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 the Senator from Virginia [Mr. Hunter], on the recommendation of an important committee 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 offer proposes to remove one chief occasion of these extraordinary expenses. Beyond all controversy or cavil it is strictly in order. And now, at last, among these final crowded days of our duties here, but at this 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 early Greece vainly sought to secure permanence for his imperfect institutions by providing that the citizen who at any time attempted their repeal or alteration should appear in the public assembly with a halter about his neck, ready to be drawn, if his proposition failed. A tyrannical spirit among us, in unconscious imitation of this antique and discarded barbarism, seeks to surround an offensive institution with 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 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 wrong and woe 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 it is in every respect sectional, and in no respect national,—that it is always and everywhere creature and dependant of the States, and never anywhere creature or dependant 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, and cruelty of the late intolerable enactment 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 can 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 these 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 personal consequences. The favor and good-will of my fellow-citizens, of my brethren of the Senate, Sir, grateful to me as they justly are, I am ready, if required, to sacrifice. Whatever I am or may be I freely offer to this cause.

Here allow, for one moment, a reference 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 see no narrow advantage 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 shall hold fast always 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. Here, Sir, I 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 than this: "Here lies one who, without the honors or emoluments of public station, did something for his fellow-men." From such simple aspirations I was taken away by the free choice of my native Commonwealth, and placed at 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 to-day.

Rejoicing in my independence, and claiming nothing from party ties, I throw myself upon the candor and magnanimity of the Senate. I ask your attention; 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; 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"[103]—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 with 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, by formal resolutions, in recent conventions at Baltimore, 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 impose 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 it pretends to forbid. Their very 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 profess to banish from public attention, openly by your invitation 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 any 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 any predecessor. The laws of the Medes and Persians are said proverbially to have been unalterable; but they stand forth in history as a single example where the true principles of all law have been so irrationally defied.

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 not 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 its existing provisions—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 rule[104] 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 despotisms 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 the United States, representing a free Commonwealth, 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 according to conscience, above all liberties":[105] these are glowing words, flashed from the soul of John Milton in his struggles with English tyranny. With equal fervor they should be echoed now by every American not already a slave.

But, Sir, this effort is impotent as tyrannical. Convictions of the heart cannot be repressed. Utterances of conscience must be heard. They break forth with irrepressible might. As well attempt to 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 against Slavery is from the Everlasting Arm. Even now it is gathering its forces, soon to be confessed everywhere. It may not be felt yet 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 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 pride 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, are made to share this same epithet. 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 at heart, is called Sectionalism. These terms, now belonging to the commonplaces of political speech, are adopted and misapplied by most persons without reflection. But here is the power of Slavery. According to a curious tradition of the French language, Louis the Fourteenth, the Grand Monarch, by an accidental error of speech, among supple courtiers, changed the gender of a noun. But Slavery does more. It changes word for word. It teaches men to say national instead of sectional, and sectional instead of national.

Slavery national! Sir, this is a mistake and absurdity, fit to have 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 a gem 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, while 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 principal heads: first, the true relations of the National Government to Slavery, wherein it will appear that there is no national fountain from 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 service, 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 are readily apparent, if we do not neglect well-established principles.

If Slavery be national, if there be 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 Sommersett, "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."[106] 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 only exist, through municipal regulations."[107]

And another slaveholding tribunal—the Court of Appeals 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 Common Law."[108]

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 victim of the fruits of labor,—which substitutes concubinage for marriage,—which abrogates the relation of parent and child,—which, by 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 state 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 phrase. It must be declared by unambiguous words, incapable of a double sense.

Slavery, I 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 footstep, beyond express letter, 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 word of the Constitution. Each and all make Slavery impossible as a national institution. They shut off 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 is first seen 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 tranquillity, 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 to the Preamble in importance 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, Gouverneur 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 States where it prevailed."[109] These positive words, in harmony with other things from the same quarter, show a vehement determination that Slavery should not be national.

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. Oliver Ellsworth, of Connecticut, said: "The morality or wisdom of Slavery are considerations belonging to the States themselves."[110] According to him, Slavery was sectional. Elbridge Gerry, of Massachusetts, "thought we had nothing to do with the conduct of the States as to slaves, but ought to be careful not to give any sanction to it."[111] According to him, Slavery is sectional, and he would not make it national. Roger Sherman, of Connecticut, "was opposed to a tax on slaves imported, as making the matter worse, because it implied they were property."[112] He would not have Slavery national. After debate, the subject was referred to a committee of eleven, who reported a substitute, authorizing "a tax or duty on such migration or importation, at a rate not exceeding the average of the duties laid on imports."[113] 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."[114] Mr. Gorham "thought that Mr. Sherman should consider the duty, not as implying that slaves are property, but as a discouragement to the importation of them."[115] Mr. Madison, in mild juridical phrase, "thought it wrong to admit in the Constitution the idea that there could be property in men."[116] 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."[117]

The difficulty seemed then to be removed, and the whole clause was adopted. This record demonstrates that the word "persons" was employed to show that slaves, everywhere under the Constitution, are 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 "thought it wrong to admit in the Constitution the idea that there could be property in men,"—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.

The evidence still accumulates. At a later day in the proceedings of the Convention, as if to set the seal upon the solemn determination to have no sanction of Slavery in the Constitution, the word "servitude," which appeared in the clause on the apportionment of representatives and taxes was struck out, and the word "service" inserted. This was done by unanimous vote, on the motion of Mr. Randolph, of Virginia; and the reason assigned for this substitution, according to Mr. Madison, in his authentic report of the debate, was, that "the former was thought to express the condition of slaves, and the latter the obligations of free persons."[118] With such care was Slavery excluded from the Constitution.

