|Welcome to the
These are by Robert Rantoul, Jr., elected a Representative 4 March 1851, previously a Senator, from Massachusetts.
Rantoul (1805-1852) was presenting (at the then pre-1851-election convention) certain abolitionist points against the Fugitive Slave Law of 1850.
The South, also known as the 'Slave Power,' modern term, "Big Slavery," ruled Congress and the White House and thus the nation.
Slavers demanded "tort reform," lawsuit control, to obstruct the "little guy" having rights against them.
A compliant US Congress and President complied, passed "tort reform."
This "tort reform" changed court focus from hearing both sides impartially, to a more pro-'Big Business,' pro-slavery stance.
In addition, slavers were expansionist geographically, were advocating enslaving whites, and including incidents involving white women.
All these facts in combination terrified Northerners, that their liberties too were in danger.
In the modern era, we recall that East Germany put up the 'Berlin Wall,' to keep oppressed people in. The South was taking similar action, trying to force people to stay in; and, like the then-Communist East German dictatorship, was failing. People with a choice of slavery or freedom, typically choose freedom. Slaves would flee, via the "Underground Railroad."
Northern 'states' rights' personal liberty habeas corpus laws granted due process to such individuals; and of course, since no crime was alleged against slaves, freed them.
So the South, with experience censoring facts and passing pre-emption laws, had Congress pass a federal pre-emption law, "tort reform," the 'Fugitive Slave Bill,' pre-empting, overruling Northern 'states' rights' personal liberty laws of this type, precluding jury trials, and forcing the Free-North's States to return those who had fled the South. Even the Communist East Germans had never had a law passed forcing the West, to, without trial, return escapees from Communism!
Robert Rantoul, Jr., gave this speech to explain certain aspects of the unconstitutionality of the federal 'tort reform,' forced-return pre-emption law.
Other abolitionists, e.g., Lewis Tappan, gave additional analyses of the unconstitutionality.
Rantoul had been a perennial candidate for Congress, always losing as the "Slave Power" against him was stronger. But when the "Slave Power" forced through the "Fugitive Slave Act" in 1850, forcing Northerners to help them catch "slaves," the anti-slavery viewpoint became more popular, and anti-slavery candidates more likely to win. Thus Rantoul won that year (1851).
For background, see analyses by, e.g., Harriet Beecher Stowe and Richard Hildreth.
This site is one in a series making again available, the long out-of-print anti-slavery writings of the pre-Civil War era.
Examples include the writings of George Mellen (1841), Alvan Stewart (1845), Lysander Spooner (1845), Benjamin Shaw (1846), Joel Tiffany (1849), Rev. William Goodell (1852), Abraham Lincoln (1854), Edward C. Rogers (1855), William E. Whiting, LL.D., et al. (1855), Rep. Amos P. Granger (1856), and Frederick Douglass (1860).
Our fore-fathers had this information. Now you can too.
The 3 April 1851 Speech is reprinted first here, then the 7 April 1851 legal brief.
With respect to the Speech, people of the 1850's sometimes omitted tables of contents, used long pargraphs including without indenting quotations, and used or spelled words differently than now. Paragraphing, indenting, and spelling have been updated to reflect modern use. A table of contents, subject headings, and editor notes on obscure references and circumstances, are also included [in brackets] to clarify for modern readers. The legal brief is so short, no 'table of contents' is needed.
Table of Contents
|Fugitive Slavery As an Issue||3|
|Purpose of U.S.A. and Constitution||3|
|Pilgrim Precedent: "Higher Law"||4|
|George Washington Precedent: "Higher Law"||4|
|Goal: Promoting Union/Constitution Purpose: Liberty||4|
|Union/Constitution Only of Value If Purpose Fulfilled||5|
|Liberty: The Purpose of Government||5|
|Constitution Specifies A Limited Federal Government||5|
|Early Fears About U.S. Constitution||5|
|Bill of Rights / Tenth Amendment||6|
|The "Compromises" of the U.S. Constitution||6|
|First "Compromise": Two Houses||6|
|Second "Compromise": Export vs Import Taxes||7|
|Third "Compromise": 3/5 Apportionment||7|
|Fourth "Compromise": Migration / Importation Clause||8|
|Other Clauses To Be Interpeted||8|
|"Full Faith and Credit" Clause||8|
|Congress' Role re the "Full Faith and Credit" Clause||9|
|Clause on Citizen Rights Being Respected in Other States||9|
|The Extradition for Crime Clause||9|
|The "Service or Labor" Clause||9|
|Daniel Webster's Analysis||9|
|The Supreme Court's Opposite Analysis||10|
|Fears About U.S. Government, cont'd||10|
|Why to Prevent Excessive Federal Power||10|
|Rantoul's Plan to Prevent Excessive Federal Power||11|
|Issue of Escaped Accused Criminals||12|
|Issue of Escaped Accused Slaves||12|
|Accuser Must Prove "Held" vs Merely "Charged"||12|
|Slaver Claims Fail to Follow the Fifth Amendment||13|
|Millennia of Law Show People Are Presumed Free||13|
|Due Process of Law||13|
|The $20 Rule||14|
|Where to Have "Fugitive Slave" Trials||14|
Pursuant to a call from the District Committee, a very large and highly respectable meeting of the Democracy of the Second Congressional District, including the most active and efficient supporters of Democratic principles, for the last twenty years, in almost every town in the District, assembled at Lyceum Hall, Lynn, on the afternoon of the 3d of April, for the purpose of consultation with reference to the election ordered for the following Monday.
The meeting was called to order at half past two o'clock, and the HON. FREDERICK ROBINSON, of Marblehead, formerly President of the Senate of Massachusetts, was chosen President of the Convention.
P. L. COX, of Lynn, FRANCIS A. SMITH of Marblehead, and
HENRY LANE of Lynn, were chosen Secretaries.
The HON. Mr. ROBINSON, on taking the chair, in an animated address, enforced upon his hearers the necessity of recurring to those FUNDAMENTAL PRINCIPLES OF HUMAN RIGHTS on which our free institutions are established, and which it has for sixty years been the proudest boast of the DEMOCRATIC PARTY, that they
have defended with unwavering fidelity, and cherished with PECULIAR zeal. The unanimous applause with which his remarks were received, showed plainly that the faith of Thomas Jefferson, Samuel Adams, and Elbridge Gerry, though it may be extinct in the metropolis of New England, still lives and burns in the hearts of the Country Democracy [rural Democrats].
When the often repeated bursts of applause which followed Mr. Robinson's appeal for freedom had subsided, JOSEPH HAINES, Esq., of Lynn, presented for the consideration of the Convention the following [personal liberty] resolutions:—
The reading of the resolutions was interrupted frequently with demonstrations of approval, and after being read they were laid before the meeting for discussion.
The President introduced Mr. Rantoul, who was received with great enthusiasm, and preliminary to commencing his speech re-read the aforesaid resolutions, and proceeded.
HON. ROBERT RANTOUL, JR.
