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Gerrit Smith Broadside and Pamphlet Collection

Trial of Henry W. Allen, U.S. deputy marshal, for kidnapping : with...

Smith, Gerrit, 1797-1874.

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Call number: Smith 478

TRIAL

OF

HENRY W. ALLEN,

U. S. DEPUTY MARSHAL,

FOR

KIDNAPPING,

WITH

ARGUMENTS OF COUNSEL & CHARGE OF JUSTICE MARVIN

ON THE

CONSTITUTIONALITY

OF THE

FUGITIVE SLAVE LAW,

IN THE

SUPREME COURT OF NEW YORK.

SYRACUSE:
POWER PRESS OF THE DAILY JOURNAL OFFICE.

1852.

[BLANK]

STATEMENT

of the facts out of which arose the trial of Henry W. Allen for Kidnapping, at the Onondaga Circuit, in June, 1852.

On the first day of October, 1851, a man named William Henry resided at the First Ward of the city of Syracuse, where he was pursuing the trade of a Cooper. He had been a resident of the city for a considerable time previous to that day. During the morning of that day he was seized by Marshal Allen and his assistants, who claimed that he had been guilty of some offence against the State laws After he had quietly given himself to custody, he was ironed, and taken in a carriage to the office of Joseph F. Sabine, Esq, U. S. Commissioner, and on the way was informed, that he was claimed as a fugitive slave. The warrant, on which he was arrested, bore date on the 30th of September. On the first day of October, the city was crowded with citizens of the county, who were attending their County Fair, and with strangers who were attending a State Convention of the Liberty Party. A manacled slave, in the city of Syracuse, was a novelty, and an immediate and intense excitement ensued. Citizens and strangers flocked to the Commissioners Office - the bells of the churches were tolled - Counsel volunteered to defend the person claimed, and the trial proceeded - the agent of the claimant sitting in Court armed, and the man claimed, in chains. As the Court was about adjourning for dinner, the room being densely packed, the man Henry made an effort to escape, and being indirectly aided by the bystanders - though without any apparent concert - got out of the room in advance of those having him in custody, and tied. He was overtaken, however, by some of the police of the city, and a few volunteer assistants, placed upon a cart, and drawn back through the crowded streets, his clothes torn off; and excessively bruized in the struggle, and was taken to the Police Office of the city. The trial was resumed in the afternoon, the excitement continually increasing, and a large crowd gathered in front of the Office. As evening approached, stones were thrown into the Office, and early in the evening the Court was abruptly adjourned until morning. The Commissioner of the Counsel, and most of the spectators, left the Police Office, leaving Henry in charge of Marshal Allen, and the Marshals from Auburn, Canandaigua, and Rochester (who by some accident happened here on that day), and the Claimant Lear. About nine o'clock in the evening, the doors and windows of the Police Office were forced, and Henry rescued and sent to Canada.

This occurrence was followed by the Indictment in the United States District Court, of several persons charged with aiding in the rescue, and an Indictment in the State Court of Allen and Lear for kidnapping.

A joint indictment was found in the Oyer and Terminer for Onondaga County, against Allen and Lear, under a Statute of New York, passed May 6, 1840, entitled - "An act to extend the right of trial by Jury:" (Chap. 225 of Laws of 1840.) The seventeenth section of that Act is as follows:

"17. Every person who shall, without the authority of law, forcibly remove, or attempt to remove from this State any fugitive from service or labor, or any person who is claimed as such

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fugitive, shall forfeit the sum of five hundred dollars to the party aggrieved, and shall be deemed guilty of the crime of kidnapping, and, upon conviction of such offence, shall be punished by imprisonment in the State Prison for a period not exceeding ten years."

This Indictment was removed into the Supreme Court by Allen, who alone was arrested (Lear having left the State), and he plead a special plea in bar, setting forth the issuing of the warrant by Sabine, whom he averred to be Commissioner, delivery to him as Deputy of the Marshal, and that the man was seized under its authority; and justifying the seizure under the Fugitive Slave Act of September 1850. To this plea the District Attorney replied, denying the matters stated in the plea, and denying the authority of the Commissioner to issue, or the Marshal to serve, such warrant.

The Indictment was sent down to the Circuit Court to be tried, and, on the 21st June, 1852, came on for trial.

PROCEEDINGS.

[Reported by W. L. Crandal, of Syracuse.]

This case is the first one of the kind that has been brought since the Constitution of the United States was adopted. It, therefore, possesses, on that account, an importance which could not otherwise attach to it.

Henry W. Allen, the defendant, is Deputy U. S. Marshal. As such, a warrant, issued by Joe. F. Sabin, U. S. Commissioner, for the arrest of one Jerry, otherwise called William Henry, on the 29th of September,1851, was placed in his hands. It was alleged in said warrant that said Jerry owed "service and labor" to a party in Missouri. On the next day-1st of October Allen executed the warrant, by the arrest of the man Jerry, who was brought by him before Commissioner Sabine for examination, with a view to deciding whether he should be returned to Missouri, on the claim set up on the warrant.

Before this examination was concluded, it is well known that Jerry left for parts unknown, so far as the records of the U. S. Commissioner show.

Marshal Allen was presented before the Grand Jury of Onondaga County, at the October session of the County Court, 1851, for indictment under a law of the State of New York, 1840, to protect the rights of its citizens-or against kidnapping.

The Grand Jury found a true bill against Marshal Henry W. Allen, under said Act for kidnapping, in arresting Jerry under the said warrant.

And hence, the case set down for this day, 21st June, 1852, at the Onondaga Circuit, before Justice Marvin.

The proceedings of Marshal Allen were founded on the act called the Fugitive Slave Law, passed September 1840.

The proceedings before the Grand Jury, on which Marshal Allen was indicted, were founded on an Act of the Legislature of New York, of 1810.

It would seem - the Reporter would beg leave to say-that the question in this case is, whether in the State of New York, any man has the right, on any authority whatever, to place another person who has not committed crime, and is not charged with crime, or breach of contract, in durance vile, with impunity. Marshal Allen, in the arrest of Jerry, acted in conformity to the law of Congress of September, 1850 - which would seem to make the issue, that the law is inconsistent with the constitutional rights of the people of the State of New York.

Counsel for the people. - Rowland H. Gardner, District Attorney of Onondaga County, Charles B. Sedgwick, and Gerrit Smith.

For the Defendant - U. S. Dist. Attorney, James R.. Lawrence, George F. Comstock, and Stephen D. Dillaye.

At 10 minutes before 10 o'clock, the case was called, when Mr Sedgwick stated that the witnesses for the prosecution had been subpoened, but were not present in Court. The case was reserved.

At half-past 3 o'clock, the case was again called.
The following jury was empanelled:

As soon as the panel was completed, Mr. Lawrence called for the names. They were read over by the Clerk.

Mr. Lawrence enquired if there were any more names in the box ?[Clerk: There are.]

No challenges were made, and the Jury was sworn.

Mr. Lawrence raised the question whether the defence had the affirmative. The indictment charges the defendant, with force and arms, and without authority of law, arresting one Jerry, a man of color. The indictment is under the statute of 1840, sec. 26. Mr. L. read the section of the statute, imposing a fine of $500, and ten years of imprisonment, for kidnapping. Mr. L. then read documents showing that the defendant acted in conformity to law-including the warrant issued by U. S. Commissioner Sabine, for the arrest of Jerry, with a view to his return to John

McReynolds, of Missouri, as a fugitive from service and labor. It included, also, the return of Marshal Allen, to the warrant. The defendant denies that the people of the State of New York, can prosecute him.

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Mr. L. went on to remark that in rely, the prosecution simply deny the facts set forth as to the issuing of a warrant; deny that Sabine was a U. S. Commissioner; that he was duly appointed; deny that he had a right to issue the warrant, &c.

Mr. L. said: We suppose that all we have to do is to attend to the facts herein denied, and prove them to be true ; and we suppose that we have the affirmative.

Mr. C. B. Sedgwick did not so understand the state of the case. Marshal Allen - it is claimed by the people - did feloneously, &c., take the man Jerry, without authority of law. He supposed that the defendant's counsel would not admit the indictment but intended merely a special plea. The defendant must either admit or deny what is charged. Such is the English law - Archbold's Criminal Pleading, 186th page, and such is our own law. The counsel read to show that the only case where a special plea was admissible, was when a county or town are indicted in reference to the repair of a bridge, in order to proceed to show that other parties ought to have done the work. In this case, the offence is admitted; but the attempt is made to show that other parties are at fault. Counsel also read from page 94, that the prosecution is bound to show the offence, and that the defence can show everything going to rebut the allegations of the prosecution.

Counsel referred to 2d Revised Statutes, page 611.The party arraigned may demand trial and a plea of not guilty is to be entered by the Court, in all cases wherein the truth of the indictment is not admitted. He went on to say, that it was competent for the prosecution, under the indictment, to prove that Marshal Allen did things in reference to Jerry out of the warrant. They, therefore, proposed to go on and prove these things, under the traverse of the indictment.

The Court: Mr. Sedgwick, what am I to do? Here is an issue sent down from the Supreme Court, to be tried. What can I do but try that issue as presented?

Mr. Sedgwick: I suppose you are to try the question, under the indictment,. as it would be done in any Court. That you are to try the case as in any other Oyer and Terminer.

The Court spoke of it, as a special issue, arising from the Defendant's special plea. That the case would be confined to the special plea, when no further answer was made by the Prosecution. If Mr. Sedgwick is right, are we in a position to try the case at all?

Mr. Sedgwick supposed that the case must be tried on the indictment, unless the Defendant admitted it to be true.

The Court referred to the practice in trying immaterial issues sent down, &c. It called Mr. Lawrence's attention to the fact, that Mr. Sedgwick expected the case would be tried on the original pleadings.

Mr. Lawrence said a special plea In a criminal case, was good. You are not precluded from it. They have not demurred. They have made certain allegations. We say all we did, was to take the man on the warrant, and bring him into Court. They denied that we did it. - The whole object of the special plea, was to obviate the necessity of testimony. What have we consented to try? That Sabine was Commissioner - that he issued the warrant - that Marshal Allen arrested Jerry on it - and that is the end of the case. He contended that Archabold did not preclude them from pleading specially. It was done in civil cases, to save the expense of testimony. He went onto read from Archabold, that only in certain cases a special plea "seems requisite." We always had a right, in criminal cases, to plead specially. It was never intended to preclude the right. In certain cases, it is necessary. He claimed that by the authority, they had a right to plead specially any thing in bar. The Statute of our State, read by Mr. Sedgwick, had nothing to do with pleadings as in this case.

The Court: It is agreed by all of you, that a plea of "Not Guilty," would be a good plea.

Mr. Lawrence: Very well. We admit that we did take the man-but that we took him properly, and deny that we did any thing more than we state. Mr. L. read from Wharton's Precedents to Indictments, to show that in Massachusetts special pleas were good. He maintained that no authority against special pleas, could be shown. We are to have the affirmative. How can they begin? What have they to show? By the pleadings, they have consented that when we have proved the warrant, and the arrest under it, the case is ended. They cannot go on and show that other things were done. Mr. Sedgwick said the gentleman did not seem to apprehend the point in the case. The reply of Defendant, is a general dental of the indictment-and that is a plea of "Not Guilty." The statute says, if the Defendant does not deny the indictment, he confesses it. He says, also, that he acted by authority of law-we say he did not-and here is an issue. We are bound under that plea, to go on and prove that he did what is charged, and without authority of law. There was no such things under the laws of this State, as a prisoner escaping from a trial by any trick of special pleadings. He referred to the statute of this State.

The Court requested its reading again.

Mr. Sedgwick read, and continued: The statute applies precisely. The Defendant, in his pleadings, denies the truth of the indictment, and that brings up the whole case, from the starting point.

Mr. Lawrence: According to your argument, you could have no special plea.