Nor is this all. In the 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 the people of this Commonwealth; and I ardently hope that 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 of other men's sins? I think neither of them."[119]

Afterwards, in the first Congress under the Constitution, on a motion, much debated, for a duty on the importation of slaves, the same Roger Sherman, who in the National Convention 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 a species of property; it speaks of them as persons."[120]

Thus distinctly and constantly, from the very lips of the framers of the Constitution, we learn the falsehood of 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 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 these 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 States, 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 contended were the rights of human nature. By the blessing of the Author of these rights on the means exerted for their defence, they have prevailed against all opposition, and FORM THE BASIS of thirteen independent States."[121] 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, entering into all the national legislation and spreading through all its parts. 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 must be construed in favor of Liberty. This rule, which commends itself to the natural reason, is sustained by time-honored maxims of early jurisprudence. Blackstone aptly expresses it, when he says that "the law is always ready to catch at anything in favor of Liberty."[122] The rule is repeated in various forms. Favores ampliandi sunt; odia restringenda: "Favors are to be amplified; hateful things to be restrained." Lex AngliÆ est lex misericordiÆ: "The law of England is a law of mercy." AngliÆ jura in omni 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 et 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, Freedom, again I say, is national.[123]

Fifthly. 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 was 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."[124] 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."[125]

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 was accomplished. The feeble Government of the Confederation passed away. The Constitution, slowly matured in a National Convention, discussed before the people, defended by masterly pens, was adopted. The Thirteen States stood forth a Nation, where 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 commenced its session,—to assume his place as elected Chief of the Republic. On the 30th 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 ways, and eagerly watching this great espousal,

The oath was administered by the Chancellor of New York. At such time, and in such presence, beneath the unveiled 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 new occasion, floated the national flag, with its stripes of red and white, its stars on a field of blue. As his patriot eye rested upon the glowing ensign, what currents must 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, the thirteen stripes had been first unfurled by him, as the emblem of 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, to the national scandal, was still 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 Northwest, it was already made impossible, by the Ordinance of Freedom, even before the adoption of the Constitution. The District of Columbia, with its Fatal Dowry, was not yet acquired.

The government thus organized was Antislavery in character. Washington was a slaveholder, 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 declared, by letter, that it was "among his first wishes to see some plan adopted by which Slavery in this country might be abolished by law";[127] and again, in another letter, that, in support of any legislative measure for the abolition of Slavery, his suffrage should "never be wanting";[128] and still further, in conversation with a distinguished European Abolitionist, a travelling propagandist of Freedom, Brissot de Warville, recently welcomed to Mount Vernon, he openly announced, that, to promote this object in Virginia, "he desired the formation of a Society, and that he would second it."[129] 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,"[130] and whose immitigable hostility to this wrong is immortal in his descendants. There also was a companion in arms and attached friend, of beautiful genius, the yet youthful and "incomparable" Hamilton,—fit companion in early glories and fame with that darling of English history, Sir Philip Sidney, to whom the latter epithet has been reserved,—who, as member of the Abolition Society of New York, had recently united in a solemn petition for those who, though "free by the laws of God, are held in Slavery by the laws of this State."[131] There, too, was a noble spirit, of spotless virtue, the ornament of human nature, who, like the sun, ever held an unerring course,—John Jay. Filling the important post of Secretary for Foreign Affairs under the Confederation, he found time to organize the "Society for Promoting the Manumission of Slaves" in 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. "Till America comes into this measure," he wrote, "her prayers to Heaven for liberty will be impious. This is a strong expression, but it is just. Were I in your Legislature, I would prepare a bill for the purpose with great care, and I would never cease moving it till it became a law or I ceased to be a member."[132] Such words as these, fitly coming from our leaders, belong to the true glories of the country:—

They stood 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 influence upon master 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.[133] 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."[134] At this very period, in the Legislature of Maryland, on a bill for the relief of oppressed slaves, a young man, afterwards by consummate learning and forensic powers acknowledged head of the American bar, William Pinkney, in a speech of earnest, truthful eloquence,—better for his memory than even his professional fame,—branded Slavery as "iniquitous and most dishonorable," "founded in a disgraceful traffic," "its continuance as shameful as 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 for a single hour."[135]

Thus at that time spoke the Nation. The Church also joined its voice. And here, amidst diversities of religious faith, it is instructive to observe the general accord. 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, had become an organized band of Abolitionists, penetrated by the conviction that it was unlawful to hold a fellow-man in bondage. 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 the bodies and souls of men, women, or children, with an intention to enslave them."[136] The words of their great apostle, John Wesley, were constantly repeated. On the eve of the National Convention, that burning tract was circulated in which he exposes American Slavery as "vilest" of the world,—"such slavery as is not found among the Turks at Algiers"; and after declaring "Liberty the right 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, nor 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 partaker of human nature."[137] At the same time the Presbyterians, a powerful religious body, inspired by the principles of John Calvin, in more moderate language, but by a public act, recorded their judgment, recommending "to all their people to use the most prudent measures, consistent with the interest and the state of civil society in the counties where they live, to procure eventually the final abolition of Slavery in America."[138] The Congregationalists of New England, also nurtured in 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 Colonies to emancipate all their African slaves, and declaring that Slavery is "in every instance wrong, unrighteousness, and oppression,—a very great and crying sin,—there being nothing of the kind equal to it on the face of the earth."[139] 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."[140]

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 already had abolished Slavery. Dartmouth College, by one of its learned Professors, claimed for the slaves "an equal standing, in point of privileges, with the whites."[141] Yale College, by its President, the eminent divine, Ezra Stiles, became the head of the Abolition Society of Connecticut.[142] And the University of William and Mary, in Virginia, at this very time testified its sympathy with the cause by conferring upon Granville Sharp, the acknowledged chief of British Abolitionists, the honorary degree of Doctor of Laws.[143]

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,[144]—Jefferson, in his "Notes on Virginia,"—Barlow, in his heroic verse,—Rush, in a work which inspired the praise of Clarkson,[145]—the ingenious author of the "Algerine Captive," the earliest American novel, and, though now but little known, one of the earliest American books republished in London,—were all moved by the contemplation of Slavery. "If our fellow-citizens in the Southern States are deaf to the pleadings of Nature," exclaims the last earnestly, "I will conjure them, for the sake of consistency, to cease to deprive their fellow-creatures of freedom, which their writers, their orators, representatives, senators, and even their Constitutions of Government, have declared to be the unalienable birthright of man."[146] 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 testimony of the times:—

Such, Sir, at the adoption of the Constitution and 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 transitory; and by many it was supposed that they would disappear together. As the oracles 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.