Mr. President, the Convention which I now have the honor to address, was called, as I suppose, at my suggestion. The reason why I desired of the District Committee of this district that the Democratic voters of this district should be called together, and that I might have an opportunity to address them, was one which I think will meet the approbation of you all. It was, that since the period when I was first nominated to represent this district in Congress, a very material change has taken place in the condition of affairs.
One change was this. I have had the honor to be nominated for Congress again and again, when I supposed there were very few persons who believed there was any probability of my election. A law has now been passed which makes it certain that some person must be elected to represent this district in Congress. It is called the Plurality Law.
Therefore, as we now know we are not to pass through trials without end, but either at the election on Monday next, or on the succeeding one, some person will be elected, it therefore be-
comes a different question as to what ought to be done.
There has also been a change with regard to other great question. The great question of slavery has now assumed a particular shape, concerning which it is now necessary to declare an opinion. So long as that question was floating in uncertainty, so long as it was connected with subjects which were changing day by day, it might not be desirable that a public man should state his opinions.
But at last this question has assumed a definite shape.
It [the slavery issue] has presented a distinct issue, an issue reaching back to fundamental principles. And I did in my conscience suppose, that the Democratic voters would desire to hear from me, before they should deposit their votes at the election of Monday next.
Supposing that all the Democratic voters desired to be acquainted with the views of their candidate, one of two courses was necessary to be adopted; either in writing to present my views to the citizens of this District, or to invite the Democratic voters to come together and meet me face to face. I have preferred the latter, because I can speak more freely than I can write, (though that is a personal consideration,) and because if I address my fellow citizens here, those who wish to hear me can come, and those who do not wish to hear me can stay away.
I am now ready to proceed to make an exact statement of my opinions, a statement so unequivocal that there shall be no mistake about it. I intend to make a distinct and unequivocal definition of my ideas of what seems to be the most important issue now before the country. [Cheers.] And when I have done so, for I want to lay down a distinct proposition upon this subject, I shall then say to my friends of the democratic party, who are here present:
In explaining one's ideas before the people, it seems to have become quite the fashion, of late, to go back so far as to swear fealty to the Constitution and the Union. I will follow that fashion.
I am attached, and as devotedly attached as any other man, to the Union of these States, and to the Constitution of our government. I believe the Union to be at the bottom of almost all the other political blessings that we enjoy. I believe the Constitution to be—not perfect, as nothing proceeding from human hands is perfect—-but as nearly and as reasonably perfect as could have been expected at the time it was made, as could be expected if it were made now, and even better than if we were to make it over again.
But when I say that I admire and love both the Union and the Constitution, it is because of that which they secure to us. The Union is great, I might almost say, it is the greatest of our political blessings, because it secures to us what was the object of the Union. And the Constitution is good, and great, and valuable, and to be held for ever sacred, because it secures to us what was the object [purpose] of the Constitution.
And what is that [purpose]? Liberty! And if it were not for that, the Union would be valueless, and the Constitution would not be worth the parchment upon which it is written. ["Hear! Hear!"]
Why do we value the Union? Because it secures our national independence and the independence of the several States; because without it, there would exist a number of petty States, which would be, as they are in Europe, exposed to perpetual wars with each other and with their neighbors. We should be obliged to keep up a standing army, and should be quarreling with each other, as the petty German States have done for ages. With all that, your national independence would be, if preserved, continually in hazard, but most probably could not even be preserved. And out of that condition of things would grow most probably a contest of small States with great ones; and the independence of the weaker ones would be sacrificed, while the greater ones would rule over them.
Against all that, the Union guaranties us. It guaranties to us independence. What is independence? Have there not been the most cruel despotisms on earth which were independent nations? Our inde-
pendence is valuable because it preserves our liberty; and the Union is great and glorious because it preserves our independence, and thereby our LIBERTY. [Prolonged applause.]
I love the Union and the Constitution, then, not for themselves, but for the great end [purpose] for which they were created;
It is because I believe all this, that I love the Union and the Constitution.
And if I did not believe this, I should go back to my pilgrim ancestors and take a lesson from them. When they came out from the old world, and left their country which they loved, and the constitution of Great Britain which they loved, (for they expressed their love for it in all their writings, speeches, and deeds,) though they loved their country and its constitution, they loved something else more than they loved their country. They loved liberty more. "Patria cara, carior libertas."
Interwoven with every fibre of my heart is the love of my country; but freedom is the charm which endears and consecrates her; and if the spirit of liberty should take her flight from my native land, my love and worship are not due to brute clods and rocks, to her prairies, or her mountains; but, where liberty dwells, there is my country; there only is my country! [Great applause.]
Dear to my inmost soul are the Union and the Constitution; but God-given liberty is above the Union, and above the Constitution, and above all the works of man. [Long continued cheering.]
Mr. RANTOUL. These ideas are not at all new with me. They are not taken up on account of any present position of public affairs. I see before me quite a number of gentlemen who were present eighteen years ago, when I had occasion to discuss the value of the Federal Union, I then took the same view of the value of the Union and the Constitution that I take now. I valued them then, as I value them now, because of their great purpose. So long as they accomplish that purpose, so long are they the highest political blessings. And if they ever cease in the providence of God to accomplish that great purpose, they become worthless, they may become even a curse.
[President George] Washington in his invaluable legacy of practical sagacity, the farewell address , held the same view of the relations in which the Union, the Constitution and the great principle of liberty stand to each other. It is because of our love of liberty that we do love and ought to love the Union and the Constitution. He gives to the view which I have just taken the full sanction of his mighty name. He declares
He tells you that by this Union the several parts avoid much of the liability to, and the danger from wars with foreign nations, and domestic
It is because I receive into an undoubting heart these parting lessons of that apostle of liberty, who was the founder of our Union, and inaugurator of our Constitution, that I venerate his work, and cling to it, as to the ark of our political salvation.
Living in this faith, and desiring to live up to this faith, I so exhibit my fidelity to the Union, and so exercise my devotion to the Constitution, as will best promote the ultimate purpose of the Union and the Constitution, the cause of human liberty. Were I knowingly to swerve from this straight path, but by the division of a hair, I should be so far false to the glorious mission of an American citizen, and to the obvious duty devolving on a Massachusetts man. Every son of our ancient Commonwealth, who swears to support her institutions, becomes, by that fact, a soldier sworn upon the altar of freedom.
My influence, I know, must be but limited, and my sphere of action humble, but this does not affect the nature of my obligations. The degree of power which a man may be able to put
forth is determined by God in the original constitution of his faculties. He is justly deemed responsible only for the tendency in which they may be directed.
The tendency of my steps this day is to tread the path our fathers trod, THE PATH OF FREEDOM AND PROGRESS. My hope and trust is to hand down to posterity, not only unimpaired, but strengthened and augmented, all the safeguards of liberty which, through many ages of long suffering, the toil of patriots earned and the blood of martyrs hallowed, and which the fathers of the American Revolution died believing that they had secured for ever. [Prolonged applause.]