Mr. Sedgwick : He can make the plea anter foi acquit - but by that you confess to the charge in the indictment: admits he has been tried on it, and therefore cannot be tried again. By tits Statute, if a defendant denies the indictment, it is a plea of "Not Guilty." The Defendant here has denied the indictment - and that makes an issue. We admit all they claim in regard to the action of the Commissioner Marshal, &c.; but we have come to try the body of the indictment. The question is not one of dorm, as raised by the counsel, but one of substance-as to what we are to try. From this, there is no escape.

The Court: The Pleadings present a singular state of facts. I know of no way, but to try the issues the parties have seen fit to make. Read from the Statute, in regard to kidnapping. The Indictment substantially follows the Statute. The Defendant then comes in, and says he acted according to law. He then avers that this is his offence as charged-and that he has done no more.

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The People, instead of demurring, take issue on it. Now, is not this the issue before me? If I regard it as a mere plea of " Not Guilty," I must strike out all these pleadings. Can I do this? In another place - in the General Term, he could hear the motion. But here he had only to hear the issues as presented. He had decided notions as to this form of pleading - but he would not give them. He could not see what the Jury could find upon, except the issues presented by the pleadings. To say the least of it, it is a very unusual way of leading.

Mr. Sedgwick : I suppose the Jury are to find whether this Defendant is guilty or not guilty? - not whether Sabin is Commissioner, and Allen a Marshal.

The Court expressed assent.

Mr. Lawrence: Guilty of what?

Mr. Sedgwick : Guilty of attempting feloniously to take a man from the State of New York - "Kidnapping" in technical language.

It was then agreed that the defence was to proceed, as first claimed by Mr. Lawrence. Mr. George F. Comstock then read the following stipulation:

SUPREME COURT:

The People vs. Henry W. Allen.

It is stipulated to admit on the trial of this cause, that on the 1st day of October last, Joseph F. Sabin, Esq., was a Commissioner of the United States Circuit Court, appointed by order of that Court, entered on the 27th day of June, 1849; that on that day as such Commissioner he issued the warrant hereto annexed to the defendant in this cause as Deputy Marshal of the united States; that the Defendant or some Deputy Marshal executed said warrant on the same day by arresting Jerry therein named, and bringing him before the said Commissioner, and that he made his return to said warrant, which is endorsed thereon.

F. H. GARDNER, Dist. Att'y.

Mr. Sedgwick read a stipulation substantially admitting, that the person claimed was a resident of this State - that James Lear, as the agent of one John McReynolds, of Missouri, who claimed that he owed him labor or service, as a slave for life, came here with the intent to remove the man Jerry forcibly from the State -that Allen, (acting as Marshal,) with a knowledge of the claim and intent of Lear, assisted in taking him.

Mr. Sedgwick then called Frederick Morrell. No answer. He then called Joseph F. Sabin.

Mr. Lawrence asked what he wished to prove?

Mr. Sedgwick said he wished to prove by Morrell, that for some time Jerry had been a resident.

It was contended and agreed, that Jerry was such resident.

Mr. Lawrence desired to know what counsel desired to prove?

Mr. Sedgwick : By Mr. Sabin, we propose to show, that the defendant took measures to keep Jerry after the return was made on the warrant.

Mr. Comstock :That is beyond the pleadings, and is therefore excluded.

Mr. Sedgwick: We may as well state the whole case. We propose to show that Allen took measures before the warrant was issued to secure Jerry for the purpose or retaining him, and acts after the warrant was returned.

The Court suggested, that if there were any charges in the indictment not admitted in the special plea, they were confessed; and it was not necessary to go into the proof.

Mr. Sedgwick thought we were in danger of confusion, by confounding civil with criminal pleadings.

Mr. Comstock: They charge us with attempting to remove a man without authority of law. We admit that we attempted to remove the man - but showed the authority. They simply put themselves, in their plea, on a denial of the facts. The special pleading in a criminal case, does not differ from special pleading in a civil case. What do they propose to show? That the defendant acted outside of the warrant. He supposed that some great principle was at stake-a constitutional principle. He was prepared for that, and to show the unconstitutionality of the law of New York under which this indictment was found.

The Court: It is intended, I suppose, to raise the Constitutional question.

Mr. Sedgwick; It is.

Mr. Lawrence: Not here - before this Court. Elsewhere it maybe raised.

Mr. Sedgwick: It will be a flue time to raise that question after the prisoner has gone.

Mr. Lawrence went on to insist that the Prosecution were attempting to change the issue. They have said to us, "If you prove what is in your special plea, there is an end of the case." That is the language of the plea. He insisted that, as they had not demurred, the constitutional question could not be raised. The facts are all made out, that we alleged - we have proven that the issue as sent here to be tried, is all true as maintained by us - and yet are we to be beat! The Court supposed that there was a general understanding as to the facts, but that the Prosecution denied that the warrant was a warrant--that it was good for nothing.

Mr. Sedgwick :Yes, sir; that is the very question we expected to meet.

Mr. Lawrence thought otherwise. When the Defendant plead, he supposed the prosecution would demur.

The Court thought the Constitutional question could be raised under the pleadings.

Mr. Comstock said the particular question now up, was, whether the Prosecution could come into Court with testimony not referred to in the pleadings.

The Court decided that the testimony offered could not be admitted.

The case was therefore declared closed.

The Court then suggested that the Counsel amicably agree among themselves as to the order of summing up. The case was under the laws of this state: it was charged that an offence had

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been committed against the laws of this State; on the other band, that the act was done under authority of the laws of the United States; again on the other, that the law of Congress was unconstitutional, and therefore void.

Mr. Sedgwick said he had suggested, that the Prosecution open the argument. This was assented to. After a short recess -

Mr. Sedgwick said, that in view of Mr. Comstock's intimation that he would maintain the unconstitutionality of the 26th section, (Rev. Statutes, 3d Ed.) and the law of New York, under which this indictment was found, he would make a statement of the history and provisions of the law of New York, under which this indictment was found., and proceeded to do so.

When he had concluded, it was agreed that the Court would adjourn till 8 o'clock tomorrow morning, when Mr. Smith was to commence his argument for the prosecution.

Second Day - Morning Session.

At 10 minutes past 8 o'clock, the Jury having taken their seats, the Court was called to order by His Honor, the presiding Judge, R. P. Marvin.

The Jury was called, and eleven answered.

The Crier called on the Sheriff to send for Wm. K. Blair, who was absent.

At half past 8 o'clock, Mr. Blair arrived, and the Court stated that the argument could proceed.

[NOTE BY THE REPORTER. - From these proceedings, lawyers will understand precisely how much, and precisely how little, the jury had to do with the decision of this case. Others may not. So I will state, that not a word was addressed to the jury by counsel. Not a fact was placed before them, save those in the stipulation-that Allen was a Marshal, Sabine Commissioner, &c. The only question raised was, whether or not the Fugitive Slave Law is constitutional - and that trial was before the judge. At the conclusion of the argument, Judge Marvin gave to the jury a review of the constitutional question - pronounced the law constitutional-and at the close of his review, advised the "jury to bring in a verdict for the defendant of ' Not Guilty' " This the jury did et once, in answer to the inquiry of the Clerk. Their part in the decision, was one of form, only.]

ABSTRACT

OF

GERRIT SMITH'S ARGUMENT.

Having closed his introductory remarks, Mr. Smith proceeded to say - It is admitted in the pleadings, that the prisoner had a part in this undertaking to sink his fellow-man into slavery. It is true, that these admissions do not make that part as extensive, as it really was, and as extensive as we should have shown it to be, had we been allowed to produce witnesses. It nevertheless, answers my purpose in the argument, which I am, now, to make, that the prisoner had a confessedly clear and responsible part in this undertaking.

And, now, what is the prisoner's excuse for this high crime against his brother man? It is, that he acted under law, and according to law. Well, if he did, then he is innocent. If not, then he is guilty. I admit, that this is the hinge, on which this case turns. If that is a Constitutional, valid law, under which the prisoner acted, and if he rightly interpreted its scope and claims, then he should be acquitted - and, otherwise, convicted.

It is sometimes, said, that it is unreasonable to require a merely ministerial officer to know what is law. But every man is required, and most reason ably, too, to know what is law. Emphatically true is this in the case of him, who aspires to be, and who comes to be, a minister of the law. We, also, hear it said, that the bare existence of a law should be admitted to be presumptive evidence, that it is Constitutional-such strong presumptive evidence, that the officer may feel entirely free to act upon it. Our reply to this is - that if the law is immoral and wicked, its immorality and wickedness constitute presumptive evidence of its Unconstitutionality. Especially prompt and full should be the presumption, that the law is Unconstitutional, if its immorality and wickedness are flagrant, as in the case of a law for slavery. Not to take this ground is deeply to dishonor the Constitution. If an execution is put into the hands of the sheriff, for the purpose of having him levy on hogs, he may take it for granted, that all is right - for he knows

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that hogs are property. But if a process is put into his hands, for the purpose of having him treat a human being as property, and reduce that human being to slavery, then he is bound to pause, and to enquire, whether the law for that process can possibly be a Constitutional, valid law. It is often said, too, that it is hard for an officer to be punished for his ignorance of the law. Yes - but is not his title to our sympathies far weaker than that of the victims of his ignorance? By means of this ignorance, a freeman of the County of Onondaga might be torn from his wife and children to spend his remaining years under the lash of the taskmaster upon a Southern plantation. It is insisted, however, that if an officer act in good faith, his good faith should acquit him of blame, and protect him from punishment. But, there are many authorities to the contrary. I will refer to a few of them:

Says Justice M'Lean [Peter's Reports, x. 94]. "1 It would be a most dangerous principle to establish, that the acts of a ministerial officer, when done in good faith, however injurious to private rights, and unsupported by law, should afford no ground for legal redress." In the South Bend (Indiana.) fugitive slave case, Justice M'Lean held "that all, who assisted in procuring, with the officer, that served, and the judge, that tried, the writ were trespassers, and liable to the plaintiff in damages * * * * that the discharge of the fugitives by the judge was void, and, consequently, can give no protection to those, who acted under it * * * * that the forms of law assumed afford no protection to anyone." Justice Van Ness says [Johnson, xv. 155] : "Every tribunal, proceeding under special and limited powers, decides at its peril-and, hence, it is, that process issuing from a Court not having jurisdiction, is no protection to the Court, to the attorney, or the party, nor even to a ministerial officer, who innocently executes it. This is a stern and sacred principle of the common law, which requires to be steadily guarded and maintained."

Nor is it enough, that a judge or marshal can quote even an Act of Congress as authority for what he has done. Unless the Act is Constitutional, it affords no protection. Said Justice M'Lean, in a letter, which was extensively copied by the press, a year or two since: "An Unconstitutional Act of Congress imposes no obligations on a State or the people of a State; and may be resisted by an individual or a community. No one, I believe, will contradict this. "If an Act of Congress direct the judge to direct the marshal to insult the people he meets, neither judge nor marshal can obey it with impunity. Emphatically unsheltered would they be by an Act of Congress, which commands them to enslave people - unless, indeed, such Act should prove to be Constitutional.

It must be remembered, that the officer is required to swear to support not an Act of Congress, but the Constitution

I will, now, proceed to show, that under the law, under which the prisoner acted,

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is Unconstitutional, and that he is, therefore, a kidnapper. I will regard the law as intended to apply to slaves, whether it does, or does not, apply to any other class of persons.

My first position is, that the law is Unconstitutional, because it withholds the trial by jury.

The Constitution requires the trial by jury in all criminal prosecutions. Why does it? Because, in such prosecutions, the highest interests of the accused-character, liberty, life-are in peril. Hence, he is entitled to the advantage of a jury trial.