The earliest Congress under the Constitution attests this mood. One of its first acts was to accept the Ordinance of Freedom for the Northwestern Territory, thus ratifying the prohibition of Slavery in all existing territory. It is impossible to exaggerate the importance of this act as a national landmark, especially when we consider that on the list of those who sanctioned it were men fresh from the National Convention, and therefore familiar with the Constitution which it framed. The same Congress entertained the question of Slavery in other forms,—sometimes on memorials duly presented, and then again in debate. Virginia was heard by her Abolition Society denouncing Slavery as "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."[148] There was another petitioner, whose illustrious services at home and abroad entitled him to speak with authority rather than with prayer. It was none other than Benjamin Franklin. After a long life of various effort,—representing his country in England during the controversies that preceded the Revolution,—returning to take his great part in the Declaration of Independence,—then representing his country in its European negotiations,—then again returning to take his great part in the formation of the National Constitution, while all the time his life was elevated by philosophy and the peculiar renown he had won,—this Apostle of Liberty, recognized as such in the two hemispheres, whose name was signed to the Declaration of Independence, was signed to the Treaty of Alliance with France, was signed to the Treaty of Independence with Great Britain, was signed to the National Constitution, now set this same name to another instrument, a simple petition to Congress. At the age of eighty-four, venerable with years, and with all the honors of philosophy, diplomacy, and statesmanship,—a triple crown never before enjoyed,—the patriot sage comes forward, as President of the Abolition Society of Pennsylvania, and entreats Congress "that it 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 then again, in concluding words, "that it would step to the very verge of the power vested in it for discouraging every species of traffic in the persons of our fellow-men."[149] Shortly after this prayer the petitioner descended to his tomb, from which he still prays that Congress will step to the very verge of the power vested in it to DISCOURAGE Slavery; and this prayer, in simple words, proclaims the National policy of the Fathers. Not encouragement, but discouragement of Slavery,—not its nationalization, but its denationalization, 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 had been merely sectional, was now constituted national. Our fathers did not say, with the apostate angel, "Evil, be thou my good!" In different spirit they cried out to Slavery, "Get thee behind me, Satan!"

There is yet another link. 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."[150]

New Hampshire, New York, Rhode Island, 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 the proper number of States, became part of the Constitution as the Tenth 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 of the Constitution as laid on this ground."[151] And Samuel Adams, ever watchful for Freedom, said: "It removes a doubt which many have entertained respecting this matter, and gives assurance, that, if any law made by the federal Government shall be extended beyond the power granted by the proposed Constitution, and inconsistent with the Constitution of this State, it will be an error, and adjudged by the courts of law to be void."[152]

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 the 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 spring 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 no national favor, existed nowhere on the national territory, beneath the national flag, but was openly condemned by Nation, Church, Colleges, and Literature of the time,—and, finally, that, according to an Amendment of the Constitution, the National Government can exercise only powers delegated to it, among which 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.

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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 fitly stands 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 great Ægis 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 within the national jurisdiction, and I confidently claim for him this protection, no matter what his condition or race or color. 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 Virginia, North Carolina, and Rhode Island, it was restricted 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."[153] In rejecting this limitation, the authors of the Amendment revealed their purpose, that no person, under the National Government, of whatever character, should be deprived of liberty without due process of law,—that is, without due presentment, indictment, or other judicial proceeding. But this Amendment is nothing less than an express guaranty of Personal Liberty, and an express prohibition of 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 authoritative rules of interpretation, does not falsify indisputable facts of history, does not affront the public opinion in which it had its birth, and does not dishonor the memory of the Fathers. And yet politicians of the hour undertake to place these convictions under formal ban. The generous sentiments which filled the early patriots, and 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 not more than three hundred and fifty thousand, according to the recent census, have succeeded in dictating the policy of the National Government, and have written Slavery on its front. The change, which began in the desire for wealth, was aggravated by the desire for political predominance.[154] Through Slavery the cotton crop increased, with its enriching gains; through Slavery States became part of the Slave Power. And now an arrogant and unrelenting ostracism is applied, not only to all who express themselves against Slavery, but to every man unwilling to be its menial. 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 it occupied on the auspicious morning of its first organization by Washington,—

that the sentiments of the Fathers may again prevail with our rulers, and 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 boasted that the air of England was too pure for a slave to breathe,[156] 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.[157] England was already a Slave State. The following advertisement, copied from a London newspaper, The Public Advertiser, of November 22, 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. Inquire of her owner at the Angel Inn, behind St. Clement's Church, in the Strand."

At last, in 1772, only three years after this advertisement, the single question of the legality of Slavery was presented to Lord Mansfield, on a writ of Habeas Corpus. A poor negro, named Sommersett, 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 Sharp, he was restored to health, when his unfeeling and avaricious master again claimed him as bondman. The claim was repelled. After elaborate and protracted discussion in Westminster Hall, marked by rarest 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 fourteen thousand persons, at that time held as slaves, and breathing English air,—four times as many as are now found in this national metropolis,—stepped forth in the happiness and dignity of freemen.