It is not any new-fangled doctrine that sets up the means above the end, and says that the parchment is the inestimable treasure, and that the object [purpose] for which that Constitution was made is to be forgotten; that the object [purpose] which our fathers went through a seven years war to accomplish, is to be neglected —it is no such new-fangled doctrine that I maintain. I contend that the Declaration of Independence, the Constitution, and the Union of the United States are valuable, only as long as the purpose of them is valuable. But that these instruments are to be talked of as if they were intrinsically holy, and that the purpose which was in the souls [minds] of those that made them, as it should be in our souls [minds] to-day, is not to be spoken of without incurring the charge of fanaticism or abolitionism—I go for no such new-fangled doctrines as those.
Liberty is the object for which governments are founded; and that government is best administered where the spirit of liberty is best preserved. [Cheers.] If then this be the great object of the Union and the Constitution, and that which makes the Union and the Constitution dear, how is the government to be administered, how is the Constitution to be interpreted?
There have been two great schools of politics in this country since the foundation of our government.
Let us look at that question: The Constitution of the United States creates a government of limited powers. Are they to be held strictly to the limitations of that instrument? or are they to have a system of loose construction which will transcend those powers? That is the great question at the bottom of all our party divisions for sixty year past.
Now I hold, and have always held, that the Constitution of the United States is an instrument which is to be strictly construed; and that the Constitution is the letter of attorney by which the members of Congress are authorized to act, and that they are empowered to do nothing which it does not authorize them to do. That is my doctrine, and it is democratic doctrine. I ask of democrats some application of that doctrine. It is the doctrine on which the government stands, that the Constitution of the United States is to be strictly construed. Nothing is to be established by means of unnatural inferences. Was that the doctrine of those who made the Constitution of the United States?
The Constitution of Massachusetts says that the General Court [Legislature] shall make all laws which are for the benefit of the people which are not forbidden in that instrument. It says the Legislature shall not take away the trial by jury; it shall not abolish the habeas corpus. It forbids that which shall not be done. All else may be done by the Legislature. This is the Constitution of Massachusetts.
The Constitution of the United States, on the other hand, says, this thing you may do; that thing you may do; the other thing you may do; and there it stops. To that, the government of the United States is to be strictly held.
To prevent any misapprehension on that subject, let me say that it was well known that there was one school of politicians [the Federalists] who considered that safety only consisted in following the example of their predecessors, that is, in following the example of Great Britain; who said that we must have a strong government, or we should be in the condition of the Germans, the Italians, and the Greeks, for a long series of years. And history seemed to be in their favor.
I do not wonder at their opinions. They [the Federalists] said,
And perhaps our government would not have held together if the people had not been more intelligent than those of the German States, or if they had been surrounded by strong nations at war
If we had had a nation in Canada as strong as France, and one in Mexico as strong as Great Britain, and should have been at war with them, or were constantly liable to war with them, perhaps our government would not have stood.
It was not at that [Constitution-writing] time [Summer 1787] to be expected that they [the Founding Fathers] should know how the thing would turn out, because it had never been written in history. They had seen no great successful republican government.
But it is our own fault if we are not wiser by experience.
I say that the school of politicians [the Federalists] who thought the government was not strong enough did not intend to have a strict construction. A gentleman once remarked to Alexander Hamilton, who was one of that [Federalist] school [political viewpoint], that he thought the Constitution was a pretty good instrument. "It depends," replied he, "upon how you construe it."
He [Alexander Hamilton] was in favor of modeling our government somewhat after the English form. He thought that the Minister of the Treasury, and of Foreign Affairs, should step into our House of Representatives as the Premier of England enters the House of Commons, and should there explain the intentions of the government and the relations of other countries to our own. Then he wanted a public debt, because Great Britain had a debt. He wanted a Bank as Great Britain had a Bank. And so on other points, he wanted the government as strong as it could be made. It is my opinion that he was honest in that view.
When the Constitution came up for adoption, many States refused to adopt it, unless there was strong probability that certain amendments would be adopted.
One of them was thought peculiarly important. That amendment was subsequently adopted, and is now in my hands. It is the 10th article of the amendments to the Constitution of the United States:
The powers not given are reserved to the States, or to the people. When you ask whether a bill be constitutional or not, the first thing to be done is to look into the Constitution, and find the express grant therefor. If it is not there it is reserved to the States or to the people. That is the democratic doctrine. [Applause.]
Now was that Massachusetts doctrine? Most assuredly it was. Massachusetts had a good deal of democracy in her early times. When old Sam Adams drafted this bill of rights, there was a good deal of democracy in him, and a good deal in the people. Here is the Bill of Rights, drawn up in 1780, showing what they thought then.
What do they mean by "expressly delegated to the United States?" They say this, in so many words, in language that cannot be mistaken. This is what they meant. They meant that the Government of the United States should not then, or thereafter, assume any power which the States had not expressly delegated to it. And well would it have been if that principle of the majority of the States of the Union had always been adhered to; it would have saved us a vast deal of trouble.
I belong, then, to that school which holds that the Constitution should be strictly construed, and its meaning strictly adhered to.
And when I say this, I have at the same time a great veneration for all the compromises of the Constitution We hear much of them. What are they? I sometimes hear people talk of the compromises of the Constitution in such a way that I think they would be much puzzled if they were to be asked what they are. There were compromises, the non-adoption of which would have prevented the Constitution itself from being adopted by the people. Leading members even went home in despair of effecting a Constitution acceptable to the people. And it was after they had gone, that certain compromises were adopted, which finally insured the acceptance of that instrument. What were they?
In many confederacies, ancient and modern, all the States entering into the combination had an equal number of votes. The small States insisted that that was the right way. They said, we shall be swallowed up
by the larger States unless we can vote by States as was done in Congress under the Confederation. I suppose it is well known to you, that the Convention of States was called together for the purpose of amending the old articles of Confederation. They found, however, that they would not bear amendment. They scarcely made any attempt at amendment, for they ascertained that it was easier to make a new instrument than to repair the old one. In the old Confederation the States were all equal. Delaware had as large a vote as New York.—
Luther Martin who led off this opposition, has left an account of it, and of his own action. The small States refused to come into the support of a combination, unless they could have an equal vote: And the convention came very near breaking up in despair of ever settling that distracting question.
How did they finally settle it? By making this compromise; by saying that in one branch the people should be represented according to population, and in the other the States should be equally represented! New York, Pennsylvania, Virginia and Massachusetts said to the small States, You shall be represented in the one branch according to population; and we will consent to be represented in the other branch by States. The large States were discontented with the equal representation in the Senate. The small States were discontented with the great amount of power which the large States had in the lower house.
This was then the first compromise. It was the great one, because this difficulty came nearer shipwrecking the whole government than any other, and because it was the most important.
There was another compromise, and it, too, was important. The immediate occasion of the formation of this government, grew out of difficulties of navigation chiefly in Chesapeake Bay and Delaware Bay. Great difficulties arose on account of the different commercial arrangements which were entered into by the several states. For instance, if Massachusetts laid duties, and Rhode Island did not, goods would be introduced, duty free, into Rhode Island, and smuggled over the line. Ten thousand difficulties were growing up between the different states on this account, and particularly between Virginia and Maryland, concerning the navigation of Chesapeake Bay. These difficulties led to the calling of a convention for the purpose of amending the articles of confederation. It was ascertained at once, that this could not be done. But finally a new attempt was made, which resulted in the formation of this Constitution. The attempt to regulate commerce was in fact what led to the formation of this Constitution. And they were obliged to make a compromise, which we have almost forgotten.