Now, I admit, that the prosecution for the recovery of a fugitive slave is but a civil prosecution. Nevertheless, it is a prosecution, which perils the liberty of the defendant - ay, his liberty for life. Liberty for life, did I say? Oh! this expresses the idea quite too feebly and inadequately. Manhood for life, I should have said. The convict in the State Prison is deprived of his liberty; but not of his manhood. His manhood survives; and is under the full protection of the laws. Should even the Governor of the State visit the State Prison, and lay but his little finger in violence and injustice upon the convict, he would soon be taught that he could not do so with legal impunity. But the prosecution for the recovery of a slave, if it goes against the defendant, sinks him into a chattel, and leaves him not a shred of his manhood, nor the least protection of law.

Manifestly, then, had Congress acted in the spirit of the Constitution, the law in question would have provided the trial by jury for persons claimed under it. May Congress, in enacting a law for the recovery of fugitive slave, provide the trial by jury? All will admit, that it may. All will admit, that there is nothing in the Constitution to hinder it. Well, if it may, then it must - for, in such a case a may amounts to a must. No one will deny, that, if Congress would take upon itself to enact a law to carry out the Constitutional clause before us, it should enact just such a law, as it would be proper to enact, had the clause gone on, and ended with the following words: "And Congress shrill enact a suitable law to carry out this clause."But who, I pray, can call a law suitable, which denies a jury to the man, who is on trial for more than his life? Yes, much more than his life - for liberty and manhood are much more than life.

Congress should have enacted, in this case, none but a reasonable law. A palpably unreasonable law, in this case, is an Unconstitutional law. I say, not, that every unreasonable law is Unconstitutional; - for there may be unreasonable clauses in the Constitution - clauses calling for unreasonable laws. But this I do say - that, if there is a palpably unreasonable law, which the Constitution does not call for, then does its palpable unreasonableness make it Unconstitutional. We must take this ground, if we would honor reason. We must take this ground, if we would honor the Consti-

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tution. I scarcely need add, that the gross unreasonableness of this law, in withholding the trial by jury, is entirely uncalled for by the Constitution.

I need say no more to show, that this withholding the trial by jury violates the spirit of the Constitution. I go on to show, that it violates its letter also.

"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." [VIIth Amendment of Constitution.] But the amount involved in a suit under the fugitive servant law will generally, if not always, exceed twenty dollars. More over, a suit under this law is a suit at common law. That it is such can be proved, in no wise, more conveniently and effectually than by quoting the very words of the S.C. of the U. S., which Lysander Spooner quotes for this purpose. I shall, in other parts of my argument, as well as this, avail myself of the help of this admirable logician, whose writings I warmly commend to all my hearers.

What is a suit? It is the prosecution of a claim. The Supreme Court has so defined it.

In Cohens vs. Virginia, the court say

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

"To commence a suit, is to demand something by the institution of process in a course of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue that demand." - 6 Wheaton 407-8.

Well, is a suit the prosecution of such a claim, as is spoken of in the fugitive servant clause of the Constitution? It is, if that clause refers to slaves. The Supreme Court have said, that it is.

In the case of Prigg vs. Pennsylvania, the court say -

"He (the slave) shall be delivered up on claim of the party to whom such service or labor may be due: * * *A claim is to be made. What is a claim? It is in a just juridical sense, a demand of some matter, as of right, made by one person upon another, to do, or to forbear to do, some act or thing as a matter of duty. A more limited, but at the same time an equally expressive definition was given by Lord Dyer, as cited in Stowell vs. Zoueh, Plowden 359; and it is equally applicable to the present case; that 'a claim is a challenge by a man of the propriety or ownership of a thing, which he has not in his possession, but which is wrongfully detained

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from him.' The slave is to be delivered up on the claim." - 16 Peters 614-16.

We have, now, gone far enough to learn, that a prosecution for the recovery of a fugitive slave is a suit. It remains to be learned, that it is a suit at "common law." Happily, we can learn this also, from the Supreme Court, That Court gives the meaning of "common law;" and gives it too, as the term is used in the Seventh Amendment of the Constitution:

"The phrase 'common law,' found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. The Constitution had declared in the third article, 'that the judicial power [shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority &c., and to all cases of admiralty and maritime jurisprudence. It is well known, that in civil causes, in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was prevent to the minds of the framers of the amendment. By common law, they meant what the Constitution denominated in the third article, 'law; ' not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit." * * * *

"In a just sense, the amendment, then, may be construed to embrace all suits which are not of equity and admiralty jurisprudence, whatever may be the peculiar form which they may asume to settle legal rights." - 3 Peters, 446.

Perhaps, it will be said, that a jury trial is not due to the fugitive slave, because the value in controversy is not to be measured by dollars - or, in other words, because a man is not property. But the slaveholder surely is estopped from raising this objection; - for, whether the fugitive slave is, or is not, property, the slaveholder, nevertheless, claims him as such. Moreover, the Supreme Court of the U.S. has said, that the prosecution in this case is a prosecution for property - that "the right," in question, "is a right of property." [Peters XVI., 616]

This denial of the right of trial by jury, together with the very extensive acquiescence in such denial, constitutes, in my esteem, one of the most significant of all the evidences of the progress of despotism in this country - one of the most significant of all the evidences of the growing contempt in this country for human rights - the strongest bulwark of their safety; - and, hence this denial of it should produce deep and wide-spread alarm.

"The trial by jury," says Justice Story, [3d Peters, 446] "is justly dear to the American people. It has always been an object of deep interest and

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solicitude; and every encroachment upon it has been watched with great jealousy. The right to such a trial is, it is believed, incorporated with and secured in every State Constitution in the Union. One of the strongest objections originally taken against the Constitution of the United States was the want of an express provision securing the right of trial by jury in civil cases. As soon as the Constitution was adopted, this right was secured by the 7th Amendment.

But it may be said, that the enactors of this law intended to deny the jury trial to the black race only. Alas, what an outraged race it is! In the words of the prophet Isaiah, "This is a people robbed and spoiled. They are all of them snared in holes, and they are hid in prison houses. They are for a prey, and none delivereth; for a spoil, and none saith, restore" - Such, doubtless, was the intention. Indeed, had the intention been to deny it to the white race also, scarcely would the lives of the enactors have been safe from the fury of that haughty race. This distinction between one portion of the American people and the other, although a stupendous crime, at which all should stand aghast, is, nevertheless, acquiesced in, and approved, by this superlatively guilty nation.

This law does, in its terms, apply to both whites and blacks, and exposes both to its penalties. What, however, if the public sentiment is such, as to confine its operation, for the present, to the blacks? - will not the denial of the right of trial by jury to one race of our citizens prepare the way for denying it to every other race of our citizens? - and will it not hasten the day, when this right shall be cloven down in every part of our land, and denied to every class of our people?

My second position is, that the law is Unconstitutional, because the Commissioner is not authorized by the Constitution to do what the law requires of him.

The law invests him with a judicial office-a judicial office in the eye, and in the meaning, of the Constitution. It requires him "to hear and determine the case."

But discerning men, who desire to uphold the law, and who see, that the investing of the commissioner with a judicial office, is necessarily fatal to the Constitutionality of the law, deny, that he is thus invested. They hold, that "the trial," "the adjudication," is to take place in the State, whence the fugitive escaped; and that, in this respect, the fugitive servant clause of the Constitution and the fugitive - from-justice clause of the Constitution are alike. But whilst the latter clause expressly provides, that the trial shall be in the State, whence the fugitive escaped, the former clause does not express, such a provision, nor imply it, nor, in the remotest degree, hint at it. The fugitive servant is to be delivered up to the person, to whom, when his, "claim" is examined, the servant is found to owe service: and, if the servant is a slave, then his master can sell him forthwith - and that, too, even

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though half a dozen States intervene between the slave State in which he is arrested, and the slave State from which he fled. But the fugitive from justice is delivered up, not after it is ascertained, that he is guilty of the offence charged against him; but that it may, in another jurisdiction, be ascertained, whether he is guilty of it. The fugitive of the one clause is to be delivered up, because he has been tried and convicted. But the fugitive of the other, if, as is generally the case, he fled before conviction, is to be delivered up for trial - and is, therefore delivered up as an innocent person, and an innocent person he will remain, in the contemplation of law, until he has been tried and found guilty.

It is, nevertheless, held, that the trial of the fugitive servant in the State to which he has fled, is but a preliminary trial, and that his decisive trial is, according to the theory of the case, to be in a State Court, in the State from which he escaped. Our answer to this, is - First, that we see no propriety in calling that a preliminary trial, which is a comprehensive and conclusive one - a comprehensive and conclusive one so far as investigating and passing upon all the questions in the whole case can make it such. Second, that the trial under the Federal and paramount government, would operate as an estoppel to the institution of a suit in the State Court ; or, at least, that the trial, under that government, could be effectually plead in bar on the trial in the State Court; for, surely, if it is competent for a Federal Court to decide, that A. B. is the slave of C. D., it cannot be competent for a State Court to reverse that decision. Third, that the law of 1850, claiming, as it does, that the Federal Government has exclusive jurisdiction of this case, does not presume, and could not presume, on any auxiliary or supplementary action, at the hands of another sovereignty. It must itself make a complete provision for the demands of the case. It clearly, has no Constitutional right to rely on foreign agencies to do any part of its own work. Moreover, if there are, today, State laws, which authorize a further trial in this case, they may, nevertheless, be repealed tomorrow. And what goes still further to forbid all reliance on State action to complete that, which the Federal Government has left undone, is that, on the question, whether a person is a slave, there is, in reality, no adjudication in any of the slave States. For, in none of those States, is a person claimed to be a slave, unless he is also claimed to be a colored person; and, in none of those States, is a colored person allowed to call colored witnesses, where the other party is a white person. Now, that would be but a mockery of the adjudication of rights, where persons are forbidden to testify, because their hair is white, or their eyes are blue. But the mockery in that supposed case would not surpass the mockery in this actual case.

It was, however, unnecessary for me to go into this argument, if what

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the S. C. of the U. S. has said on the point before us may be taken as con. elusive authority.

"It is plain, then, that where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person; and inasmuch as the right is a right of property, capable of being recognized or asserted by proceedings before a court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy between the parties, and a case arising under the constitution of the United States; within the express delegation of judicial power given by that instrument."- Prigg vs. Pennsylvania, 16 Peters, 616.

That Justice Story, who delivered this opinion of the court, had, ten years previously, expressed in his Commentaries [Vol. iii. 677] an opposite doctrine on this point, is neither material nor surprising. It is not material - for, besides, that his authority, as a judge of the S. C. of the U. S., is quite equal to his authority as a commentator, his authority, as a judge, is in this instance, fortified by that of his associate judges. And his self-contradiction, in this instance, is not surprising-for he has far more than matched it in this very Prigg case.

When writing that part of his Commentaries just referred to, Justice Story was, as a Northern man, endeavouring to convince the South, that she has notion; to complain of; and that it is "a delusive and mischievous notion, that the South has not, at all times, had its full share of benefits from the Union:" but when he came to write the Opinion of the Court in the Prigg case, he was a "Northern man with Southern principles." He was, then, aware, that the rule of interpretation laid down in his Commentaries [Vol. i. 357, and Vol. ii. 534], and so emphatically concurred in by Kent in his Commentaries [Vol. i. 243, 3d edition,] was fatal to a pro-slavery construction of the Constitution: and, hence, he put forth a new and entirely different rule of interpretation. In his Commentaries he says, that the interpreter must adhere to the letter of the Constitution, and that "nothing but the text itself was adopted by the people; " - but, in the Prigg case, he bids the interpreter quit the certainty of the letter to launch forth upon the uncertainty of history! Peters xvi, 610.

With few exceptions, and Justice Story was not one of them, the great men of our country have fallen down at the feet of the slave power, no matter how touch of self-respect or self-consistency, the prostration has cost them.

No more need be said to show, that the law requires from the commissioner the work of a judge. The only other question, is whether the commissioner is a judge - a Constitutional judge.

The fact, that the commissioner is appointed by a judge proves, that he is not a judge. Surely, surely, the Constitution recognizes no such monstrous doctrine, as that one judge can appoint another judge. The proceedings of the appointee might come up for review before the appointer;

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and to prove the wisdom of his selection, as well as to save uninjured the reputation of his favorite, the appointer might be strongly tempted to make his review a very partial and tender one.