With this guiding example I cannot 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 RENDITION OF FUGITIVES FROM SERVICE, embracing an examination of this provision in the Constitution, and especially of the recent Act of Congress in pursuance thereof. As I begin this discussion, let me bespeak anew your candor. Not in prejudice, but in the light of history and of reason, we must 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 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 servants; and there is no evidence in any quarter, until after the National Convention, of 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 is 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 one 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 are allowed Representatives according to the whole number of free persons and "three fifths of all other persons,"[158] 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, not to be mentioned without shame. It was that hateful bargain by which Congress was restrained until 1808 from the prohibition of the foreign slave-trade, thus securing, down to that period, toleration for crime. This was pertinaciously pressed by the South, even to the extent of absolute restriction on Congress. John Rutledge said: "If the Convention thinks that North Carolina, South Carolina, and Georgia will ever agree to the Plan [the National 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, if it prohibits the slave-trade." Charles Cotesworth Pinckney "thought himself bound to declare candidly, that he did not think South Carolina would stop her importations of slaves in any short time."[159] The effrontery of the slave-masters 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, described the compromise. "I found," he said, "the Eastern States, 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."[160] 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 service 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 been 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 tardily, at a late period of the Convention, and adopted with very little and most casual discussion. A few facts show how utterly unfounded are 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 the same day, Edmund Randolph, of slaveholding Virginia, laid before the Convention a series of fifteen resolutions, containing his plan for the establishment of a New National Government. Here was no allusion to fugitive slaves.

Also, on the same day, Charles Pinckney, of slaveholding South Carolina, laid before the Convention what was 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 the 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 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 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 July, twenty-three resolutions, already adopted on different days in the Convention, were referred to a "Committee of Detail," for reduction 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 is 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. "General [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, the learned jurist and excellent man, 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 withdrawn,—never more to be renewed. The article for the surrender of criminals was then unanimously adopted.[161] On the next day, 29th August, profiting by the suggestions already made, Mr. Butler moved a proposition,—substantially like that now found in the Constitution,—for the surrender, not of "fugitive slaves," as originally proposed, but simply of "persons bound to service or labor," which, without debate or opposition of any kind, was unanimously adopted.[162]

Here, palpably, was no labor of compromise, no adjustment of conflicting interests,—nor even any expression of solicitude. The clause finally adopted was vague and faint as the original suggestion. In its natural import it is not applicable to slaves. If supposed by some to be applicable, it is clear that it was supposed by others to be inapplicable. It is now insisted that the term "persons bound to service," or "held to service," as expressed in the final revision, is the equivalent or synonym for "slaves." This interpretation is rebuked by an incident to which reference has been already made, but which will bear repetition. On the 13th September—a little more than a fortnight after the clause was adopted, and when, if deemed to be of any significance, it could not have been forgotten—the very word "service" came under debate, and received a fixed meaning. It was unanimously adopted as a substitute for "servitude" in another part of the Constitution, for the reason that it expressed "the obligations of free persons," while the other expressed "the condition of slaves." In the face of this authentic evidence, reported by Mr. Madison, it is difficult to see how the term "persons held to service" can be deemed to express anything beyond "the obligations of free persons." Thus, in the light of calm inquiry, does this exaggerated clause lose its importance.

The provision, showing itself thus tardily, and so slightly regarded in the National Convention, was neglected in much of the contemporaneous discussion 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 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 Conventions it was disregarded. Massachusetts, while exhibiting peculiar sensitiveness at any responsibility for Slavery, seemed to view it with unconcern. One of her leading statesmen, General Heath, in the debates of the State Convention, strenuously asserted, that, in ratifying the Constitution, the people of Massachusetts "would do nothing to hold the blacks in slavery." "The Federalist,"[163] 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 concerning fugitives from service; but it fails to recognize the latter among the means of promoting "harmony and proper intercourse"; nor does its triumvirate of authors anywhere allude to the provision.

The indifference thus far attending this subject still continued. The earliest Act of Congress, passed in 1793, drew little attention. It was not suggested originally by any difficulty or anxiety touching fugitives from service, nor is there any contemporary record, in debate or otherwise, showing that any special importance was attached to its provisions in this regard. The attention of Congress was directed to fugitives from justice, and, with little deliberation, it undertook, in the same bill, to provide for both 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 it was successfully enforced 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 the State, on application for the surrender of an alleged slave, accompanied by documentary evidence, gloriously refused compliance, unless the master could show a Bill of Sale from the Almighty. 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. In the House of Representatives, on motion of Mr. Pindall, of Virginia, a committee was appointed to inquire into the expediency of "providing more effectually by law for reclaiming servants and slaves escaping from one State into another," and a bill reported by them to amend the Act of 1793, after consideration for several days in Committee of the Whole, was passed. In the Senate, after much attention and warm debate, it passed with amendments. But on return to the House for adoption of the amendments, it was dropped.[164] This effort, which, in the discussions of this subject, has been thus far 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 and harmony of the country.

At last, in 1850, we have another Act, passed by both Houses 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 it is drawn might challenge admiration, if exerted for a benevolent purpose; but in an 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 take part against this Act.

But I am to regard it now chiefly as an infringement of the Constitution. Here its outrages, flagrant as manifold, assume the deepest dye and broadest character only when we consider that by its language it is not restricted 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 proceeding. 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."

Whilst thus comprehensive in its provisions, and applicable to all, there is no safeguard of Human Freedom which the monster Act does not set at nought.

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 great question, not to one of the high tribunals of the land, but to the unaided judgment of a single petty magistrate.

It commits this great question to a magistrate appointed, not by the President with the consent of the Senate, but by the Court,—holding office, not during good behavior, but merely during the will of the Court,—and receiving, not a regular salary, but fees according to each individual case.

It authorizes judgment on ex parte evidence, by affidavit, 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 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.

The Constitution expressly secures the "free exercise of religion": but this Act visits with unrelenting penalties the faithful men and women who render to the fugitive that countenance, succor, and shelter which in their conscience "religion" requires; and thus is practical religion directly assailed. Plain commandments are broken; and are we not told that "whosoever shall break one of these least commandments, and shall teach men so, he shall be called the least in the kingdom of Heaven"?[165]

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 two chief radical objections to this Act, identical in principle with those triumphantly urged by our fathers against the British Stamp Act: first, that it is a 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 is beyond doubt.