There were some States which were agricultural States, raising tobacco and rice principally, as the cultivation of cotton was then hardly thought of. They were planting States.
Now the agriculturists [mostly tobaccoists] said, If we allow Congress to regulate commerce, they will put duties on exports, and thereby shut off the sale of our [tobacco] products. They did not then think that the duties on imports would produce the same effect. They did not think at that time, as seems to be now a favorite notion with some, that the greater the weight of taxation, the better for them and for the people, under the plea that the greater duty would furnish the greater protection to our industry. Neither thinking of that, nor of the effect which would be produced by the taxation of imports, they insisted that Congress should put duties on imports alone.—The revenue on the importation of goods was of great value to New York and Massachusetts. They gave up that, and this bargain was made [Article I, Sections 9-10] between the agricultural states on the one hand, and the commercial on the other, in which they agreed that exports should not be taxed, and that taxes on imports should be equalized.
Then came another compromise. They [the Founding Fathers] had not then thought that taxation on all the imported goods was to be regarded as a blessing. Therefore they had never anticipated that all the revenue necessary for the purpose of carrying on the government would be obtained on the imports.
So strong was the feeling against raising a large revenue from imports, that when Hamilton made a report proposing five per cent. duties on some imports, he had to argue at great length to the effect, that though it was a terrible thing, we should submit to it, because it was necessary in order to obtain funds for the government. The taxes on imports, it was not apprehended [then thought], would ever be so high as to defray the expenses of government. On the contrary, they expected that the expenses of government would be defrayed by direct taxation.
Then it became an important question, How shall taxation be apportioned among the people? "Why," said men at the North, "according to population; and let every body, white and black, be enumerated." "No," replied the South, "for here are our southern slaves who do not produce as much as your laborers. We ought not to be taxed according to population."
And not only was there a compromise made on this subject, but they were ready to have their representation diminished by two-fifths of their slaves, which was not much thought of at the time, inasmuch as they obtained as a recompense what was esteemed by them as a great boon, namely, the taxation, also in proportion to their numbers, omitting two fifths of their slaves. This was very much desired at the South and opposed at the North. And the South conquered.
We now talk about taking off the whole of their slave representation. I do not know but that they would have been glad to have had the whole removed, if they could by that means have avoided taxation therefor. That was the point of view from which they then looked upon it. It was, as you perceive, then viewed very differently from what it now is.
In that compromise there was no reference whatever made to a slave, or to the condition of a slave. It is simply a certain mode of ascertaining taxation and representation. It was decided, that to certain persons who were described, they should add three-fifths of all other persons, to obtain the basis of representation and direct taxation.
The reason why that phraseology was adopted, was, that there existed a sort of secret dislike of the institution of slavery; [applause;] a dislike extending to southern men as well as to northern men. Southern men aided in the formation of this Constitution, and in the adoption of this article. Southern men felt a sort of unpleasant sensation at the sound of that word slave, and of that other word slavery, and did not fancy the idea of introducing them [such words] into a document which was to live forever. They contrived to express their ideas, therefore, without mentioning those terms. It cannot be said that this was any compromise on the subject of slavery. It was a compromise on the subject of taxation. They put in something equivalent on the subject of representation.
There comes, then, another compromise, which is important. There were several smaller ones, to which I have not alluded. Those two which I have already referred, and that which I shall mention, are important. The remaining compromise is this:
Those who made the Constitution said that this importation should go on in such States as chose to carry it on, for twenty years, and that after that time the federal power may be exerted, and the slave trade shall be stopped. Accordingly, when that period arrived, it was declared piracy. At the moment that the Constitution would allow Congress to act, that moment Congress acted. There was not the delay of a day or an hour. The slave trade was forever prohibited. That is the last of the important compromises.
Now when people talk about adhering to the compromises of the constitution, referring thereby to certain other things which are not compromises, which are not the agreement of two parties, in which each gives way a little for the sake of that which it esteems a greater good, but to those other things which are not alluded to in the Constitution, I should like to have them define what they mean. These which I have mentioned, it is necessary to adhere to.
Therefore I go on to declare as to certain other clauses, that there are stipulations which are to be construed. And I propose now to construe them.
I come to the fourth article of the Constitution of the United States. In that I find all that is found in regard to the delivery of fugitive slaves. And I intend to ask, What does that language mean? Construe it by the same rules according to which the other clauses are construed. In the first place, the first section of the fourth article of the Constitution of the United States says,
Every State shall give full faith and credit to the public records of every other state. Does this grant power to any body? I see in the words that follow, what the makers of the Constitution thought on that subject. I see that they thought it did not grant the power to Congress, because they add language giving the power. What I have read is no grant of power to Congress. It is a prohibition to the States. It says, You shall not deny your belief in the truth of the public records of your sister States. If a court in
South Carolina says a certain thing, you are to give full faith to it. That does not say that Congress shall do anything about it.—And the people of the United States did not understand that Congress had the power. The makers of the Constitution did not understand from the extract which I have read, that Congress had any power over the subject; and for this reason, that the close of the section gives to Congress the power which would have been needless had the preceding language conferred it.
What need was there of adding this latter clause if the first was a grant of power? You may read this Constitution through, and you will not find any words wasted. Every word means something. It was put there because it was necessary, and because the meaning would not have been there without it. I say that that first clause did not contain a grant of power; and the men who put it there knew it. They first say that faith shall be given; and then bestow on Congress the power in relation thereto. The powers not delegated to Congress are reserved to the States. That power would have been reserved to the States if not given to Congress in the last clause of this section. Can language make that clearer?
I go to the next section.
Very well! A colored man in Massachusetts goes out from our ports, and goes into one of the harbors of South Carolina. They do not give him the immunities of the citizen of the State. Does any southern man contend that Congress has the power to enforce that section? No! there is no power granted there. There is a declaration of a principle, but it does not say that Congress shall possess the power to enforce it. Therefore they say that South Carolina may make what laws she pleases, and the United States government can do nothing to prevent it. They adopt one rule for this clause, and another rule for another clause in the same section.
But do I say that Congress has the power to enforce action in consonance with this clause, in the harbor of Charleston? No! I choose strict construction on all these clauses. I adopt the rule of strict construction in them all, and not a strict construction in one and a loose one in another.
The next clause is as follows:
Under that clause no serious difficulty has arisen. The States have given up criminals, and no State has of late years objected to it.
Then comes the next clause:
To whom is that directed? To the States or to Congress? To the States! It says, "no person shall be discharged by any law or regulation of the States" That is a regulation addressed to the States and not to the Union. And then it goes on to say, "But shall be delivered up on claim of the party to whom such service or labor may be due."