I readily admit, that a court may appoint officers to take testimony, and to perform acts in aid of a court. But, I cannot admit, that a court map appoint a court. The commissioner's court, however, is as truly, and indedently, and emphatically, a court, as is the S. C. of the U. States.

The fact, that the commissioner is paid in fees for his services does also, and does conclusively, prove, that he is not a Constitutional judge. The Constitutional judge receives a salary for his services. Is it said, that this point, at which the law of 1850 is Unconstitutional, is unimportant? It is, on the contrary, very important. The manifest object of the Constitution, in paying the judge a salary, is to secure his impartiality and uprightness. Were he paid in fees, he would be tinder temptation to favour plaintiffs for he could not be ignorant, that plaintiffs are apt to select the court, which is known to favour plaintiffs, and are apt to multiply suits, if they can have such a court to take them to.

But it may be said, that the Constitution authorizes Congress to "vest the appointment of such inferior officers, as they think proper, in the courts of law." For the reasons already given, however, the commissioner cannot be one of these "inferior officers." The services of a judge are required of him; and no person can be a Constitutional judge, who receives his judgeship from a judge, or who receives his compensation in fees. Moreover, the commissioner cannot be one of these "inferior officers," for the reason, that he is not an inferior officer. Call him an inferior officer, who has concurrent jurisdiction with the judges of the S. C. of the U. S.? - and, that too, in a class of cases more important than any other class of cases, which can come before an earthly tribunal? - for, I hold, that there is no other class of cases so important, as that, in which the question is, whether a man shall be left upon the heights of manhood, or be cast down into the depths of brutehood and chattelhood. I doubt not, that the enactors of this law regarded the commissioner as an inferior officer. For, inasmuch as they took it for granted, that the law would bear upon negroes only a race of men, for whose rights they had no more respect than for the rights of dogs - they saw not the rank and dignity of a judge in him, whom. their law called to the office (in their eyes, very low office), of disposing of the fate of negroes. Again, can you call him an "inferior" officer, who, in another important respect also, is the equal of the judge of the S. C. of the U. S.? - he, as well as such judge, holding his office during good behavior, or, in other words, for life? For, if the commissioner is really a judge - a judge Constitutionally, as well as in the nature and services of his office-then, whatever else to the contrary, he does, by the paramount authority of

B

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the Constitution, hold his office for life; - ay, and, by that same authority, he can, should the calls of kidnappers for his kidnapping services become infrequent, demand a salary, in lieu of his infrequent fees. Here is our commissioner Sabine, who issued the warrant for poor Jerry - his modesty may be all unconscious of the honor - nevertheless, if he will but know it he is, if a Constitutional officer at all, a U. S. judge for life, and entitled, thereby, to claim a salary for life. Again, is it fit to call him an °' inferior" officer, who, not only, has the most important of all cases brought before him, but whose decision upon those cases is conclusive and final?

My third position is, that the law is Unconstitutional, because it offers a bribe

To say, that a law, which offers a bribe, is Constitutional, is to cast great reproach and insult upon the Constitution.

Now, that this law is guilty of bribery is too plain to need argument. Its bribery is open and shameless. In Bible language, it "declares its sin, as Sodom, and hides it not." And it is bribery, too, in behalf of the worst of causes and the worst of men. It is bribery for slavery against liberty. It is bribery for the slaveholder against the slave: for the rich against the poor: for the strong and influential against the weak and helpless. This law offers to the commissioner twice as much money, if he will go wrong, s if he will go right: twice as much, if he will favor the proud and oppressive, as if lie will show mercy to the sad and crushed; twice as much, if he will decide for the rich plaintiff, as for the poor defendant.

Where, where, in all the wide world, can another statute be found so infamous and infernal, as this?

My fourth position is, that the law is Unconstitutional, because it allows the, suits under it to be decided solely on affidavits.

These are suits at the common law: affidavits are unknown to the common law: and, yet, these suits are to be decided solely on affidavits!

A man is not suffered to lose his horse, or even his dog, on mere affidavits. How much less should he b e suffered to lose himself on mere affidavits! What a gross outrage on human rights to authorize a magistrate to sweep them all away by the force of mere affidavits ! - and how palpably does the law, which authorizes this gross outrage, violate the Constitution!

I will read an able authority to show how very inadequate and uncertain a means of arriving at the truth is an affidavit, compared with the presence of the witness, and his free examination by both parties.

Justice Livingston says: °' The right of cross examining is invaluable, and not to be broken in upon. How often is testimony, which, when first delivered, appears conclusive and irrefragable, entirely frittered away by this process! So much so, that a witness well sifted, not unfrequently proves more against than in favor of the party, that produces him. If one eye witness be worth more than ten ear witnesses [Pluris est oculatus testis

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unus quam auriti decem] a still higher value must be set on proofs made in presence of both parties, compared with exparte declarations. In one way, the whole truth comes out; in the other, no more than it may suit the witness or his friend to have disclosed. The not being under oath, although a serious objection, is not with me the greatest: because, admitting everything said to be true, so long as it is in the absence of one, and probably at the solicitation, of the other party, it should go for nothing." Johnson ii., 35.

My fifth position is, that the law is Unconstitutional, because it provides for disposing of the eases under it by exparte testimony.

The law provides for admitting testimony on the plaintiffs side only.It makes no provision whatever - not even by the slightest implication - for the reception of testimony, even rebutting testimony, from the defendant's side. Commissioner Morton of New York has been much blamed for refusing to hear testimony on the side of Horace Preston, whom he recently sent into slavery. Nevertheless, it must be admitted, that this refusal is fully justified by the law. It is in harmony with both its letter and spirit. Commissioner Morton was as good as the law. He showed what the law is.

This Unconstitutional feature of the law is all the more glaring from the fact, that the exparte testimony, for which the law provides, and which the law pronounces sufficient, is of the weakest kind-being mere affidavits.

I said, that the law makes no provision for receiving testimony on the defendant's side. Not only is this so, but it does, in effect, ay, and even expressly also, exclude testimony on his side.1st. It does, in effect, exclude such testimony, by the "summary manner," in which the law requires the case to be disposed of. The plaintiff may take months to prepare for trial. But the defendant is not entitled to a moment. To the rich and strong and oppressive plaintiff the law accords all this advantage. But from the poor and helpless defendant the law withholds it. Toward°that wronged and wretched one its heart is as hard and unyielding as adamant. 2d. It expressly excludes testimony on the defendant's side, by expressly excluding his testimony. But is not a defendant as worthy of belief as a plaintiff? Is not the oath of the servant as good as the oath of the master? Is not the oath of the ignorant man as good as the oath of the learned man? Is not the oath of the poor man as good as the oath of the rich man ? What a distinction is this to - set up in a republican and chastfan land! - a land of republican and christian equality!

"A case in law or equity," says the S. C. of the U. S., "consists of the right of one party, as well as the other." Wheaton vi, 379:

Lysander Spooner asks: What is this "right" which is at the same time the right of one party, as well as of the other?" It cannot be a right to

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the thing in controversy; because that can be the right of but one of them. The "right," therefore, that belongs to "one party as well as the other," can be nothing less than the equal right of each party to produce all the evidence naturally applicable to sustain his own claim, and defeat that of his adversary; to have that evidence weighed impartially by the tribunal that is to decide upon the facts proved by it; and then to have the law applicable to those facts applied to the determination of the controversy.

Is it said, that the commissioner may allow testimony on the defendant's side? He certainly cannot, without violating the spirit, tenor, and purpose of the law. What, however, if he could? No thanks to the law for it. The law does not oblige him to do so: - and if he does so, it is of his own mere favor and grace.

How does this trial of a man for his liberty by mere exparte testimony agree with the great Constitutional protection: "No man shall be deprived of his life, liberty, or property, without due process of law?" Perhaps, it will be said, that the slave is not a party to the Constitution; and that, hence, this great Constitutional protection is not vouchsafed to him. We will see, under another head, that the slave is a party to the Constitution, and that all, who were permanent inhabitants of this land, at the time the Constitution was adopted, were parties to it. Admit, however, that the slave is not a party to the Constitution, and is not entitled to protection under it. Why, however, should such admission exclude from this protection the person, who is claimed as a slave? The very thing to be proved is whether he is a slave: and, surely, therefore, this very thing should not be assumed. As the person arraigned for crime is to be held to be innocent, until he is proved to be guilty; so the person, arraigned as a slave, should be held to be a freeman, until he is proved to be a slave. Now, to assume, that the person, seized as a slave, is a slave; and, then, on the strength of this assumption, to deny him, when on trial, the safeguards, which the Constitution provides, is a glaring and revolting specimen of that circular logic, which is entitled to produce no conviction, save that of its own folly and absurdity.

My sixth position is, that the law is Unconstitutional, because it vests judicial power in State Courts.

It does this in the face of various decisions of the S. C. of the U. States and other courts. I will quote from a few of these decisions.

"If, then, it is a duty of Congress to vest the judicial power of the U. States, it is a duty to vest the whole of it. * * * Congress cannot vest any portion of the judicial power of the U. States, except in Courts ordained and established by itself. * * * Congress have legislated upon the supposition, that, in all the eases, to which the judicial powers of the U. States extended, they might rightfully vest exclusive jurisdiction in their own Courts." Wheaton 1: 330-337.

Chief Justice Spencer, in delivering the Opinion of the S. C. of the State

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of N. York, concurs emphatically with the S. C. of the U. States in the case, which I have just quoted. Johnson xvii: 4.

"The State Courts are not ordained, nor established, by Congress, and are not amenable to that body. The judiciary of a State is a constituent part of another and an independent sovereignty, from which they receive their authority and support, whose laws they are bound to execute. But they are under no such obligations to the U. States, whose laws they are bound to obey as citizens, but not to execute as magistrates." Connecticut Reports vii: 243.

The law is grossly Unconstitutional in this respect, inasmuch as it makes the action of the State Court mandatory and conclusive upon the Federal Court on two of the three points to be established, and sufficient on the third point also, if but the Federal Court shall acquiesce in the sufficiency. Let it not be said, that the action of the Southern judge is ministerial rather than judicial. It is emphatically judicial. He is a judge in the case. He does not take testimony to be passed upon by, or to satisfy, the Northern judge; but to be passed upon by, and to satisfy himself; and his satisfaction is, as we have seen, sufficient and final on two of the three points in the case.

My seventh position is, that the law is Unconstitutional, because of its interference of the legislative with the judicial department of Government.

The law is guilty of this interference in enjoining "a summary manner" of trial, and in prescribing a poor kind and a small amount of evidence.

"The judicial is a branch of the government co-ordinate with the legislative and executive. Justice Story, speaking of the 3d Article of the Constitution, says: "It is the voice of the whole American people, solemnly declared, in establishing one great department of that government, which was, in many respects, national, and, in all, supreme." Wheaton 1: 328.

The legislature is to make the laws: but it does not follow, that it is authorized to control the judicial administration of them. What if the legislature has, hitherto, been allowed to encroach upon the judicial? It is not, therefore, to be allowed to continue its encroachments. Prescription cannot be justly claimed for them.

In no respect should the legislative be allowed to override the judicial least of all, in respect to the kind and amount of the evidence - the evidence being so vital a part of the lawsuit. Again, if in one class of cases, the legislature may dictate to the judiciary to receive testimony on one side only, why may it not do so in cases of every class? And, if it may dictate so far, why may it not forbid all testimony ?

Suppose Congress should be disposed to arm itself with despotic power, and should, to this end, enact laws in palpable violation of the Constitution. Suppose, farther, that in order to prevent the judiciary from declaring such laws Unconstitutional, it should enact, that the only testimony, on which the judiciary may declare a law Unconstitutional, is the confession of

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the members of Congress, that they knew the law to be Unconstitutional, when they voted for it. I ask, would not that be an encroachment of the legislative upon the judicial? All would admit it. Nevertheless, would that liberty of the legislative with the judicial exceed the liberty, which has been taken in the present case ?