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Here, at this stage, I encounter the difficulty, that these objections are already foreclosed by legislation of Congress and 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 been since in high quarters pronounced unconstitutional. If it erred as to the Bank, it may have erred also as to fugitives from service. But the Act itself 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 when 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), where is asserted the power of Congress. Without going into 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 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 which springs from the denial of Trial by Jury. This judgment was pronounced by Mr. Justice Story. From the interesting biography of the great jurist, recently published by his son, we learn that the question of Trial by Jury was not considered as before the Court; so that, in the estimation of the learned 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 that he should still consider it an open one."[166]

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 cover the whole ground of this Act, it ought not to control the coÖrdinate 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."[167]

With these authoritative words 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.

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(1.) 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 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 service.

The whole legislative power of Congress is derived from two distinct sources: first, from the general grant, attached to the long catalogue of powers, "to make all laws which shall be necessary and proper for 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 service.

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. If under its original provisions any doubt on this head could have existed, 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 more extended examination, in twofold light: first, in the history of the Convention, revealing the unmistakable 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 November, 1777, though containing no reference to fugitives from service, 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 place in the first reported draft of a Constitution, and 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 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 service. Charles Pinckney moved to commit it, 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." Amidst all these efforts to associate a power with this compact, it is clear that nobody supposed that any such already existed. This narrative places the views of the Convention 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."[168] The clause of compact with the power attached was then adopted, and is now 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 for not 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 service.

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 service, 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 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 the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.

"Section 4. The United States shall guaranty to every State in this Union a republican form of Government, and shall protect each of them against invasion, and, on application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence."

Here is the whole article, in its final form. 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 Territory. These are naturally grouped together, while the fourth section of this same article, which is distinct in 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 compacts, and two of which were confessedly simple compacts in the old Articles of Confederation, from which, unchanged in character, they were borrowed. The third is a twofold 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, having a reason for what they did, and understanding the language 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. Adding to the record compact an express grant of power, they testified not only their desire for such power in Congress, but their conviction that without such express grant it would not exist. But if express grant was necessary in this case, it was equally necessary in all the other cases. Expressum facit cessare tacitum. Especially, in view of its odious character, was it necessary in the case of fugitives from service. Abstaining from any such grant, and then grouping the bare compact with other similar compacts, separate from every grant of power, they testified their purpose most significantly. Not only do they decline all addition to the compact of any such power, 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, 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 naked compacts with which it was originally associated.

Thus the proceedings of the Convention show that the founders understood the necessity of powers in certain cases, and, on consideration, 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 fallen within the control of the States, leaving the Nation powerless to establish a uniform rule thereupon. Now, instead of the existing compact on fugitives from service, 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 a uniform rule for the surrender of fugitives from service throughout the United States. Then, of course, whenever Congress undertook to exercise the power, all State control of the subject would be superseded. The National Government would have been constituted, like Nimrod, the mighty 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 as 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 for 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 a tax on slaves imported, because it implied they were property,"—James Madison, who "thought it WRONG to admit in the Constitution the idea that there could be property in men,"—and Benjamin Franklin, who likened American slaveholders to Algerine corsairs. In the face of these unequivocal judgments, it is absurd to suppose that these eminent citizens consented unanimously to any provision by which the National Government, the creature of their hands, dedicated to Freedom, could become the most offensive agent 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, protracted through the uncertain days of the Confederation, and they desired a government which should be a true bond of Union and an efficient organ of national interests at home and abroad. But while fashioning this agency, they fully recognized the governments 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 within its wide orbit is supreme, the States move with equal supremacy in their own. But, from the necessity of the case, the 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 on the principle of unlimited submission to their General Government; but that by a compact, under the style and title of a Constitution for the United States and of 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 whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force."[169]

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 it has no "positive" support in the Constitution,—and that any interpretation inconsistent 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 to the spirit and letter of the Constitution, to claim for 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 in its more general aspects only, 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 possibly spring.

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 rights, and despoils his State of all power to protect him. It subjects him to the wretched chance 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 Eights 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 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 may return to plague the teacher. Compelling the National Government to stretch its Briarean arms into the 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.

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 Constitution, 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.

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(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 all the presumptions of law, all the leanings to 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 provision for the surrender of fugitives from service 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 service in the State from which he escaped. In the second place, he must "be delivered up on claim of the party to whom such service or labor may be due." These two facts, that he was held to service, and that his service 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 is made in the State where the fugitive is found; and, secondly, it restores to the claimant 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.

These proceedings determine on the one side the question of Property, and on the other the sacred question of Personal Liberty in its most transcendent form,—Liberty not merely 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, attaches Trial by Jury. One 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 proceeding 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 does not appear in the Constitution as first adopted, 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."[170] 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 a judge the sole power of deciding the right of property the master claims in his slave, 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 jury as well as 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."[171]

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 proceeding 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." Judgments of the Supreme Court cover 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 or pursuit 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 et al. (3 Peters, 447), while considering this very clause, the Court say: "By Common Law the framers of the Constitution meant ... 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 a just sense, the Amendment may well be construed to embrace all suits which are not of Equity and Admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights." Now, since the claim for a fugitive is not a suit in Equity or Admiralty, but a suit to settle what are called legal rights, it must 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 or 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 a pecuniary valuation.... We entertain no doubt of the jurisdiction of the Court."[172] 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 judgments of the highest tribunal, it appears, as in a diagram, that the right of Trial by Jury is secured to the fugitive from service.

This conclusion needs no additional authority; but it receives 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,"[173] carrying thither the knowledge of those vital principles of Freedom which were the boast of the British Constitution. Thus imbued, the earliest Continental Congress, in 1774, declared, "That the respective Colonies are entitled to the Common Law of England, and more especially to the great and inestimable privilege of being tried by their Peers of the Vicinage, according to the course of that law."[174] Amidst the troubles which heralded the Revolution, the Common Law was claimed as a birthright.