In the case of a person charged with crime, the rule is, that he shall be removed to the State having jurisdiction of the crime. Now, if the first part of this section is addressed to the States, then to whom is the subsequent clause addressed? For it does not go on to say Congress shall make the laws, but it says you shall deliver up. How can any person contend that one [clause] is addressed to the States and the other not?
One clause says they shall not make laws, and the next that they shall deliver up. I say that that last clause is as clearly addressed to the States as the first. And then I go back to the old rule laid down by our fathers, written by Samuel Adams in the Bill of Rights of Massachusetts, in which he says, "Every power, jurisdiction and right, shall remain with the people, unless specially delegated to Congress." Have these powers been delegated? [ No! No!]
There is not, then, in this clause, a delegation of power to the United States government to pass any law about fugitives from labor. There is a direction that certain things shall be done, and that certain other things shall not be done. And that is directed to the States. A fugitive shall not, by any law or regulation of that State, be discharged. That is addressed to the State.
I come, then, to the conclusion which the present [23 July 1850 - 24 October 1852] head of the [U.S.] State department [Daniel Webster] came, and which he announced again as late [recently]
as March 7, 1850. I come to the conclusion, that this section of the Constitution was addressed to the States. I quote Mr. Webster's opinion for this reason, that he has always gone rather further in favor of increasing the power of the government than the Democratic party. Mr. Webster has gone further than we have. He has allowed [said he believes that] a National Bank to be [is] constitutional. I might give other cases.
His [Webster's] mind [viewpoint] is of such a nature that it has a tendency to extend the powers of the United States government a great deal further than the Democratic party have thought it right. I am not now criticizing his opinions in favor of enlarging the powers of the government. He has been a Federalist all his life, belonging to a party who have been inclined to give great power to the United States government. It is not at all unlikely that if the power had [supposedly] existed in the Constitution, he would there have found it. He says particularly that he thought it [the above Art. IV § 1 clause] was directed to the states, and not to the general government.
The United States Supreme Court have made a decision to the contrary. That is a fact which stares us full in the face.
In the case of Prigg vs. the State of Pennsylvania [41 US 539; 10 L Ed 1060 (1842)], they decided that the States have no right to legislate for the carrying into effect of this section, but that the power thereof lies in Congress.
Perhaps it would not be proper for me, considering my profession as a lawyer, to argue the case against them. But I am not satisfied with the decision, or their reasons for it. And I believe it was a mistake. I believe, too, that it was a mistake, the whole consequences of which will not be seen for many years. I think they should have taken the ground the democratic party must take, (for they cannot come to any other conclusion,) and which Daniel Webster tells us was his opinion, that the language of this clause of the Constitution, was addressed to the States. [Applause.]
Why, my friends, two sets of dangers have always threatened this government in the view of the people; one party has feared that it might fall to pieces; the other that it might become too strong. Which have we now most reason to apprehend? Is there any danger that our government will prove to be too weak?
Originally, one fear was that they [the federal government] could not raise money enough to defray the expenses of the government. They [such Founding Fathers] did not think of obtaining a revenue by the taxation of imports to such an extent as to raise thirty or forty millions of dollars. They thought of one million, one and a half or two millions of dollars.
Alexander Hamilton said that the government could not be carried on because men would not travel from Maine and Georgia, as far as Washington, for the purpose of participating in the affairs of government. Now it is not difficult to find men of the first order of talent to come even from California, if their mileage be paid. [Laughter.]
The dangers that the general government could not enlist powerful men; that it could not raise money enough for its expenses, have disappeared in smoke and mist, and we can now hardly conceive of such dangers.
But the contrary danger is more and more a reality. There may be a continual accumulation of power by the general government. There may be such an increase of taxation as to crush the community. There may be a large standing army. Nobody thinks of any objection to adding a million or five millions of dollars for the support of the army or navy. But add a few thousand dollars to the salary of the Judges of the United States, and there will be a great outcry about the lavish expenditure of the government.
I say that the constant increase of power of the general government does seriously affect the interests of the community. If that be so, how is it to be cured? How is it to be prevented? For prevention is easier than cure. It is to be prevented by the strict construction of the Constitution. And this becomes every hour more necessary, not only because it will prevent the enlargement of the power of the government, but in consequence of the great extent of our territory.
If the [federal] government extended over New England only, there is a homogeneous people which might be easily managed. But when we come to have States like New England, States like the cotton and planting States of the South and West, with new and distant States like California, containing divers habits, religions, and so much diversity in all those things which make a people one people, then it is important that the sphere of your general [federal] government should not be extended into all sorts of matters. It [the federal government] should be restricted to its proper subjects. For instance, the regulation of foreign commerce! That is necessarily done by the general [federal] government. I am for carrying it a little further than some people. Knowing that it was the intent of the framers of the Consti-
tution to carry it as far as the necessity went, I am for carrying it as far as that necessity demands.
And when the general [federal] government decided that this power could be exercised for the construction of light houses, the construction of piers, and for the removal of obstructions in the harbors of our eastern ports, and when I saw all that, I thought that it was a legitimate exercise of power. And I thought the same principle could be carried into the West just as well as on the Atlantic coast. If that power will authorize the removal of an obstruction in New York harbor, it will authorize the removal of obstructions in the waters of the Mississippi. If it will authorize expenditures at Cape Ann, it will also authorize them in Lake Michigan. Give the West fair play. Let the government do what must be done; and then carry the principle out so as to make it fair and equal for all sections of the country. [Cheers.]
But having done that I would not allow the general [federal] government to go into any exercise of power which is not delegated to it. Since the [wrong Supreme Court] decision of the case of Prigg, the States [stripped of power over fugitives] have thought they were not responsible for what was done. They have therefore in some cases refused the use of their jails, and the assistance of their officers, for the recapture of fugitive slaves. The United States government now go on [expand federal power] and legislate [on this state matter].
It would be easy to illustrate in a thousand ways, the evils that may grow in the future history of the country out of this disposition of the general government to encroach upon the rights of the States—to show that the fears of Thomas Jefferson, and Samuel Adams, and Patrick Henry, and Elbridge Gerry—fears of indefinite usurpation tending towards, and finally terminating in consolidated federal despotism, may perhaps some day be realized.
I prefer to take this precise evil in order to illustrate the effect of this tendency. A law which is made by a State, is likely to be suited to what is to be done. The State of Massachusetts knows what her people can bear, and what they cannot bear. But if a law is to be made contrary to the sentiments of any State, it will be impracticable to carry it out in that State.
How does that apply to the question of slavery? Just in this way! The retaking of fugitive slaves is to be carried out, if any where, in a free State. Slaves do not, when they escape, stop in a Slave State. If fugitives are to be returned from any place, it is from a Free State. When Congress makes a law [forcing free states' people into slave-catching] on the subject, it makes it against the very inmost sentiments of the souls of the people of the free States. ["Shame!" "Shame!"]
Is that a power likely by its exercise to tend to the perpetuation of the Union, by carrying out this law?