Is it said, that the lawmaking power may regulate the judicial administration of the laws? But, if it may regulate it, it does not follow, that it may annihilate it. To regulate is one thing. To annihilate is another, and a very different thing. But for the legislative to claim the right to dispose, as it will, of the evidence in the case, is virtually to claim the right to annihilate the judicial administration of the laws.

It is high time, that the American judiciary had asserted its independence of the legislature, and its equality with it. It is high time, that it had set its foot down against the encroachments of the legislature. An independent, self-respecting, incorrupt, and incorruptible judiciary, is a nation's safety and glory. But a servile judiciary - a judiciary, which allows itself to be moulded at the will of the legislature, is a nation's curse and disgrace.

If we must part with the legislature or judiciary, it had better be the former. Instead of consenting to the virtual annihilation of the judiciary, we might rather be looking forward to the day, when, under a higher and holier civilization, the legislature, instead of the judiciary, may, as in the Jewish Theocracy, be dispensed with.

My eighth position is, that the law is Unconstitutional, because it requires no testimony.

I have shown, that the law provides, that the case may be wholly disposed of on affidavits: - and I have, also, shown, that it provides, that it may be wholly disposed of on exparte testimony - and, that too, of the weakest kind, mere affidavits. But I will, now, show, that the law provides, that the case may be wholly disposed of, without testimony of any kind. I asked, under my last head, why, if the legislature could require the judiciary to receive testimony on but one side, it might not require it to receive no testimony at all. But it turns out, that the legislative has already encroached to this extent upon the judicial.

This law provides, that the commissioner may dispose of the case wholly on the transcript laid before him. But the transcript and the record, from which it is copied, are utterly void, for the reason, that the State judge could have had no authority to act in the case - Congress not being able to vest judicial power in him.

These transcripts, which come up from the South, are of no more legal value than so many pieces of blank paper. As well may our State judges exercise their judicial powers in behalf of the Government of China, as in behalf of the Federal Government. In neither case could the exercise have

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any legal effect. The proceedings before the State judge might be ever so full of perjury, and yet no prosecution for perjury could be sustained. The State judge, having no jurisdiction in the case, could not administer a valid and responsible oath.

My ninth position is, that the law is Unconstitutional, because it fixes the compensation for the loss of the servant at the same sum in all cases.

It cannot be pretended, that such extreme unreasonableness is demanded by the Constitution: and if it is not, then it makes the law Unconstitutional.

This invariable compensation is one thousand dollars. Is it a slave, worth two thousand dollars; whose escape is aided? - the master can get but one thousand dollars .Is it an aged and worn out slave, not worth ten dollars, whose escape is aided? - the master gels one thousand dollars. Is it an apprentice, whose escape is aided, and the remaining time of whose apprenticeship is not worth fifty dollars? - the master gets one thousand dollars. Is the person, whose escape is aided, one, who owes but a month's, or a week's, or a day's labor? - his employer gets one thousand dollars.

Is it said, that the Constitutional clause in question applies to slaves only? I answer, that, whether it does or does not, apply to slaves, it certainly applies to free laborers. Indeed, fugitive apprentices have been returned under this law. Daniel Webster, in his speech at Buffalo, May 22, 1851, says- "The Constitution was formed, established, and adopted in New York by your ancestors. It contained provisions for the security of those, who hold others by the right of service. It provided that, in case they escaped from such service, they should be returned. This was the common practice before. Slaves escaping from Virginia into Massachusetts were to be returned. In the North there had been a grand system of apprenticeship, to which this applied as well. This led to a clear, express, unmisunderstandable provision in the Constitution for the return of fugitives."I am aware of the claim, that this provision can apply only to slaves and apprentices, and not to hired persons. But the claim is without foundation. What, if it is contrary to statute law, or common law, or any and all usage, to deliver up a hired person? This avails nothing against the declaration of the Constitution. The Constitution was not shaped to run in the grooves of statute law, or common law, or any usage whatever. It is paramount to them all! And, if the Constitution provides, that the man, who owes but a day's labor, or but a sixpence, shall be delivered up, then, whatever else to the contrary, he must be delivered up.

But, perhaps, it will be said, that, vindictive, or exemplary, damages, or in more vulgar language, smart money, is due, in all cases, where the escape is aided. What? in addition to a fair compensation for the loss of the servant, and in addition, also, to the heavy penalties of the public prosecution?

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Is it right to imprison a man for six months, and to make him pay two thousand dollars, besides costs, for no other offence than humanely helping a poor abused apprentice to escape from his cruel master?

Is it not a fact, however, that the courts are getting sick of this doctrine of smart money? - a doctrine, which, I believe, can be traced to no more honorable parentage than the infamous Jeffreys.

My tenth position is, that the law is Unconstitutional, because in the public, or criminal, prosecutions under it, it allows the court no wider range for fixing upon the appropriate penalty.

In every case of conviction, as well where the testimony is scanty, as where it is abundant; as well where the conviction is for the most remote, indirect; and minute agency, as where it is for direct, overt, and most comprehensive acts; and as well where it is for the lowest, as for the highest, grade of the offence; the penalty is fine and imprisonment - not fine or imprisonment; and the court way, of course, order the imprisonment to continue, until the fine is paid. It must be remembered, too, that, in no case, where the conviction is for offences specified in the law of 1793, can the fine be less than five hundred dollars; - for this is the invariable fine imposed by that law; - and the laws of 1793 and 1850 make but one law - the latter being but supplementary to the former. That, in such case, each law stands, and is in full force, so far as it is not contradicted by the other, is a principle with which all lawyers are familiar. Blackstone recognizes it in the third section of his first volume.

My eleventh position is, that the law is Unconstitutional, because it extends to matters entirely beyond and foreign to the Constitutional clause, which it purports to carry out.

For instance, the Constitutional clause requires only the delivering up of the fugitive: - but the law provides, that he may be taken back, at the expense of the nation, to the State or Territory, from which he escaped. The Constitution leaves the master to take back his servant, without help, or with the help of the neighbors and friends, whom he may have brought with him. But the law provides the master with a national guard to escort the servant; it may be, from Maine to Texas; and at an expense to "the treasury of the U. States" of thousands. of dollars.

Again, the Constitutional clause provides for cases of escape to and from a State only: - but the law extends to escapes to and from Territories, and from the District of Columbia.

Is it said, that the Constitutional clause should be interpreted liberally? I answer, that every constitution and every law should be interpreted liberally in behalf of justice and liberty - but strictly against injustice and slavery.

Possibly, it may be argued on this occasion; that our Territories and the District of Columbia are, each of them, a State. I admit, that they are, in

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the sense, in which the word is used by writers on the laws of nations but I deny, that they are in the sense, in which the word is used in the Constitution.

Kent says, at page 424, vol. 1st of 7th Ed. of his Commentaries: "Neither the District, nor a Territory, is a State within the meaning of the Constitution, nor entitled to claim the priveleges secured to the members of the Union. This has been so adjudged by the S. C. in the case of Hepburn and Dundas against Elizey, 2d Cranch 445, and also in the case of New Orleans against Winter, lst Wheaton 91." In the latter of these cases, C. J. Marshall, who delivered the Opinion of the court, says: "Neither of them (that is the District of Columbia or a Territory) is a State, in the sense, in which that term is used in the Constitution." In the former case, C. J. Marshall, who delivered the Opinion of the court, says:"It becomes necessary to inquire, whether Columbia is a State in the sense of that instrument. The result of that examination is a conviction, that the members of the American Confederacy only are the States contemplated in the Constitution.

The House of Representatives is to be composed of members chosen by the people of the several States, and each State shall have, at least, one representative."

The Senate of the United States shall be composed of two Senators from each State.

Each State shall appoint for the election of the Executive a number of electors equal to its whole number of Senators and Representatives.

These clauses show, that the word State is used in the Constitution as designating a member of the Union, and excludes from the term the signification attached to it by writers on the laws of nations.

It was decided in the same case, that a citizen of the District of Columbia cannot maintain a suit in a Circuit Court of the U. States. And in the suit of N. Orleans against Winter, the Court says: "this opinion (respecting incompetency to maintain a suit, &c.) is retained."

My twelfth position is, that the law is Unconstitutional, because it recognizes the Constitutionality of slavery in the Territories.

There cannot be slavery in the Territories - for the Territories are under the exclusive control of Congress; and Congress is under the exclusive control of the Constitution; and the Constitution is such, that slavery can neither be set up, nor suffered, under it. The institutions of a Territory must harmonize with the Constitution. So far, as they are repugnant to it, they are destitute of legal force.

At the page referred to, under my last head, Bent says:"Congress have supreme power in the government of the Territories." C. J. Marshall says: "All admit the Constitutionality of a Territory."Wheaton iv. 4:32.

My thirteenth position is, that the law is Unconstitutional, because it recognizes the Constitutionality of slavery in the District of Columbia.

No intelligent person believes, that Congress has the right to set up slavery in the District of Columbia, or, indeed, any where else. It has been

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well said: "Congress can no more make a slave than a king." Surely, the right to set up slavery cannot be derived from a Constitution, which declares that one of its objects is "to establish justice and to secure the blessings of liberty;" and which also declares, that "no person shall be deprived of life, liberty, or property, without due process of law" - meaning, as is manifest, judicial process. The consequences of conceding the right of Congress to set up slavery in the District of Columbia, would be numerous, startling, and revolting. If Congress has this right, then, according to the words of the Constitutional clause, which respects the District of Columbia, it has, also, the right to set up slavery in every place, and on every spot of ground, which the General Government has purchased, or may yet purchase, with the consent of the Legislature of a State .It may set up slavery, not only in the Forts of our State, as, for instance, in the Forts at Oswego and Buffalo, but in all the Post Offices and Court Houses belonging to the General Government. Chained, and whipped, and branded, and mutilated slaves may be employed in the Post Office of this city of Syracuse to receive and deliver letters and papers.

But, notwithstanding the notion, that Congress has the right to set up slavery in the District of Columbia, is confessedly preposterous, it is, nevertheless, claimed that the slavery, which pollutes that District, has a rightful and Constitutional existence. It is so claimed on the ground, that it is Virginia and Maryland slavery. But this claim is sheer nonsense. The laws of the States have no more power in the District than they have in Russia. The legislation of the District is vested exclusively in Congress; and slavery in the District exists simply by the force of Congressional legislation. This exclusive vesting of such legislation was strenuously objected to, in some quarters, at the time of the adoption of the Constitution. In the Virginia Convention, which passed upon the Constitution, it was protested against by such men as Grayson, Mason, and Patrick Henry. Henry called the authority and power over the District given by the Constitution to Congress, "illimitable authority," "unlimited power." Indeed, that Convention went so far, as to propose an amendment to the Constitution limiting the power of Congress over the District " to such regulations, as respect the police and good government thereof." And it must be borne in mind, that it was before Virginia and Maryland ceded their respective portions of the District, that this amendment was rejected; and that, hence, their cessions were made in the light of the interpretation, which the American people did, by that rejection, put upon the clause of the Constitution, which respects the District of Columbia.