Now, although the Common Law may not be approached as a source of jurisdiction under the National Constitution,—and on this interesting topic I forbear to 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 limiting 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 what are Attainder, 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 and equity to which the judicial power of the United States is extended. These instances I adduce merely for example. Also in the same way we learn what 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 villenage. The slave was generally called a villein, though in the original Latin forms of judicial proceedings he was termed nativus, implying slavery by birth. The incidents of this condition are 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, Trial by Jury was necessarily attached. Blackstone, in his Commentaries, in words which must have been known to all the lawyers of the Convention, said of villeins: "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 chattels."[175] 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, "Our Year Books and Books of Entries are full of the forms used in pleading a title to villeins regardant."[176] 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 villein was either by seizure or by suing out a writ of Nativo Habendo, or Neifty, as it is sometimes called. If the lord seized, the villein's most effectual mode of recovering liberty was by the writ of Homine Replegiando, which had 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 the villenage, 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 villenage was denied, in which case the sheriff could not seize the villein, the lord was then to enter his plaint in the county court; and as the sheriff was not allowed to try the question of villenage 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."[177]

The authority of Mr. Hargrave is sufficient. But I mean to place this matter beyond all cavil. From the Digest of Lord Chief Baron Comyns, which at the adoption of the Constitution was among the classics of our jurisprudence, I derive another description of the remedy.

"If the lord claims an inheritance in his villein, 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 villein. But if the defendant say that he is a freeman, the sheriff cannot seize him, but the lord must remove the writ by Pone before the Justices in Eyre, or in C.B., where he must count upon it."[178]

An early writer of peculiar authority, Fitzherbert, in his Natura Brevium, on the writs of the Common Law, thus describes these proceedings.

"The writ de Nativo Habendo lieth for the lord who claimeth inheritance in any villein, when his villein is run from him, and is remaining within 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 unto the sheriff.... And the sheriff may seize the villein, and deliver him unto his lord, if the villein confess unto the sheriff that he is his villein; but if the villein 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 the villein say that he is a freeman, &c., then the sheriff ought not to seize him, but then the lord ought to sue a Pone to remove the plea before the Justices in the Common Pleas, or before the Justices in Eyre. But if the villein 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 proceed not upon the writ of Nativo Habendo till the Eyre of the Justices, or till the day of the plea be adjourned before the Justices, and that the lord ought not to seize the villein in the mean time."[179]

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 villeins who "ran away"; Hargrave of "fugitive villeins"; Comyns of a villein "who flies from his lord against his will"; and Fitzherbert of the proceedings of the lord "when his villein 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 writ 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, whereas they are free women, and ready to prove their liberty, F., claiming them to be his neifs 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 writ. Witness, &c."[180]

By these various proceedings, all ending in Trial by Jury, Personal Liberty was guarded, even in the unrefined and barbarous days of the early 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, Trial by Jury, in a suit at Common Law, before one of the high courts of the realm, was equally secured. In the case of seizure, the fugitive, reversing the proceedings, might institute process against his master, and appeal to a Court and Jury. In the case of process by the master, the watchful law secured to the 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 Convention, 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 authority, and at that time of constant professional study. Only a short time before, in the case of Sommersett, 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 juridical 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 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," recognized "among its old and settled proceedings." To question this, in the face of authentic principles and precedents, is preposterous. As well might it be questioned, that a writ 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 the 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 requirements of the Common Law, all such persons, when claimed by their masters, are entitled to 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 admonished to hasten on.

Opposing this Act as doubly unconstitutional from the want of power in Congress and from the denial of Trial by Jury, I find myself again encouraged by the example of our Revolutionary Fathers, in a case which is a landmark 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 Courts 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 day the Act was to take effect, 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 the friends of Liberty were summoned to hold themselves in readiness for her funeral. At New York, the obnoxious Act, headed "Folly of England and Ruin of America," was contemptuously hawked about the streets. Bodies of patriots were organized everywhere under the name of "Sons of Liberty." The merchants, inspired then by Liberty, resolved to import no more goods from England until the repeal of the Act. 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,"[181] but which soon found 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 a 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 offence 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 General Assembly with the power of making laws for its internal government and taxation; and this Charter has never yet been forfeited. The Parliament has a right to make all laws within the limits of their own constitution.... The people complain that the Act invests a single judge of the Admiralty with a 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 but by the oath of good and lawful men of the vicinage.... We deeply regret it that the Parliament has seen fit to pass such an act as the Stamp Act; we flatter ourselves that the hardships of it will shortly appear to them in such a point of light as shall induce them, in their wisdom, to repeal it; in the mean time we must beg your Excellency to excuse us from doing anything to assist in the execution of it."[182]

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 is welcomed by large and imperious numbers among us. Hutchinson, at that time Lieutenant-Governor and Chief-Justice of Massachusetts, wrote to Ministers in England: "The Stamp Act is received among us with as much decency as could be expected. It leaves no room for evasion, and will execute itself."[183] Like the Judges of our day, in charges to grand juries, he resolutely vindicated the Act, and admonished "the jurors and people" to obey.[184] Like Governors of our day, Bernard, in his speech to the Legislature of Massachusetts, demanded unreasoning submission. "I shall not," says this British Governor, "enter into any disquisition of the policy of the 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."[185] The military were against the people. A British major of artillery at New York exclaimed, in tones not unlike those now heard, "I will cram the stamps down their throats with the end of my sword!"[186] The elaborate answer of Massachusetts, a paper of historic grandeur, drawn by Samuel Adams, was pronounced "the ravings of a parcel of wild enthusiasts."[187]

Thus in those days spoke the partisans of the Stamp Act. But their weakness was soon manifest. In the face of an awakened community, where discussion has free scope, no men, though supported by office and wealth, can long maintain 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 was 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 in Town Meeting at Faneuil Hall, "having been read several times, and put paragraph by paragraph," the following rule of conduct was prescribed.

"We therefore think it our indispensable 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, unalienable rights of the people of this Province asserted and vindicated, and left upon the public records, that posterity may never have reason to charge the present times with the guilt of tamely giving them away."[188]

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 destruction of their country's most essential rights and liberties."[189]

As the opposition deepened, there was a natural tendency 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 24, 1766, to an Address from the inhabitants of Plymouth, her own consciousness of duty done is thus expressed.