I propose to perpetuate the Union by checking the power of the General [Fedral] Government, by confining it within its legitimate sphere of action, to those concerns upon which it may act for the common good, without arousing indignation and hatred in one section against the other; sometimes driving South Carolina to the brink of rebellion by the galling weight of unjust and intolerable taxation, and sometimes outraging all that is honest and patriotic in puritan Massachusetts, by leveling at a single blow all those bulwarks of liberty, which barons bold and sages grave in the olden time, and the Republicans [under Oliver Cromwell] who brought the Stuart [Charles I.] to the block, with those who broke the yoke of the house of Hanover in later days, had labored, each in their generation since the twelfth century, to erect; which it is the proudest prerogative and boast of Britain that she possesses; and which constituted the richest inheritance that our fathers received from the mother island empire.
I propose that the Federal power shall lift its iron heel from the neck of Massachusetts, and return to its appointed duty, and circumscribed routine. [Loud Cheers.]
But we are told that these are measures of conciliation, measures of peace. Enforce this law, and we shall have peace and quietness, it is said. How? Is one-third of the white people of the United States to dictate to the other two-thirds, and call their submission peace? I admit [fear, anticipate] that these slave interests may set one part of the country against the other.
It may so happen that difficulties will take place in either case, whether you legislate according to opinions almost universal, and moral feelings deeply rooted, and sanctioned by the religion of nine-tenths of the people of the North who possess either morals or religion, or whether you legislate according to notions which are common in all communities upon whom the institution of slavery has been entailed. But is it just as likely to cause difficulty when two-thirds of the whole people of the country are irritated as when only one third are irritated? [Applause.]
I see no way of getting out of this difficulty, so straight-forward, so sure of its results, as it would be, if practicable, to go back to the old Demo-
cratic principle, of the strict construction of all constitutional grants of power; and finding no such power delegated, finding that it is not so nominated in the bond, to say the United States Government have nothing to do with this matter. [Cheering.]
But, sir and gentlemen, as this subject is one of great interest, and as the manner in which it has been most commonly discussed is different from the course I have pursued, allow me to go one step further. If it be granted, which I do not grant at all,—if it be granted that the United States government has the right to make a law upon this subject, under the fourth article, let us inquire what sort of a law it gives them a right to make; for that is a matter of great consequence.
A man charged with crime shall on demand he delivered up! That is the law.
What have you to ascertain before you give him up? Simply that he is charged! That means, that he is charged by some responsible person, on what a lawyer would call good and probable cause, upon which charge, so far substantiated, the executive of the State from which it is alleged that he fled, demands him, by a formal written requisition.
Where shall he be tried? Where he is charged! It is a privilege to the party charged with crime that he shall be tried where the crime is alleged to have been committed. This is inserted for the benefit of the person charged with crime. So that, if a person be charged with crime, let him go back to the place where it is alleged that the deed was committed, for there he can most easily prove his innocence. This is based on a very ancient principle of the English common law.
The question to be decided is, Is the man charged? Does a responsible man who would be convicted of perjury if it were not true, swear that he committed the crime? If so, we will take his oath and send the accused man back. We will take the requisition of the executive as proof that such a charge has been made. He does not have his trial where he is found, but only his preliminary trial there. The preliminary inquiry in such a case may be accomplished by a summary process, for it includes little more than the verification of the authority under which he is demanded, and proof of the fugitive's identity.
It is not necessary to have a jury in Massachusetts to try a man who is charged with having committed a murder in New York. You could not conveniently, him a fair and full trial here. You, therefore, go through a summary process to determine whether it is necessary to send this man back.
I go next to the succeeding clause. I know that the men who made this Constitution knew what they were about, and did not put a single clause here, or a single word here, without meaning. There is no book in the English language, of which the construction is so plain, as the constitution of the United States. If a man comes to it with a sincere and honest heart, and will take the trouble to compare one portion with another, he cannot fail to come to a right conclusion.
We come, then, to the next section:
There is a very extraordinary difference of language between this section and the preceding One. In that it was "a person charged" with crime. There was probable cause to believe that he might be guilty. But in this section, is it a person charged with being held to service? a person that somebody swears was held to service? The Constitution tells you what it is: "No person held to service or labor, &c." If he is not held, he is not liable.
Who shall be delivered up? The person "held." Not the person charged, as in the case of a person charged with murder. It is not the person suspected, but it is the person held. When? Not till it is found out whether he be held or not, I take it. [Repeated rounds of applause.]
But the person held to service or labor, "shall be delivered up on claim of the party to whom such service or labor may be due." The party who held him must prove that the service or labor is due and that he was held. How is this to be done? Is it to be done by a summary process? Did any man ever hear of such a thing except in relation to slavery? ["Hear!" "hear!"]
Did any man ever hear that any question of liberty or property was finally disposed of by means of a summary process, except in relation to this subject of slavery? We are told that we should submit. Now I do not go to a Southern State to tell them what they shall do, or what they shall not do. Let them provide for their own institutions as they please, but let them not come here
and tell me that a man shall not have a trial by jury, and that he shall not only not have a jury trial here, but, perhaps, no where else. I do not admit any such doctrine here. [Cheers.]
Why, is it not quite clear how this question whether he be held to service or not, should be decided? What is the principle of the Constitution of the United States on that subject? For there is a principle laid down here. There is very little left out that ought to be in this Constitution. There is laid down here the rule that no man shall "be deprived of his life, liberty, or property, without due process of law." That is in the 5th article of the amendments of the Constitution of the United States.
Now I take it, if you seize a colored man, or you may seize a white man under the operation of this law, if you seize any man in Massachusetts under this fugitive slave law, the first question is, Shall he be deprived of liberty?
You are not to take it for granted that he is a slave. All presumptions of law are in favor of liberty. It is a maxim older than Christianity itself, Presumitur pro libertate; that the presumption is always to be in favor of liberty.
Now, if I say it was the maxim of ancient Rome before Christ was born, it is the maxim of the Christian Era, and of everybody, the world over, today; it is the maxim of the civil law of Europe, coming from the early ages of the Republic, through the Empire, and surviving the Empire, a system of law matured for twenty-five hundred years, into the most perfect embodiment of human reason to which the world has given birth; this law cried [established] through all time, All men are by nature free; it is the great cry of Pagandom to Christendom, and Christendom echoes it back; it is the maxim of the common law of England; it is the maxim of the common law of Massachusetts; it is the maxim of the whole world, save only the slaveholding States of this Union. [Enthusiastic shouts of applause.]
It is to be presumed that the man is free, from the fact that he is a man made in the image of God. [Renewed cheers.]
The image of God stamped upon him certifies him to be free. [Cheers.] The human form divine with which he walks erect and proudly looks to heaven, certifies him to be free. [Intense sensation.]
Religious Principles Vs Slavery]
And when all Roman and all European, aye, Asiatic and American laws have decided he shall be free—when that is the universal law of the world, I will not agree that any miserable notion of a temporary expediency shall make me bow down to that very detestable, abominable, horrible, and wicked doctrine, that the color of a man shall establish the fact, or even furnish a presumption of the fact, that he is not free. [Cheers repeated for a considerable time.]