But, it is said, that Virginia and Maryland ceded the territory with the condition, that slavery should not be disturbed therein. In answer to this we say, that no such condition was expressed; and that, if it had been, it

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would have availed nothing. The paramount words of the Constitution would have made the condition nugatory. Those words governed Virginia and Maryland in making, as well as Congress in accepting, the cessions. The Constitutional clause in question was the mould, and the only mould which could give form and features to the cessions. And that the cessions were made, as well as accepted, under the Constitution, was virtually acknowledged by both Virginia and Maryland; - for in the laws, by which they made the cessions, they declared, that they made them "in pursuance of " the Constitutional clause in question. It is true, that there is in the Virginia law a vague proviso - not touching, however, nor, as far as I can see, aiming to touch, the question of slavery. But for the reason I have already given - that is, for the reason of the controlling language of the Constitution - this proviso is entirely void; and what it means can, in no event, be of any possible consequence. But, in reality, it was not necessary for me to say one word on this point. For that part of the district, ceded by Virginia, has been retroceded, and is, again, a part of Virginia. And, inasmuch, as the retrocession took place before the fugitive servant law of 1850 was enacted, it follows, that the District of Columbia does, in the eye of this law, consist solely of the cession made by Maryland - a cession made without any proviso or reservation whatever. There is, then, not the least possible ground for claiming, that slavery in the district of Columbia is Constitutional; - and, hence, the fugitive servant law of 1850 is necessarily Unconstitutional.

Possibly, it will be said, that this law of 1850 does not refer to slaves but only to free laborers: and that, hence, as there are free laborers, as well in the District as in the States, the law is not rendered Unconstitutional by its mention of the District. To this objection I would reply: 1st. The clause in the Constitution does not mention, the District; and, hence, the law had no right to mention it; and is Unconstitutional for having mentioned it. Moreover, the District, not being mentioned in the clause, the clause does not refer even to free laborers in the District.2d. If the clause does not refer to slaves, then, as I have shown under a former head, its penalties are so enormous in all cases, as to render the law Unconstitutional. 3d. If the law does not refer to slaves, then, as I shall show, under a future head, the law, however Constitutional it may be, leaves the prisoner necessarily and nakedly a kidnapper.

It may, also, be said, that if the law is Unconstitutional in providing for escapes from the District, nevertheless, the whole law is not violated thereby, but remains in force, so far as it respects escapes to and from States.

It may be right, in ordinary cases, to retain so much of a law, as can operate Constitutionally ; and to fling away only the remainder. But, where, as in the present case, the Unconstitutional feature is one, that

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outrages human rights; and insults the cause of freedom, there the honor of the Statute Book, and the safety and honor of man require the indignant flinging away of the whole law. We are to read this law, just as if it called on the marshal, in terms, to obey and serve a precept for enslaving freemen of the District of Columbia - and if freemen of the District, then, just as well, freemen of Massachusetts. But, if this plain and proper translation of this absurd and infamous law be adopted, what judge would, then, hesitate to turn his back upon the whole law?

Again, should a law be retained upon the Statute book, which requires the minister or executer of the law to do, and that, too, under a heavy penalty, what he will be Constitutionally, and severely punishable, for doing? Now, this law tells the marshal to seize for enslavement a freeman of the District of Columbia - and to do so, or pay one thousand dollars; whilst, at the same time, a Constitutional law of the State of New York rings in his ears, that if he obeys this Unconstitutional law of Congress, he shall be fined and sent to State Prison.

I might, in my argument, have classed the Territories with the Districts, inasmuch as the marshal would be equally punishable for arresting, as slaves, fugitives from a Territory.

My fourteenth position is, that the law is Unconstitutional, because it undertakes to suspend the writ of Habeas Corpus.

I have read the argument, which the Attorney General of the U. S. made to persuade the President of the U. S., that the law is not Unconstitutional, in this respect. His reasons for concluding, that the law does not forbid the writ of Habeas Corpus (among which reasons are, 1st, that to forbid it would violate the Constitution; and 2d, that such violation should not be imputed to Congress!) are quite too flimsy for so high a functionary to employ.

What mean the two lines, at the close of the sixth section of this law "And shall prevent all molestation of said person or persons by any process issued by any court, judge, magistrate, or other person whomsoever?" If they do not mean to shut out the writ of Habeas Corpus, then what do they mean? The Attorney General says, that they "probably" mean only what the act of 1793 means, by declaring a certificate under that Act a sufficient warrant for the removal of a fugitive. But I wonder at his having the face to say so; for the two previous lines have this meaning. Of course, then, the two last lines mean something else. If they do not, then they are mere surplusage: and the imputation of surplusage to a law must be avoided, if possible. What, however, is this something else, if it is not the suspension of the writ of Habeas Corpus?

But, is it a violent supposition, that a law, which disposes of one's right to his liberty for life - to his manhood for life - in a summary manner," by

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exparte testimony, and even by no testimony - I ask, is it a violent supposition, that such a law would not stop short of suspending the Habeas Corpus, in order to carry out its despotism?

To say the least, it is not certain, that this law does not deny the habeas corpus. Many able judges and lawyers have no doubt, that it does. Even the President of the United States had the suspicion, that it does - a suspicion so strong, that it required the Attorney General of the United States to remove it. Would it be strange, then, if, in such circumstances, there should be found, here and there, and now and then, a Judge ready to refuse this writ, and to suffer his fellow man to be plunged into slavery, without further investigation? Now, if a law is so framed, as to make it but uncertain, in the eyes of many able lawyers and judges, whether it preserves the writ of habeas corpus, it should be held to be Unconstitutional and void for uncertainty. There should be no suffering of uncertainty in regard to the preservation of that writ, which Blackstone so well calls "the most celebrated writ of England and the chief bulwark of the Constitution." Is there a law, which makes it uncertain whether a particular crime is to be punished by fine or imprisonment? Who would deny, that such a law is void for uncertainty? But why is such a law void any more than a law, which leaves it uncertain whether it acknowledges or denies the great writ of Habeas Corpus?

It is sometimes said, that we are not to be concerned to have this law declared Unconstitutional, even if it does forbid the writ of Habeas Corpus; for the Constitution, being paramount, will prevail against it at this Unconstitutional point.But, if this is a good reason for not declaring this law Unconstitutional, an equally good reason is it for not declaring any law Unconstitutional.

My fifteenth position is, that the law is Unconstitutional, for the reason, that Congress has no right to legislate upon the subject.

The Constitutional clause respecting fugitives from service was taken from the Ordinance of 1787. No one pretends, that, as a part of the Ordinance, it conferred any power on the Government. Why, then, should it be regarded as standing in a different relation in the Constitution?

This clause is found in the Constitution, in connection with three clauses, which were taken from the Articles of Confederation. No one pretends, that these three clauses conferred any power on the Government. All four of the clauses [article 4, sections 1 and 2,] are clauses of compact between the States, and they depend for their observance solely on the good faith of the States. Indeed, the Ordinance of '87 does itself call this clause a clause of compact. Its words concerning its six articles, of which this is one, are, that they shall be "a compact between the original States and the people and States in the said Territory, and forever remain unalterable, except by common consent."

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Nathan Dane, of .Massachusetts, framed the Ordinance of '87.Where did he find this provision respecting fugitive servants? He copied it from an old clause of compact - as old as 1642 -between Massachusetts and the other Colonies around her.

On one of these four clauses of the Constitution, Congress has the right to legislate, for that clause contains an express grant of power to legislate. That such grant of power is lacking in the three other clauses, implies, irresistibly, that upon them Congress has no right to legislate. Is it said, that such grant is to be inferred in the case of the three clauses? Then, might it have been inferred in the case of the other clause also; and then the expression of it in that ease is mere surplusage; and so, also, in that case, is the expression of such power, at the close of the 9th section of the 1st article of the Constitution.

It can be seen, at a glance, that, in the case of this clause, where power to legislate is given to Congress, it is in the very nature of the case indispensable, that such power should be given. But not so in the case of the three other clauses. In this case, where power to legislate is granted to Congress, State legislation would not suffice. There must be national legislation in this case, for it would not be competent for a State to direct in what manner its own public acts, records and judicial proceedings should be authenticated in another State. Each State (the rule of evidence being lex loci) might require a different mode of authentication. Hence, there must be a uniform mode of authentication in all of the States - that is, a mode determined by Congress. The necessity for Congressional legislation, in the case of this clause, is the reason, in the judgment of C. J. Hornblower, why this clause was put in a section by itself, and not in the same section with the three other clauses.[State of New Jersey vs. Sheriff of Burlington, 1836.]

But Congress has legislated, not only in regard to the clause, in which it has the right to legislate, but in regard to two of the other three clauses. Why, then, in the name of consistency, has it not legislated in regard to the remaining clause also - the clause assuring the citizens of each State of their rights in the several States? The only answer is, that the slave power tramples upon this clause, and forbids Congress to give force to it.

It is only, however, in the case of the fugitive servant clause, that Congress claims, that any one of these four clauses is to be carried out by other than State action. The law of Congress, in the case of the clause respect ing fugitives from justice, is, indeed, a usurpation of power. Nevertheless, as it virtually disclaims all right on the part of the Federal Government, and virtually recognizes all right on the part of the State Government, to do what the clause requires to be done, the usurpation is not so much to be regretted.

When, in the Convention, which framed the Constitution, it was proposed

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to insert a clause respecting fugitive slaves, the proposition was to have them "delivered up like criminals" - that is, by State action. [Madison Papers 111: 1447.] Not one line, whether of public or of private records, has ever been produced to show, that in 1787, when the Constitution was framed, or that in 1789, when it was adopted, any person believed, that the clause contains a grant of power, or is any thing else than a compact between the States.

I repeat what I have said: these four clauses (and the fugitive servant clause as much as the others) bind the good faith of the States; but, in no event, do they impose any obligations on the General Government, save to the extent of the special grant in the case of one of the clauses. If the States are guilty of delinquency in respect to these clauses, I know of no remedy for it in the hands of the General Government. That Federal power may be used to supply the delinquencies on the part of the States, is a doctrine leading directly to centralization, consolidation, and the subversion of the rights of the States.

Both of the fugitive-clauses require a delivering up. Now, Congress admits, that the delivering up, in one case, is to be by State action. Why then, Should it deny, that, in the other also, it is to be by State action. There is not one reason for this distinction; and but one shadow of a reason for it. This shadow of a reason is the prohibition contained in the clause. But this prohibition upon the State to enact a law, discharging the fugitive, is a prohibition of State action, at one point only. Prohibition, however, at one point, so far from implying prohibition at every other point, implies permission at every other point: Exceplio probat regulam is a maxim, which applies in this case. The prohibition on the State to legislate or net, in one respect, implies the right of the State to legislate or act, in every other respect. This prohibition is precisely analogous to the pro hibition upon the States to pass laws impairing the obligation of contracts. But none claim, that the prohibition, in the latter case, implies, that the State may not legislate at all, in regard to contracts. It implies the reverse. Whatever extent of State action, however, the prohibition, in either case may imply, certain it is, that, in neither case, does it imply the right, least of all the exclusive right, of the Federal Government to act in the premises.

But it is held, that the great questions connected with slavery are all settled by decisions of the S. C. of the U. S. - that they are fully and finally adjudicated - and are never more to be disturbed. I respect precedent. I would, to every reasonable extent, bow to it. I cheerfully admit the general proposition, that the decisions of the supreme judiciary are to be regarded

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as conclusive - at least, for many years. But I deny, that decisions of, any, even the highest, earthly tribunal against fundamental, unchangeable, eternal human rights are ever, even for one moment, to be regarded as final and unalterable. Most emphatically true is this, when such decisions are in favor of slavery, and of sweeping away (as slavery does,) all human rights, and converting immortal, God-like man into a brute and a thing. If the S. C. of the U. S. shall, at any time, feel itself bound, by its view of the requirements of the Constitution, to decide for slavery and for the annihilation of human rights, it is, to say the least, to decide so, very reluctantly; and it is, moreover, ever after its decision, to welcome every attempt, however speedily or frequently made, to inspire it with such views of the Constitution, as shall enable it, conscientiously, to reverse its decision.

But I should be disingenuous to stop here, and give no further reason against the conclusiveness of pro-slavery decisions of the S. C. of the U. States. Such decisions are, in my esteem, entitled to very little respect. Why should they be, when a majority of its members (oh shame to my country!) are themselves slaveholders? - do themselves defend the traffic in human flesh? Who would respect the decision of a Court against the Constitutionality of the "Maine law," were a majority of its members distillers? Not only is it true, that slaveholding blunts and warps the sense of natural justice; but it is also true. that, where slavery is the subject to be adjudicated, slaveholders will not do as well, as they might, even with that blunted and warped sense. They will perversely refuse to follow the guides, and submit themselves to the principles, of enlightened jurisprudence. A rare man, like John Marshall, may, to a great extent, rise above the influence of his circumstances and relations.