"If the inhabitants of this metropolis have taken the warrantable and legal 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 bore 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."[190]

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."[191]

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 "moderated." His brief, emphatic response was: "No, never, unless compelled by force of arms."[192] Chatham, weak with disease, yet mighty in eloquence, exclaimed in ever memorable words: "The gentleman tells us, 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 the rest.... The Americans have been wronged; they have been driven to madness by injustice.... Upon the whole, I will beg leave to tell the House what is really my opinion. It is, that the Stamp Act be repealed, absolutely, totally, and immediately."[193] 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 unclean things of the Past, it now rots. Thither the Slave Act must follow.

Sir, regarding the Stamp Act candidly and cautiously, free from 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 chance of amercement by a single judge without a jury; but by no provision of this Act was the personal liberty of any man assailed. No freeman could be seized under it 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 personal 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 infringe important rights: one, of property; the other, the vital right of all, which is to other rights as soul to 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 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 can be enforced only by the bayonet is no law.[194] Sir, it is idle to suppose that an Act of Congress becomes effective merely by compliance with the forms of legislation. Something more is necessary. The Act must be in harmony with the prevailing public sentiment of the community upon which it bears. I do not mean that the cordial support of every man 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 the 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 rule, 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, in 1850, by formal resolution, declared with singular unanimity:—

"We hold it to be the duty of Congress to pass such laws only in regard thereto as will be sustained by the public sentiment of the Free States, where such laws are to be enforced."[195]

The duty of consulting these sentiments was recognized by Washington. While President of the United States, towards 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 at 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 which I have, recognizes 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 persons. The first cannot be calculated beforehand; 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 the occasion. So far as I have had opportunity, I perceive that different sentiments are entertained on this subject."

The fugitive was never returned, but lived in freedom to a good old age, down to a very recent day, a monument of the just forbearance of him whom we aptly call Father of his Country. True, he sought her return. This we must regret, and find its apology. He was at the time a slaveholder. Often expressing himself with various degrees of force 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 liberator of his slaves. Grateful for this example, I am grateful also, that, while 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 riot, or mob, or "even uneasy sensations in the minds of well-disposed citizens," must prevent any such pursuit.[196]

Sir, the existing Slave Act cannot be enforced without violating the precept of Washington. Not merely "uneasy sensations of well-disposed citizens," but rage, tumult, commotion, mob, riot, violence, death, gush from its fatal overflowing fountains:—

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 rescued 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 received report, was first seized under base pretext that he was criminal; arrested only after deadly struggle; guarded by officers acting in violation of the State laws; tried in a court-house girdled 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, though, for the sake of order and tranquillity, without violence, witnessed the shameful catastrophe.

Oppression by an individual is detestable; but oppression by law is worse. Hard and inscrutable, when the law, to which the citizen naturally looks for protection, becomes itself a standing peril. As the sword takes the place of the shield, despair settles down like a cloud. Montesquieu painted this most cruel tyranny, when he said that the man is drowned by the very plank on which he thought to escape.[198] And Moses exposes a kindred harshness, when, in commandment to the Israelites, he mysteriously enjoins; "Thou shalt not seethe a kid in its mother's milk"[199] Alas! every sacrifice under the form of law is only a repetition of this forbidden offence. The victim is the innocent kid, and the law is its mother's milk.

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, mere mushrooms of courts, vie and re-vie with each other. Now by indecent speed, now by harshness of manner, now by 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, bringing tears of sympathy to the eyes, and those other noble tears which "patriots shed o'er dying laws."

Sir, I shall speak frankly. If there be an exception to this feeling, it will be found chiefly with a peculiar class. It is a sorry fact, that the "mercantile interest," in unpardonable selfishness, twice in English history, frowned upon 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 born 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 facts. The literature of the age is all on his side. Songs, more potent than laws, are for him. Poets, with voices of melody, sing for Freedom. Who could tune 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 power sweeps 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 one hundred thousand copies of "Uncle Tom's Cabin" have been already circulated.[200] But this extraordinary and sudden success, surpassing all other instances in the records of literature, cannot be regarded as but the triumph of genius. Better far, it is the testimony of the people, by an unprecedented act, against the Fugitive Slave Bill.

These things I dwell upon as incentives and tokens of an existing public sentiment, rendering this Act practically inoperative, except as a tremendous engine of horror. Sir, the sentiment is just. Even in the lands of Slavery, the slave-trader 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—nachjagender Herr, as the Germans called him—was held in aversion. Nor was this all. The fugitive was welcomed in the cities, and protected against 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 the place, seized a fugitive slave. Hostile to this Act as our public sentiment may be, it exhibits no similar trophy. 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, reveals courage, manhood, character. No story is read with greater interest than that of our own Lafayette, when, aided by a gallant South Carolinian, in defiance of despotic Austrian ordinances, kindred to our Slave Act, he strove to escape from the bondage of OlmÜtz. Literature pauses with exultation over the struggles of Cervantes, the great Spaniard, while a slave in Algiers, to regain the liberty for which he declared to his companions "we ought to risk life itself, Slavery being the greatest evil that can fall to the lot of man."[201] Science, in all her manifold triumphs, throbs with pride and delight, that Arago, astronomer and philosopher,—devoted republican also,—was rescued from barbarous Slavery to become one of her greatest sons. Religion rejoices serenely, with joy unspeakable, in the final escape of Vincent de Paul. In the public square of Tunis, exposed to the inspection of traffickers in human flesh, this illustrious Frenchman was subjected to every vileness of treatment, compelled, like a horse, to open his mouth, to show his teeth, to trot, to run, to exhibit his strength in lifting burdens, and then, like a horse, legally sold in market overt. Passing from master to master, after 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 panegyric upon this fugitive slave, and, in homage to his extraordinary virtues, the Catholic Church has introduced him into the company of Saints.

