Courts of the United States, and the Superior Courts of _each_ organized Territory of the United States, SHALL from time to time ENLARGE THE NUMBER OF COMMISSIONERS with a view to afford reasonable facilities to reclaim fugitives from labor, and to the prompt discharge of the duties imposed by this act." So that, instead of six or eight commissioners in a State, we are to have as many hundreds, if needed.

Nor is this all. By the second section, the power possessed by the Circuit Courts to appoint commissioners is for the first time conferred on the _Territorial_ courts, so that there shall be no lack of slave-catching judges in Oregon, Utah, and New Mexico. Instead of your six or eight commissioners in a State, your law contemplates that there shall be one or more in _each county_; for the fifth section provides, that, "the better to enable the said commissioners to execute their duties faithfully and efficiently, ... they are hereby authorized and empowered, within their _counties respectively_," to appoint one or more persons to execute their warrants. So it seems we are to have an unlimited number of judges and executioners. These executioners, expressly appointed to catch slaves, and of course among the most worthless and degraded of the community, are one and all invested with the power of a high sheriff to call out the _posse comitatus_, not merely in his own county, but in every hamlet in the State, and require "good citizens," under pain of fine and imprisonment, to join him in his execrable hunt. Really, Sir, your "evidence" that the new law is more favorable to the fugitive than the old one falls short of demonstration.

You thus apologize for not giving the alleged fugitive a trial by jury.

"There was no more trial by jury provided for under the old law than under the new law. The claim of a jury trial is entirely _new_; never thought of till modern discussions of the subject begun. For fifty-seven years our fathers and we have been living under the laws which provided no such thing, and now one which makes no such provision is denounced in unmeasured terms as cruel and inhuman. Where have we all been living for half a century?" Surely, Sir, it is a most logical reason for not changing a wicked law, that it has been in force for fifty-seven years.

Strange that the legislators of Ma.s.sachusetts did not perceive the force of this reasoning when they abolished the laws for hanging witches and whipping Quakers. Permit me, Sir, to ask, Where had _you_ been living when _you_ declared it to be the _duty_ of Congress to give the fugitive a trial by jury, although for fifty-seven years such a trial had been denied him? You probably forgot, Sir, when giving the above "reason,"

that, not long before you took your seat in Congress, you had, as a member of the Ma.s.sachusetts Legislature, voted for the following resolution, viz.:--"We hold it to be the duty of that body [Congress] to pa.s.s such laws only in regard thereto as will be maintained by the public sentiment of the free States, where such laws are to be enforced, and which shall especially secure all persons, whose surrender may be claimed as having escaped from labor and service in other States, the right of having the validity of such claim determined by a jury in the State where such claim is made." So it seems that, while in Boston, you esteemed it the _especial duty_ of Congress to grant the fugitive a trial by jury, but that in the atmosphere of Was.h.i.+ngton you acquired new views of moral philosophy.

Suffer me, Sir, also to inquire, Where had Mr. Webster been "living for half a century," when, on the 3d of last June, he introduced into the Senate a bill amendatory of the act of 1793, granting the alleged fugitive a trial by jury whenever he shall make oath that he is not the slave of the claimant?

Another of your "reasons" is, that your law does _not_ suspend the _habeas corpus_, and in proof of its innocence in this respect, you refer to the opinion of "legal authority of the highest kind," viz. Mr.

Crittenden, of Kentucky. It is very true that the words _habeas corpus_ are omitted in your law, as the word _slave_ is in the Const.i.tution, but in neither case is the omission of any practical importance. You must be aware, Sir, that whenever a person is in the custody of another, if sufficient ground be shown to render it probable that the custody is illegal, the writ is granted as a matter of right. But why is it granted? That the court may at its discretion, according to circ.u.mstances, remand or discharge the prisoner. Take away from the court the discretionary power to discharge, and the writ is rendered an idle form. Your law, you say, does not suspend the _habeas corpus_; it is guiltless of such an enormity. A man who is carrying off one of our citizens in chains, may indeed be served with the writ, and he brings his prisoner before the court, and he produces a paper for which he paid $10, and reads from your law, that this paper, called a certificate, "shall be conclusive," and "shall prevent all molestation of said person or persons by any _process_ issued by any court, judge, or magistrate, or other person whomsoever." It is because the word _process_, instead of _habeas corpus_, is used, that your law does not suspend the writ of freedom! In vain may the prisoner plead that he is not the person mentioned in the certificate; in vain may he offer to show that the certificate is a forgery; in vain may he urge that the man who signed the certificate was not a commissioner. The little piece of paper costing ten dollars is to save the slave-catcher from "all molestation,"

not because the writ of _habeas corpus_ is suspended,--O, no! but in consequence of the words "any process"!