But, to return from this digression - where is it, that the S. C. has disposed of these great questions? In the Prigg case, is the reply. That is the case [Peters xvi.] relied on to sustain the proslavery constructions of the Constitution, and, especially, the position, that Congress has exclusive right to legislate on the fugitive servant clause of the Constitution. We will examine this case; and, I thinly, we shall find, that quite too much has been claimed for it ; and that it settles very little, if indeed any, of all, that it is supposed to settle.

Edward Prigg, of Maryland, was indicted and convicted in Pennsylvania. The case was brought by writ of error before the S. C. of the U. S. The record set forth the special verdict of the jury, and it also set forth the statute, which Prigg was convicted of violating. The statute is aimed against those, who shall remove a person from Pennsylvania, with "the intention and design of selling and disposing of, or of causing to be sold, or of keeping and detaining * * * * as a slave" the person so removed. But of this vital part of the statute the verdict says nothing. Justice Story

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in delivering the Opinion of the Court, says : "It (the statute) purports to punish, as a public offence against that State the very act of seizing and removing a slave by his master." He adds: "The special verdict finds this fact; and the State Courts have rendered judgment against the plaintiff in error upon that verdict." But what Justice Story says of "the statute is not true. It is for doing more than he says, that the statute purports to punish, &c."

We proceed in our examination of the case. The only question before the Court was, whether Prigg could seize and remove the person, without the aid of any legislation, whether of Congress, or of a State; or, in other words, without any process; or, in still other words, whether the fugitive servant clause is self-executing. On this only question before it, the Court stood eight for reversal, and one (Justice M'Lean) for affirmance. But, with the exception of Justice Baldwin, who confined himself to the case before it, the Court formally discussed, and formally passed on, other questions. Eight members of the Court held, that Congress may legislate on the clause in question. Five members of the Court (Justice M'Lean one of them) held that Congress has exclusive legislation in the case. Three members of the Court held, that the States have concurrent legislation. One of the three (C. J. Taney) said: "It, (the fugitive servant clause) contains no words prohibiting the several States from passing laws to enforce this right. They are, in express terms, forbidden to make any regulation, that shall impair it. But there the prohibition stops. And, according to the settled rules of construction for all written instruments, the prohibition being confined to laws injurious to the right, the power to pass laws to support and enforce it is necessarily implied."

In his speech in the Senate, March 7th 1850, Daniel Webster said, "I have always thought, that the Constitution addressed itself to the Legislatures of the States themselves, or to the States themselves. I have always been of the opinion that it was an injunction upon the States themselves. * * * The State itself, in obedience to the Constitution, shall cause him to be delivered up. That is my judgment. I have always entertained it, and I entertain it now."

Chancellor Walworth said: "I have looked in vain among the delegated powers of Congress for authority to legislate upon the subject" Wendell xiv., 522. The Chancellor spoke soundly -nevertheless, unfortunately for himself, as it turned out, when a judge of the S. C. of the U. S. was to be selected from the State of New York: and Judge Nelson, in the same case, in another Court (Wendell xii. 314), spoke unsoundly - though fortunately for himself, as it turned out, when this selection was to be made.

But the Opinion of the Court in the Prigg case should, to be consistent with itself, admit, that the States can legislate upon the clause in question. "None (no doubt)," says the Opinion, '° is entertained by this Court, that

C

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State magistrates may, if they choose, exercise that 'authority' "_i.e. delivering up slaves. Peters xvi. 622. But, "if State magistrates may, if they choose," act upon this clause, why, then, may not State Legislatures, also act upon it, "if they choose?" But the Court involved itself in utter absurdity, at this point. If the Federal Government only has jurisdiction of this clause, and so the Court (if the Court it was) maintains, then neither a State Legislature, nor a State magistrate, can act upon it. The Federal Government, in that cape, can no more look for action, or tolerate action, beyond its own sovereignty than could the State of New York permit magistrates on the Canada side of the frontier to participate in its judicial concerns. The judicial power of the Federal Government is vested in Federal officers only: and that Government can no more suffer such power to be shared in by judicial officers of another sovereignty than by military officers or private citizens."

Justice Story delivered the Opinion of the Court in the Prigg case. He discussed the extraneous questions as if they were all pertinent and material to the case; but if they were all pertinent and material to it, then I see not with what propriety it is held, that the judgment of Pennsylvania was reversed. For, not counting Justice McLean, there were but four of the nine Judges in favor of the position, that Congress only can legislate on the clause in question. On the other hand, if these questions, which I call extraneous, were not pertinent and material, then it follows, that the Prigg case, if indeed it has decided any thing, has, at the most, decided but one thing-the one thing, that the fugitive servant clause is self-executing, and may be carried into effect without the help of process. Whatever was said by the Court on other points was mere obiter dicta, and was, to no extent, an adjudication.

There is no right, then, to say, that the Prigg case decided, that Congress has exclusive or even concurrent legislation on the fugitive servant clause, and no right to say, that it decided the law of 1793 to be Constitutional. But, even had it decided the law of 1793 to be Constitutional, it would not follow, that the law of 1856 is thereby decided to be Constitutional; for the law of 1850 is far from being identical, either in its principles or provisions, with the law of 1793. The law of 1850 provides, that the fugitive be taken before a Federal magistrate only; but the law of 1793 provides, that he be taken before either a Federal or a State magistrate.

Perhaps, it will be said, that, in the case of Jones against Van Zandt, (Howard v. 216,) the Supreme Court of the United States decided the law of 1793 to be Constitutional. But the point was not argued nor examined. The Court, in common with the whole country, was under the mistaken impression, that the point had been decided in the Prigg case; and hence, the :Court referred to it as a settled adjudication. Of course, no authority nor

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precedent can grow out of a mistake, be the mistake in the Prigg case, or Van Zandt case, or both. But this mistake of the Court in the Van Zandt case should effectually warn all Courts of the danger of suffering their Opinions to range beyond the limits of the case before them.

Judge Woodbury in declaring the Opinion of the Court in the Van Zandt case, says: "This Court has already, after much deliberation, decided, that the act of February 12th, 1793, was not repugnant to the Constitution. The reasons for their Opinion are fully explained by Justice Story in Prigg vs. Penn., Peters xvi. 611." Again, Justice W. says: "That this act is not, repugnant to the Constitution must be considered, as among the settled adjudications."

My sixteenth position is, that the fugitive servant act of 1850 is Unconstitutional, because the Constitution is anti-slavery, and not pro-slavery.

But, after all, is this act pro-slavery ?Is it an act, for reducing persons to slavery? I admit, that it is not such upon the face of it. I admit, that it does not speak expressly and literally of slavery. Nay, I will, for the sake of the argument, admit, that the act is in no wise pro-slavery, and that, so far as slavery is concerned, it is Constitutional and valid law. I will go still farther and say, that it is, in all respects, good and sound law. But how can such admissions help the prisoner? It would be fatal to him to use them, for he confessedly treated the act as an act for slavery ; and, under it, he sought to sink poor Jerry into slavery. Hence, if the act is not an act for slavery, the prisoner stands before the Court, necessarily and nakedly, a kidnapper.

In order, then, for the prisoner to make even a show, even a beginning of defence, he is compelled to assume, that the act of Congress, which he was employed in enforcing, is an act for plunging persons into slavery; and moreover, that the act is authorized by the Constitution.

I have now, therefore, come to that stage in my argument, in which I shall undertake to show that the Federal Constitution sanctions no slavery, permits no slavery, knows no slavery. If I succeed in showing this, it, of course, follows that, whether my previous arguments are, or are not, sound, the fugitive servant act of 1850 is Unconstitutional and void.

[Mr. Smith spent a couple of hours in arguing the Unconstitutionality of slavery. He frequently quoted from his own published writings, and from those of Lysander Spooner. Whoever will be at the pains to read the little pamphlet entitled "Gerrit Smith's Constitutional Argument," and the large and incomparably more valuable pamphlet entitled "The Unconstitutionality of Slavery, by Lysander Spooner," will conceive a sufficiently just idea of the course and character of Mr. Smith's argument under this head.*]

*Mr. Spooner's pamphlet is for sale by Frederick Douglass, of Rochester, and by Bela Marsh, of Boston.

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My seventeenth and last position is, that the law is Unconstitutional, because the Constitutional clause, which it purports to carry out, does not refer to slaves.

Perhaps, it will be said, that the Supreme Court has decided, that this clause does refer to slaves. But if it has, then, for the reasons, which I gave under a former head, the decision should be kept ever open for reversal, and the Court should ever welcome every attempt to convince it, that such decision can, without violating the Constitution, be made to give place to a decision in harmony with everlasting righteousness.

When, however, did the Supreme Court decide., that this clause refers to slaves? When did the question ever come before that tribunal? Not in the Prigg case, nor in the Van Zandt case. In both these eases it was assumed, that the clause does refer to slaves.

If I succeeded, under my last head, in showing, that American slavery is Unconstitutional, then of course "the laws" referred to in this clause cannot be laws for slavery; for if the Constitution is anti-slavery, then there can. not be pro-slavery laws - then pro-slavery enactments cannot be laws. But I will admit, for the sake of the argument, that I failed to prove the Constitution to be anti-slavery. Nevertheless, the clause, which we are about to examine, is not to be regarded as pro-slavery, because some other, or even because every other, part of the Constitution is pro-slavery.

Had there been no slavery in the country, at the time the Constitution was adopted, and no prospect of there ever being any, this clause would still have been proper. Apprentices have been reclaimed under it, and fugitives from the various classes of free laborers can be. Indeed, the clause must be taken as referring to such. It cannot refer to slaves, for the fugitives in the clause are capable of owing, and slaves can no more owe than horses, or horse blocks. In the eye of the slave code, the slave is a mere chattel.

Another reason why the fugitive in this clause is not a slave, is, that he is there described as a person; and "no person," says the Constitution, "shall be deprived of life, liberty, or property, without due process of law." Another reason why the fugitive in this clause is not a slave, is, because he is held to service under the laws. But the laws no more hold a slave than an ox to labor. They admit and defend the owner's right of property in both ; but they no more compel the slave than the ox to perform labor. A person held to labor by the laws, is, surely, no definition of a slave.

Are the "laws" referred to in the clause only those laws, which were in existence at the time the Constitution was adopted, or do they include the laws, which might be enacted thereafter? Are they only the then existing laws? Then does analogy require us to interpret "State" in the clause as only a then existing State; and hence, here would be two reasons for cons eluding, that Jerry could not possibly come within the scope of this clause,

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for neither the laws of Missouri, nor the State of Missouri, were in existence, at the time the Constitution was adopted. But do "the laws" referred to mean future as well as present laws, and are they laws for slavery? Then it follows, that our fathers bound themselves and their posterity to treat, as slaves, whomsoever any of the States might thereafter enact to be slaves - white or black, good or bad, high or low. Then it follows, that we should be bound to seize and replunge into slavery the scores of white families, who have recently removed from this State to Virginia, should that State enact, that they are slaves, and should they, therefore, fly back to this State.

Another reason, why this clause of the Constitution cannot refer to slaves, is, that the Constitutional provision for the free exercise of religion forbids such reference. This provision does not mean every kind of religion. There is no room under it for a polygamy-religion-no room under it for a religion, which burns the wife to honor the memory of the husband. It means but the Christian religion - the religion of those, who adopted the Constitution. The mention of Sunday in the Constitution indicates this. What, then, is this free exercise of religion, which the Constitution secures to us? Is it liberty to hold what creed we will, and join what Church we will, and observe what forms of worship we will? It is infinitely more than this. It is liberty to be and do what Jesus Christ would have us be and do. It is, in a word, liberty to be and do what Jesus Christ, were he again on the earth, would again set us the example of being and doing. Would He chase down poor innocent men and women to enslave them? Horrid supposition! Blasphemous thought! But why more horrid, why more blasphemous, than that His disciples should do so? If the Constitution requires them to join in that diabolical chase, then it is idle to say, that the Constitution secures to them the free exercise of religion.