Less by genius or eminent service than by suffering are the fugitive slaves of our country now commended. For them every sentiment of humanity is aroused.

Rude and ignorant they may be; but in their very efforts for Freedom they claim kindred with all that is noble in the Past. Romance has no stories of more thrilling interest. Classical antiquity has preserved no examples of adventure and trial more worthy of renown. They are among the heroes of our age. Among them are those whose names will be treasured in the annals of their race. By eloquent voice they have done much to make their wrongs known, and to secure the respect of the world. History will soon lend 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 recognizes property in man, and that, according to its true interpretation, Freedom and not 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 service, 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, while then and for a long period thereafter it was regarded with comparative indifference; that the recent Slave Act, though many times unconstitutional, is especially so on two grounds,—first, as a usurpation by Congress of powers not granted by the Constitution, and an infraction of rights secured to the States, and, secondly, as the denial of Trial by Jury, in a question of Personal Liberty and a suit at Common Law; that its glaring unconstitutionally finds a prototype in the British Stamp Act, which our fathers 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 belonging to the Colonies, and, secondly, because it was the 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.

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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 answer. It is to be found in a correct appreciation of the provision of the Constitution under which this discussion occurs. Look at it in the double light of Reason and of Freedom, and 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 examples of other countries, and principles of jurisprudence, it is a compact. Arrangements for extradition of fugitives have been customarily compacts. Except under express obligations of treaty, no nation is bound to surrender fugitives. Especially has this been the case with fugitives for Freedom. In mediÆval Europe cities refused to recognize this obligation in favor of persons even under the same National Government. In 1531, while the Netherlands and Spain were united under Charles the Fifth, 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,[202] which is expressly declared to be a compact; and this Ordinance, finally drawn by Nathan Dane, was itself borrowed, in distinctive feature, from the early institutions of Massachusetts, among which, as far back as 1643, was a compact of like nature with other New England States.[203] 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 obligation 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, early announced by Fortescue, that "he is to be adjudged impious and cruel who does not favor Liberty"[204]; and also completely adopting, in letter and spirit, as becomes a just people, the rule of the great Commentator, that "the law is always ready to catch at anything in favor of Liberty."[205] 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 shall be tried and determined is not specified. All this is obviously within the control of each State. It may be by virtue of express legislation; in which event, any Legislature, justly careful of Personal Liberty, would surround the fugitive with every shield of 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 anything in favor of Liberty." Nothing of this kind is here. But, passing from this,—"impiously and cruelly" renouncing for the moment all leanings for Freedom,—refusing "to catch at anything in favor of Liberty,"—abandoning the cherished idea of the Fathers, that it was "wrong to admit in the Constitution the idea that there could be property in men,"—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 questioned, 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 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 writ de Homine Replegiando, while the master, resorting to process, may find his remedy in the writ de Nativo Habendo, each requiring trial by jury. If, from ignorance or lack of employment, these processes have slumbered in our country, still they belong to the great arsenal of the Common Law, and continue, like other ancient writs, tanquam gladius in vagina, ready to be employed at the first necessity. They belong to the safeguards of the citizen. But in any event, and in either alternative, the proceeding 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 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 class of persons, according to just rules of interpretation, the phrase "person 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 cases of Naturalization and Bankruptcy, to empower the National Government to establish an uniform rule for the rendition of fugitives from service, 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 hateful pretension. They were content, under the sanctions of compact, in leaving it to the public sentiment of the States. There, I insist, it must remain.

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Mr. President, I have occupied much time; but the great subject still stretches before us. One other point yet remains, which I must 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 is 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 the laws of God is presumptuously and impiously to exalt man even to 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, as 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 quÆ justa non fuerit.[206] And the great Fathers of the Church, while adopting these words, declare openly that unjust laws are not binding. Sometimes they are called "iniquity," and not law; sometimes "violences," and not laws.[207] And here again the conscience of each person is final arbiter. But this lofty principle is not confined to the Church. Earlier than the Church, a sublime Heathen announced the same truth. After assailing indignantly that completest folly which would find the rule of justice in human institutions and laws, and then asking if the laws of tyrants are just simply because laws, Cicero declares, that, if edicts of popular assemblies, decrees of princes, and decisions of judges constitute right, then there may be a right to rob, a right to commit adultery, a right to set up forged wills; whereas he does not hesitate to say that pernicious and pestilent statutes can be no more entitled to the name of law than robber codes; and he concludes, in words as strong as those of St. Augustine, that an unjust law is null.[208] A master of philosophy in early Europe, of intellectual renown, the eloquent Abelard, in Latin verses addressed to his son, clearly expresses the universal injunction:—

The mandates of an earthly power are to be discussed; those of Heaven must at once be performed; nor should we suffer ourselves to be drawn by any compact into opposition to God. Such is the rule of morals. Such, also, by the lips of judges and sages, is the proud declaration of English law, whence our own is derived. In this conviction, patriots have braved unjust commands, and martyrs have died.

And now, Sir, the rule is commended to us. The good citizen, who sees before him the shivering fugitive, guilty of no crime, pursued, hunted down like a beast, while praying for Christian help and deliverance, and then 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."[210] Again let me speak frankly. Not rashly would I set myself against any requirement 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 not do. "Where I cannot obey actively, there I am willing to lie down and to suffer what they shall do unto me": such was the exclamation of him to whom we are indebted for the "Pilgrim's Progress," while in prison for disobedience to an earthly statute.[211] Better suffer injustice than do it. Better victim than instrument of wrong. Better even the poor slave returned to bondage than the wretched 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 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 historian records, that from the multitude of converts scarcely one was guilty of this apostasy. The law of man was set at nought. 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 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. There is the example of Washington; follow it. There also are words of Oriental piety, most touching and full of warning, which speak to all mankind, and now especially to us: "Beware of the groans of wounded souls, since the inward sore will at length break out. Oppress not to the utmost a single heart; for a solitary sigh has power to overturn a whole world."