You refer to two objections, which you say are made to your law, and endeavour to refute them; viz. the onerous obligations imposed upon the marshal, and the penalties attached to an attempt "to a.s.sist in the rescue of the slave after he has been proved to be such." You have evinced your discretion in confining yourself to only four objections made to your law; viz. the denial of a jury trial, the suspension of the _habeas corpus_, the duties of the marshal, and the penalties imposed on an attempt to rescue the slave _after_ judgment. With what success, and with what "reasons," you have combated the first two has already been seen. As to the last two, they scarcely merit an answer, and hence you have selected them. If the obligations of the marshal are onerous, he has voluntarily a.s.sumed them by accepting the office. If, in a civilized country, a man attempts forcibly to rescue a prisoner in the custody of the law, he must expect to be punished. There are many weighty objections to your law which you have not thought it expedient to notice. Permit me to supply your omission, and to tell you why your law is so intensely odious. And here let me again remind you of the true issue between you and the people. It is not now the const.i.tutional power of Congress under the decision of the Supreme Court to pa.s.s a law for the recovery of fugitive slaves,--this is conceded. The odium you have experienced, and against which you have appealed to the public, is caused by your having voted for a law which, in its details, violates the Const.i.tution, and outrages justice and humanity. Throughout your long and labored apology, you avoid grappling with these charges. You vindicate the denial of a jury trial only on the ground that it has been denied for fifty-seven years, and on the authority of Mr. Crittenden affirm that the _habeas corpus_ is not suspended; but you avoid the const.i.tutional and moral objections urged against your law.

By the Const.i.tution, fugitive slaves are to be restored to those, and those only, who are legally ent.i.tled to their services. The means of ascertaining whether a man is a slave, whether he has fled from his master, and whether the claimant is legally ent.i.tled to him, are not defined by the Const.i.tution. It is now intrusted to the discretion of Congress to specify these means, but of course that discretion ought to be exercised in accordance with the Const.i.tution, with justice, and with humanity. The complaint against you is, that you have voted for a law which outrages them all, and against this complaint you have failed to offer the shadow of a vindication.

A Virginian comes to Boston, and there seizes one of the inhabitants as his slave. The man claimed declares the claim to be false and fraudulent. Here, then, is an issue both of law and of fact between two men equally ent.i.tled to the protection of law; for the man claimed is on every presumption of law and justice to be regarded as free, till the contrary is proved. The issue between these two men is, I have said, one of fact and of law. Is the person seized the man he is said to be? This is a question of fact. Admitting his ident.i.ty, is he a slave, and, if so, does he belong to the claimant? These are both questions of law, resting upon facts to be proved. Those familiar with the reports of Southern courts know that the t.i.tle to slaves is a frequent matter of litigation, involving intricate questions respecting the validity of wills, the construction of deeds, the part.i.tion of estates, and the claims of creditors. By carrying a slave into a free State, the owner forfeits his t.i.tle to him while there, and cannot reclaim him; and hence the acts of the claimant himself may be involved in the issue. And now, Sir, I ask, have you ever known, or can you conceive of, any issue at law respecting the t.i.tle to property so awfully momentous to a defendant as the one we are considering? Were your son or daughter the defendant in such an issue, would you not rejoice to purchase a favorable judgment by the contribution of the last cent of your great wealth? Let us, then, proceed to inquire what provision _you_, in the fear of G.o.d and the love of justice and humanity, have made for the trial of this tremendous issue,--an issue on the result of which all the hopes of a fellow-man for the life that is, and for that which is to come, are suspended.

In the first place, What is the pecuniary value of the plaintiff's claim to _himself_?--for it would be an insult to humanity to estimate in dollars and cents the blessings of liberty and of the conjugal and parental relations to the unhappy defendant. You have yourself fixed the value of the plaintiff's claim at _one thousand dollars_. So far, then, the issue is, by your own showing, within the const.i.tutional guarantee of trial by jury in all suits at common law where the matter in controversy is of the value of _twenty_ dollars. But is the claim made by the plaintiff "a suit at common law"? What is a _suit_? The Supreme Court thus answers the question:--"We understand it [a suit] to be the prosecution or pursuit of some _claim_, demand, or request. In law language, it is the prosecution of some demand in a court of justice."

(6 _Wheaton_, 407.)