And now, are we willing to believe, that our fathers intended to make this whole land the slaveholders' hunting ground, and to require "all good citizens to aid and assist" in running down the innocent human prey? Are we willing to believe, that they were the most merciless of all men? We are wont to contrast the Christian with the Jewish code. Nevertheless, under the latter, the escaping servant was not to be returned to his master, but was allowed to choose his residence. Even the Spaniards were so merciful, as to exempt from reclamation those fugitive Moorish slaves, who were able to reach Grenada. But, under the pro-slavery construction of the Constitution, not so much as a Grenada is left to the American slave. Under that construction, it is held, that he may be pursued throughout our own nation, and into foreign nations also. In the year 1826, our Government had the audacity to propose, that the British and Mexican Governments should surrender the American slaves, who had fled to Canada and Mexico.

This clause of the Constitution is called one of the compromises of the Constitution; but there is not the slightest reason for calling it such. No

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reference whatever was made to the subject of this clause in any of the plans of a Constitution, which were submitted to the Convention. Indeed, it was not until twenty days before the close of the Convention, that this subject was introduced into it.

I said, that there is not the slightest reason for calling this clause a compromise. I meant, that there is not for pro-slavery men to call it such. There is, however, abundant reason, why anti-slavery men should give it this name. When the clause was first proposed, it had the word "slave" in it; but in that shape it was so strenuously opposed, that it was withdrawn. The next day, it was proposed again, but with the word "slave" struck out; and then every member of the Convention unhesitatingly acquiesced in it. The anti-slavery members of the Convention (and nearly all of the members were anti-slavery,) were willing, that the slaveholders should get from the clause, in its amended form, what they could get from it; and certain it is, that, neither in the light of the letter, nor history, of the clause, are they entitled to get aught from it.

Again - To call this clause a pro - slavery compromise, is to do so at the expense of stigmatizing the Convention with the rankest and most glaring hypocrisy; for we must remember, that it was not until after the adoption of this clause, that the Convention struck out from their agreed-upon form of Constitution the word "servitude," and unanimously inserted in its place the word "service" - and this, too, for the avowed reason, that "the former expresses the condition of slaves, and the latter the obligations of free persons."

My argument is ended. How came this grossly Unconstitutional law to be enacted? How came such able lawyers as Clay and Webster to favor its enactment? The solution is, that they acted in the case, not as lawyers, but as politicians. They had a compromise to make; and make it they must, and make it they did, at whatever expense to an oppressed and outraged race, and at whatever expense to their reputation as lawyers. Even a very great lawyer, when be has consented to merge the lawyer in the politician, can make sad havoc of law. For instance, Daniel Webster pronounced the escape of poor Shadrach of Boston, a treasonable act - a levying of war against the United States! - and that, too, though no weapon was seen, and no one hurt, and no one threatened with hurt! Again, in the Christiana case, the District Attorney was especially instructed by the Department of State "to ascertain whether the facts would make out the crime of treason against the United States, and, if so, to take prompt measures to secure all concerned for trial for that offence!"

I said, that my argument is ended. I need not consume more time in showing, that our fathers, who created the American Government, created it "to establish justice and secure the blessings of liberty," and not to be a gigantic slave-catcher, and to expend in slave-catching the contributions

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which honest toil is compelled to make to the national treasury. I need not add, that their willingness to have their Government and treasury put to such cruel and shameless and infamous uses, proves, that the American people have fallen down into very low depths of degeneracy and depravity.

This argument, with which I have so heavily taxed the patience of the Court, adds another to the very numerous efforts I have, during the last fifteen or twenty years, put forth to arrest the ruinous career of this nation. But, in all probability, it is now too late for any poor efforts of mine, or even fur the best efforts of the best men, to have any effect in arousing and saving this insane and guilty nation. In all probability, it will continue to drive on, heedless of warning and entreaty, until engulfed in destruction. There is but too much reason to fear, that the slave power has already achieved a fatal and final conquest over the understanding and heart of the American people. The American people have become so familiar with the stupendous crimes of that power, and so debauched by their long course of acquiescence in them, as no longer to be shocked by them, and, indeed, as no longer to discern them. They not only assent to this hideous and Heaven-defying law fur chasing down and enslaving Heaven's unoffending and guiltless poor, but they bestow most favor and honor upon those, who are most the champions and upholders of this law. And such blindness has come upon them, that of the still more cruel and murderous laws enacted, or about to be enacted, by this, that and the other State, they do not so much as take notice. The decision of the Supreme Court of the United States in the Prigg case, startled the nation. Not only, however, is the nation now reconciled to it, but it is regardless, and probably unaware, of the far greater lengths, which that Court has gone in its devotions to the bloody Moloch of slavery. Scarcely eighteen months have passed away, since that Court decided, in the case of Strader and others against Graham, that a State is at liberty to make slaves of freemen, and "has an undoubted right to determine the status, or domestic and social condition of the person domiciled within its territory." Pro-slavery decisions and pro-slavery laws are weaving a strong net-work around the American people, which will leave them bound and helpless at the feet of the slave power. Nevertheless, they remain entirely unconscious of the encroachments upon their rights-entirely unconscious of the invasions of those great and immutable principles, on which all their rights are founded.

This doctrine of the Supreme Court of the United States, that rights the most cherished and sacred, the most essential and vital, stand but in the concessions and uncertainties of human legislation, is a legitimate outgrowth of slavery. This doctrine, in other words, is, that there are no natural rights. Slavery is a war upon nature, and is the devourer of the rights of nature; and wherever, as in this country, it is in the ascendant, all rights

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and all interests, conventional as well as natural, accommodate themselves to its demands. The doctrine of natural rights, if it can live at all in a country, which cherishes slavery, nevertheless cannot have an extensively influential and practical existence in it. In this country, it is reduced to a more theory or speculation; and never can it be more, so long, as we admit that enactments for the destruction of natural rights are laws--valid, obligatory laws.

It may be too late for America to learn the lesson - nevertheless, it is a lesson of truth, and of unspeakably important truth, that no people can be secure in their rights any further than they believe, that their rights are derived from God; nor any further than they believe, that laws to be valid and obligatory, must be laws for the protection, instead of the destruction, of rights.

ARGUMENT OF S. D. DILLAYE.

If your Honor please, I shall neither attempt, sir, to imitate the eloquence nor expect to display the ability of the gentleman who has just taken his seat.

The question to be discussed is, whether an officer, pursuing his duty under the laws of the United States, and following out solely those directions and obligations imposed upon him, is, by doing so, to subject himself to the doom and fate of a felon.

The prisoner at the bar is arraigned for trial under an indictment charging him with the crime of kidnapping according to the provisions of the act of 1840.

The prisoner does not deny the taking of the man Jerry, as charged in the indictment; but he alleges that he is an officer of the Government of the United States, and was at the time of the taking of said Jerry; "that he had lawful authority to forcibly seize and confine said Jerry," according to the laws of the United States.

The legality of this authority is, if your Honor please, the question now before you for adjudication.

It is not disputed that a law was passed in 1793, which in its provisions made regulations for the capture and retaking of fugitives from service nor that that law had immediately in view a direct and speedy remedy for the recapture of slaves escaping from one State into another, under that provision of the Federal Constitution which provides that "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."

It is well known that the law of 1793 failed, mainly because it imposed the duty of trying or certifying, whether the individual claimed as a slave was prima facie a slave, upon Justices of the Peace not legitimately and legally compelled to sit in judgment; for it was early decided in State tribunals, that the Constitution afforded no authority for the vesting of judicial power in officers either appointed by the State or by the General Government for other than judicial purposes; and these State decisions upon the Constitution were followed up in 1816 by the case of Martin vs. Hunter, I Wheaton R. 330, in which the Supreme Court of the United States decided "that Congress could not vest any portion of the judicial power of the United States except in Courts ordained and established by itself;" that to

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ordain and establish, meant to create; and that as a consequence Congress could not vest any new jurisdiction in State Courts - but that the whole judicial power of the United States should be, at all times, vested in an original or appellate form, in some Courts created under its authority.

That State Courts were not so created, was too palpable for an argument, And thus this law, made to depend for its force upon officers not compelled to act, failed to accomplish the end for which it was enacted. Not only this, but State Legislatures absolutely prohibited State officers from carrying the law into effect.

The South, as we shall claim, having constitutional rights which were violated, demanded the amendment of the laws of 1793, and that demand resulted in the passage by both Houses of Congress of the act known as the Fugitive Slave Law.

It is, if your Honor please, by virtue of this law that the prisoner at the bar, in an official capacity, by direction and authority of a warrant issued to him by a regularly appointed commissioner of the United States Court, seized the man Jerry as a fugitive from service and labor, to deliver him up to the party claiming his services.

And the main question now to be argued is, whether that Fugitive Slave Law is constitutional, and can confer lawful authority, by the exercise of its provisions, upon the prisoner at the bar, for the execution of the process by which Jerry was arrested.

I shall attempt, sir, to show you what I believe is admitted by 99 out of every 100 individuals in this Republic - that that law is constitutional. But to do this, I must ask the indulgence of your Honor while I examine the progress and development of slavery; for it would, under ordinary circumstances, seem to be a wilful waste of time to go into the examination of a question so identified with our history, that no one can be guilty of ignorance, so entertwined in the formation of the Constitution, and so blended in the progress of our legislation, that to question it is to question the reality of our national existence. But, sir, a kind of philanthropy - it is not for me to say whether spurious or real - whether fostered in political ambition or political recklessness - whether founded in christian zeal or christian intolerance - whether springing from that enlarged and glorious love of country which animated Washington to found a Republic, or from that insidious policy which, seeing an end, can stride over states, constitution, civil war, blood, and civil hatred, to arrive at an end, which but required the calm of reason and the quiet of brotherly love, it is not for me to say. But, sir, seeing here one to whose voice Senates and States have listened as to an oracle of eloquence - whose tongue is touched not only with the honey of persuasion, but with a power of utterance as resistless as the music of that cataract which immortalizes our frontier - who has come here, sir, gravely to question in the tribunals of Justice the validity and constitutionality of

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this act. I feel myself justified, sir, in fortifying the prisoner at the bar, whose crime it is to have performed the duty assigned him by his country and the laws of the land, in the fortress of the Constitution, in the facts of history, in the legislation of Congress, and in the known strength of public opinion.

Let us, then, proceed first to inquire, sir, where and when slavery had its commencement.

Slavery and the slave trade are older than the records of human society. They have extended to every quarter of the globe. Egyptian history is a perpetual monument of its existence. The founder of the Jewish nation was a holder of and dealer in slaves. The Hebrews carried slavery with them beyond the desert, and as an eminent historian has said, "The light that broke from Sinai scattered the corrupting illusions of polytheism; but slavery planted itself even on the borders of Siloa, near the oracles of God." It existed in the country about Palestine - was common at Babylon and Tyre, and Phoenicia was a market for the persons of men.

Old as are the traditions of Greece, the existence of slavery is older. As in Greece so it was at Rome - slavery seemed to be an indispensable element in the political organization of their republics. It existed in Germany, and had root in France; it was an element of Venitian commerce, and an early incentive to gain between the Christian and Moors.

Slave markets have darkened the history of the whole world. African slavery had been reduced to a system before Columbus opened the path to the new world; reduced to a system by the Moors, it had spread from the native regions of Ethiopia to the heart of Egypt on the one hand, and the coast of Barbary on the other.

But the danger for America did not commence nor end here. The traffic of Europeans in negro slaves was fully established before the colonization