I go on then upon the Constitution of the United States, and I say this man found in the State of Massachusetts is presumed to be free; and therefore, when you seek to make a slave of him, the question is, Shall he be deprived of his liberty? He has his liberty. Shall he be deprived of it? The Constitution says he shall not be deprived of his life, liberty or property, without due process of law.
I admire the arrangement of those three words. I admire the putting of liberty between life and property. There are two schools on this subject: some who think life is worth more than property, some who think the life of a man is worth more than the shirt upon his back; and others who have a sacred regard for the dollars a man possesses,and believe that his purse is vastly more important than his person. If a man thinks that life is the more important of the two, then is liberty placed most appropriately by the side of it. If on the contrary he thinks property of the most importance, then liberty takes precedence even of that. Between property and life, it is in either case in a respectable position. [Applause.]
What is "due process of law?" Let me say why it was that that [Fifth Amendment] clause was put there. For all these safeguards are inserted in the Constitution by its framers, or by those who amended it, because they knew what had happened in the past. Men had been deprived [in England] of their lives, their liberty, and their property, without due process of law.
They [the Founding Fathers] had in their minds [to ban] the practices in the house of Stuart under James I, and Charles I, and in a degree under Charles II, and James II. Men's liberties had been taken away without due process of law, without trial by jury. This was accomplished by means of the Star Chamber, without trial by jury, without the confronting of witnesses. In that Star Chamber, and also by means of certain other courts, the liberties of the citizens were taken away. Commissioners were also appointed, constituting irregular courts, not the courts of the king's bench, nor any other courts, with stated terms; but this appointment was effected by selecting certain individuals, fit tools of the tyrant. These would constitute a [so-called] court, for the ex-
press purpose of trying a certain man. Commissioners were appointed who went down and tried the case without a jury, and without a public hearing and without confronting the witnesses. In that way men's liberties have been taken away.
This [abuse, denying people a jury trial] was no new thing under the Stuarts. It had been done [for centuries] under the Tudors, under the Plantagenets, and even before the Plantagenets. This very ancient abomination [refusal of a jury trial], this hoary [ancient] survivor [relic] of the iniquities of a thousand years had been among the causes of the civil wars between the monarch and the subject, in which British swords were sheathed in British hearts, till the genuine Norman nobility was almost exterminated from the land. It [the refusal of a jury trial] was denounced in all the Bills of Rights in the English language, and in charters before the English language was known, in Magna Charta, before Magna Charta, and perpetually in all proclamations of liberties afterwards.
When this [due process] article was added to the Constitution [in the Fifth Amendment], those who did it [the Founding Fathers] meant to guard against these usurpations of power. Governments are the same in all ages, and these things might be done in our nation as well as elsewhere. No man shall "be deprived of life, liberty, or property, without due process of law." By due process of law, they meant in due process of proceeding in common law. It was the taking away of the trial by jury, it was the taking away of the habeas corpus, it was Star Chamber doctrine—it was all this against which they [the Founding Fathers] acted.
What was due process of law? That general examination of the Constitution, of which I have given you only a sketch, would show you what it was. To prevent any possible ambiguity, they said, in the seventh article of amendments [the Bill of Rights],
And they supposed when they had secured both criminal prosecutions and civil suits, that they had covered everything. They meant to cover all things, except well known and well defined proceedings in admiralty, proceedings in chancery, and also courts martial. They meant to include all save those exceptional cases, and they did not suppose that anybody would imagine that the trial of a man's liberty was one of these. The writ to ascertain whether a serf belonged to the lord who claimed him, is one of the oldest in the common law.
Will any one rise up and say that a man's liberty is not worth twenty dollars? If a man owes another eighteen or twenty dollars, and it costs a hundred dollars to get it, he would certainly better not have a jury to try the case. All sums below twenty dollars cannot be tried by a jury for this reason, viz., that it would cost more than that to try the case.
Some limit it was necessary to fix; and that amount was selected as the most appropriate. They never dreamed that any man's liberty would not be considered worth twenty dollars. What is a man's liberty worth? Will the owner say it is not worth twenty dollars? If it be worth to the master five hundred dollars, is it not worth as much to the man himself? No slave would escape, no master would pursue him, no master would keep him, if he were not worth more than twenty dollars. But,
Now the Supreme Court of the United States have decided (in the case of Lee against Lee [8 Peters 44; 4 Cranch C. C., 643]) that a man's liberty is worth to him, in all cases, more than one thousand dollars, and that where there is no appeal unless the amount in controversy exceeds one thousand dollars, if the liberty of the party be brought in question, he shall have his appeal.
Due process of law is meant to distinguish the careful, guarded, strict, precise manner known to the English law, from the summary military process used in time of war. There can therefore be no doubt, that a person [allegedly] held to service is, by due process of law, entitled to his trial by jury. [Applause.]
There are other questions entitled to consideration, if I did not perceive that the hour is approaching at which a great portion of my audience will be obliged to leave the hall if they wish to reach their homes to night. [Cries of "Go on! go on!"]
I lay down two propositions: First, that the government have no jot or tittle of power, authorizing them to act for the rendition of fugitive slaves; and second, even if they had such a power, this clause would require that it should be exercised under due process of law, which due process of law includes a jury trial. [Applause.]
A jury trial, where? "A person HELD to service shall be delivered up." Certainly, in the place where he is seized! He should be tried by an impartial jury. It is said, carry a man from Maine to Texas, and then he can have his trial. I should prefer not to run that risk if I were liable to be arrested. I would make it certain whether I had been held to service,
before I ran the risk of perpetual servitude, by being carried into a slave State.
But that is not all. Suppose that every man who claims a fugitive slave were as wise as Solomon, and as upright as Sir Matthew Hale.
The rule at the South is, that a colored man is a slave till he be proved free. He may be free and unable to prove it, because he has lost his free papers. He may be free because his mother and grandmother were free before him, and they might not be able to testify in a Southern court.
Suppose that they [Southerners] should always construe their laws fairly. Would you send a man back to a system of laws where a man is presumed to be a slave? ["No! no!"]
I say no! Never! Try a man where he is presumed to be free. [Cheers.]
I will go no further, but simply read these resolutions which I believe embody the substance of what I have said, and leave them to your decision. I have made this explanation, though I knew that it would he distasteful to some persons who have heretofore voted for me. I want them to show their numbers in favor of the expediency of making a change in the candidate. I want the Democratic party to strike out [decide] the course which they will choose to pursue, and I think they need no assurance from me that in any course they may adopt, for the furtherance of sound democratic principles, the ancient principles of old fashioned liberty, they will find in me a zealous coadjutor [advocate].
I will read the resolutions, because they state my position more clearly than the remarks which I have had the honor to address to you. [The Hon. gentleman closed amid enthusiastic applause.]
The resolutions were then put to vote, and the response shook the hall like thunder. And they were passed by an overwhelming aye, to one solitary "no"!
Mr. Rantoul was then unanimously re-nominated for Congress.
|Ed. Note: This is one of the four abolitionist constitutional-law writings cited by the historical document reference book by William H. Pease, Ph.D., and Jane H. Pease, Ph.D., The Antislavery Argument (New York: Bobbs-Merrrill Co., 1965), pp 370-383. That book contains "representative selections [of] the many dimensions and varieties of antislavery thought."