It seems, then, that the Virginian, in claiming an inhabitant of Boston as his slave, in fact brings _a suit_ against him for services due worth one thousand dollars. Now remember, Sir, the fugitive is not to be delivered up, as a ma.s.s of flesh, or inanimate matter, belonging to the claimant, but as a debtor, in the phraseology of your own law, "_owing_ service or labor." The suit is brought for service or labor _due_, and the Const.i.tution provides that the person so owing service or labor shall be delivered to him to whom the same is "_due_." And now, is this suit for service due "a suit at _common law_"? Again let the Supreme Court answer. "The phrase _common law_, found in this clause [the clause guaranteeing a jury trial], is used in contradistinction to equity and admiralty and maritime jurisdiction. It is well known, that, in civil causes in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases, to inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By _common law_, they meant what the Const.i.tution denominated, in the third article, 'law'; not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered.... In a just sense, the amendment, then, may be construed to embrace _all suits_ which are not of equity and admiralty jurisdiction, _whatever may be the peculiar form_ which they may a.s.sume to settle legal rights." (3 _Peters_, 446.)

If there be meaning in words, these authorities settle the case, and your law is in palpable violation of the amendment to the Const.i.tution securing a trial by jury in suits at common law where the matter in controversy exceeds twenty dollars in value. Think not, Sir, that I am misrepresenting the Supreme Court. I know well that the _dicta_ I have quoted have reference to _white_ men, and that they have been virtually set aside in decisions respecting black men. I well know, that, in our model republic, law and justice and morality are all cutaneous. But admitting that the Supreme Court have stultified themselves, and virtually denied, that, where a suit was brought for the services of a _black_ man, the Const.i.tution required a jury trial, recollect, Sir, that not in one single instance has the court decided that the Const.i.tution _prohibited_ such a trial. But if not prohibited, then Congress are permitted to accord such a trial, and _both you and Mr.

Webster have declared that Congress had a right to grant such a trial, and ought to grant it_. In voting, therefore, for a law denying such a trial, you made a voluntary surrender to the slaveholder of the security which such a trial would have afforded to mult.i.tudes of your poor, ignorant, oppressed fellow-men. For this act of cruelty and injustice, committed against your own late conviction of duty, what is your justification? Why, that the blacks had been already deprived of the right of trial by jury fifty-seven years!

Let us now see what tribunal you have subst.i.tuted for a jury in the trial of one of the most momentous issues that can engage the attention of a court of justice. You have provided for the appointment of an indefinite number of judges, each of whom is to have exclusive jurisdiction of these issues, and from whose judgment there is to be no appeal. The Const.i.tution declares, "The judges, both of the Supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." These judges are appointed by the Senate, on the nomination of the President.

Your herd of judges, called commissioners, are appointed by the courts, and hold office during pleasure, and instead of receiving a salary, are rewarded by a rule the infamy of which, it is believed, belongs to your law exclusively,--a rule which doubles their compensation whenever they decide in favor of the rich plaintiff, and _against_ the poor and friendless defendant. But perhaps you will deny that these men are judges; for, if judges, their appointment is palpably unconst.i.tutional.

Let us hear the Supreme Court, at a time when it was deemed expedient to maintain that the persons who executed the law of 1793 were _judges_.

"It is plain, that, where a claim is made by the owner out of possession for the delivery of a slave, it must be made, if made at all, _against some other person_; and inasmuch as the right is a right of property, capable of being recognized and a.s.serted by proceedings _before a court of justice between parties adverse to each other_, it const.i.tutes, in the strictest sense, a _controversy_ between parties, and a case arising under the Const.i.tution of the United States, within the express delegation of judicial power given by that instrument." (16 _Peters_, 616.) Hence your commissioners are, in the _strictest sense_, judges, exercising "judicial power" delegated by the Const.i.tution.

You p.r.o.nounce Mr. Crittenden "legal authority of the highest kind." This legal authority understands the sixth section of your law as providing that each commissioner "shall have judicial power and jurisdiction to hear, examine, and decide the case in a summary manner." Now, if a man, having judicial power and jurisdiction to decide controversies between parties adverse to each other, in controversies arising under the Const.i.tution and within the express delegation of judicial power given by that instrument, is not a judge, do tell us who is one. Once more, Sir, Mr. Crittenden says, "The legal authority of every tribunal of exclusive jurisdiction, where no appeal lies, is of necessity conclusive upon every tribunal; and therefore the judgment of the tribunal created by this act is conclusive upon all other tribunals." So your commissioner is not only a judge, but he const.i.tutes a tribunal of exclusive jurisdiction, and his judgment is binding even upon the Supreme Court of the United States. And yet, Sir, you must deny that this omnipotent commissioner is a judge, or you must admit, that, in the mode of his appointment, you have flagrantly violated the Const.i.tution of your country.