Rantoul did not just talk about the cited rights. He fought in court for them. See, e.g., J. Stone, reporter, Trial of Thomas Sims on an Issue of Personal Liberty, on the claim of James Potter of Georgia, against Him, as an alleged Fugitive from service. Arguments of Robert Rantoul, Jr. and Charles G. Loring, with the Decision of George T. Curtis, Boston, April 7-11, 1851 (Boston: W. S. Damrell & Co., 1851).
(7 April 1851) in
Sim's Case, 61 Mass. (7 Cush.) 285;
1851 WL 4490 (1851)
on Behalf of the Accused Mr. Sims
R. Rantoul, Jr., for the petitioner.
The power which the commissioner is called upon in this proceeding to exercise is a judicial power, and one which, if otherwise lawful, can be exercised only by a judge of the United States, duly appointed; and the commissioner is not such a judge. He has therefore no jurisdiction of this case, and this court should order the petitioner to be discharged. Opinion of Tilghman, C. J., Commonwealth v. Smith, 5 American Register, 168, 171.
The power here given is the whole judicial power of the United States; and congress has no authority to confer any portion of judicial power on any other persons. Martin v. Hunter, 1 Wheat. 304, 327, 330 [14 US 304; L Ed (1816)].
A commissioner is not a judge within the meaning of the constitution, for he is not appointed to hold his office during good behavior, but at the pleasure of the circuit court of the United States; and he does not receive a compensation for his services at stated times, but is paid by fees, the amount of which depends on his decision—being ten dollars if he decides for the claimant, and five if he does not. Act of 1850, c. 60, § 8. The commissioner cannot, therefore, exercise judicial power.
Now, are the duties of the commissioner, under this act, an exercise of judicial power? The constitution of the United States, in art. 3, § 2, provides that "the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority." See, on the construction of this clause, Cohens v. Virginia, 6 Wheat. 264, 379, 407 [19 US 264; 5 L Ed 257 (1821)]; Parsons v. Bedford, 3 Pet. 433, 446 [28 U.S. 433 (1830); L Ed]. The proceedings, provided for by the act of 1850, of themselves constitute a case within the meaning of this clause. Any proceeding whereby a party invokes the aid of any tribunal to render him any right, which he demands, and which is denied or withheld from him, constitutes a case.
The act of 1850, c. 60, § 6, calls this proceeding "a case,"and directs the commissioner to "hear and determine" it; and his certificate, when granted, is conclusive, and the claimant can take away the captive wherever he pleases. And § 4 gives the commissioner concurrent jurisdiction with the judges of the circuit and district courts of the United States. Attorney General Crittenden, in his opinion, given to the president on the constitutionality of this law in another respect, says, that § 6 "provides that those officers, and each of them, shall have judicial power and jurisdiction to hear, examine and decide the case." [5 Opinions of Att. Gen. of U. S. 255.]
The decision of the commissioner is conclusive of the fact, that the person claimed owes service to the claimant. As Attorney General Crittenden says,
If this be not so; if the commissioner be not required to decide this question, but only whether the alleged fugitive shall be taken back to the state from which he is alleged to have fled, the act is yet more grossly unconstitutional; for art. 4, § 2, of the constitution only authorizes a "person held to service or labor" to be delivered up; not one merely charged, or claimed. By contrasting this with the preceding paragraph, concerning fugitives from justice, the difference between the two cases appears clearly. That paragraph provides, that "a person charged in any state with treason, felony or other crime, who shall flee from justice," shall be delivered up; and the reason is, that he may be tried by a jury of the vicinage in which the crime is said to have been committed.
A prima facie case is all that is required in the case of a fugitive from justice. But it is not all in the case of an alleged fugitive from service, who is the inhabitant of a free state. He is here presumed to be free. [Massachusetts] Declaration of Rights, art. 1. And the constitution of the United States does not allow him to be given up, to be carried thousands of miles from his home and friends, to be tried, if tried at all, in a state where all the presumptions of law and fact are against him on account of his color; and with no security that he will be able to obtain a trial.
If the act requires that the alleged fugitive from service shall be sent back, without finding out whether or not he be actually held to service under the laws of another state, the act is unconstitutional, because there is no power given to congress by the constitution to pass such an act. Congress, if it has any power in the premises, can only pass an act declaring that the person held shall be delivered up. If congress undertakes to do more, its acts are void. On the other hand, if it is first to be ascertained whether or not the party claimed be really held to service, then the decision of the commissioner is final on this question; his decree is the last act of judicial power, which power the commissioner has no authority, under the constitution, to exercise, not having the unchangeable salary or the permanent tenure of office, without which no man can constitutionally be made a judge.
Congress has no power, under the constitution of the United States, to legislate at all on the subject of fugitive slaves. The government of the United States is a government of limited powers. It has no powers that are not expressly delegated to it by the constitution. The powers not expressly delegated to it, are reserved to the states respectively, or to the people. Const. of U. S., Amendments, art. 10; [Massachuetts] Declaration of Rights, art. 4. The force of this argument, as applied to the subject of fugitive slaves, will better appear by an examination of the previous clauses of the fourth article of the constitution.
The first section of that article provides that
These words, of themselves, only declare what shall be done; they are no grant of power to congress; and, therefore, the framers of the constitution added:
The first paragraph of the second section of the same article declares that the
This is a direction to the states, and to no one else. There is no power given to congress to act, as there is in the first section; and congress has never acted on any such supposed power.
Then comes the second paragraph:
This clause does not necessarily imply that it must be executed by congress; for it can be executed by the states. The duty enjoined by it is now performed by the states, though regulated by a federal law. But a state might make regulations on the subject, as well as congress. And the constitution declares [in, e.g., the Ninth and Tenth Amendments], that what is not expressly delegated to the general government is reserved. Therefore congress has no power to legislate on the subject of fugitives from justice.
But the objection is still stronger, as applied to the third paragraph, which is the one now in question. So far from any power being granted to congress, direct reference is made to the states.
The prohibition, in its form, as well as from its nature, is directed to the states only; and so is the command to deliver up. This clause stands precisely as the first section would have stood, if no power had been expressly granted therein to congress.
Overview of the
Unconstitutionality of Slavery
Testimony of Slavery Conditions
G. Smith's 1839
Letter to Henry Clay
G. W. F. Mellen's 1841
Unconstitutionality of Slavery
A. Stewart's 1845
Unconstitutionality of Slavery
L. Spooner's 1845
Unconstitutionality of Slavery
Benj. Shaw's 1846
Unconstitutionality of Slavery
J. Fee's 1851
Wm. Goodells' 1852
Slavery and Anti-Slavery
H. Stowe's 1853
History of Slavery aka Key
A. Lincoln's 16 Oct 1854
E. Rogers' 1855
Unconstitutionality of Slavery
F. Douglass' 1860
Unconstitutionality of Slavery
Republican Platform (1860)
C. Sumner's 1860
Barbarism of Slavery
The UK ARM Site