An able writer in the Vermont Chronicle says:-
| "This provision of the Constitution required no law of Congress to give it effect. It presents a judicial question, to be prosecuted and decided by the judiciary of the United States; and when Congress had established judiciary, it had done all that was necessary to the execution of this clause of the Constitution.
"The Constitution gives no power to the master to seize and carry away the slave on his mere right; it does not constitute him to be the judge in his own case; but the slave is to be delivered up, on the facts being established in the court. The claimant presents his claim to the Federal Court, which would proceed, by the known rules of law, to determine it.
"And the mode would be by habeas corpus, or by writ of de homine replegiando, at the election of the party. Both are writs of right, and appropriate remedies. Tlie first, when the person claimed is in custody of a third person; the second, when he is at large.
"We are aware that it has been contended by Southern Senators, and by one Senator from the North, that the owner of a slave has the same right to seize his slave, in a free State, as he has to seize his horse. But that Senator did not seem to call to mind that his own State does not recognize a property in man as it does in a horse; that in that State every person therein is presumed to be free until the contrary is proved; and that there no freeman can be restrained of his liberty 'without due process of law.'" |
2. Congress cannot invest "Commissioners" with the power to adjudicate on any subject.
This is a very serious question. The calling of the adjudication a "certificate" is an absurd attempt to throw dust in the eyes of the
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public. If Congress can authorize "Commissioners" to determine a claim affecting a man's liberty in the way provided by this Act, where is the limit of its power?
What is to hinder it from enacting that "Commissioners" shall determine all cases arising under the laws of the United States, and that without the intervention of a jury?Why cannot Congress authorize "Commissioners" to try a man for treason summarily, and to sentence him to be put to death?
Because the Constitution has carefully guarded the people of the several States—and that whether citizens or inhabitants merely—from this exercise of absolute power under the pretense of judicial proceeding.* Does calling the adjudication, under this Act, a "certificate" render it less unconstitutional?
The Constitution provides as follows:—
| "The judicial power of the United States shall be vested in one Supreme Court, and such inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office."—Art. 3, Sec. 1. |
The "Commissioners" are not judges of "inferior Courts" within the meaning of this clause. By sec. 2 of the same article, the judicial power is to extend to all cases in law and equity arising under the Constitution, the laws of the United States, &c. So that the Federal Courts have jurisdiction over claims to persons alleged to be held to service or labor who escape from one State into another.
The new Act, sec. 4, provides that the "Commissioners" appointed by the Courts to take depositions, &c., "shall have CONCURRENT JURISDICTION with the Judges of the Circuit and District Courts of the United States" in their respective Circuits, and shall grant certificates to claimants, Ac., of persons alleged to be fugitive slaves, with authority to take and remove them.
The Courts may have power to appoint Commissioners to take affidavits and acknowledgment of bail, but THEY CANNOT DELEGATE TO "COMMISSIONERS" THE POWER OF TRYING A CAUSE, NOR CAN CONGRESS AUTHORIZE THEM SO TO DO.
The Act in question provides, that the party arrested as a fugitive slave shall be taken before a Commissioner who is authorized to take depositions, &c., and that such Commissioner shall "HEAR AND DETER-
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* The arguments on this and several subsequent pages, are from an able article in the New-York Tribune of October 4th, 1850.
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MINE the case of such claimant in a SUMMARY MANNER," and shall make out a "certificate!" which "shall be conclusive of the right" to remove the fugitive to the State or Territory from which he escaped. The "Commissioner" has to try and determine whether the person claimed was lawfully held as a slave in any State or Territory—whether he has escaped into another State or Territory—and whether the person claiming him is the lawful owner.
And yet it is pretended that the "Commissioner" is not exercising a "judicial power," because, forsooth, it is alleged that there may be another trial in the State to which the person said to be a slave is removed. There is no force in this argument. The decision of the "Commissioner" is not the less an adjudication, because the question involved in it may be raised again in another shape with the alleged slave as the plaintiff instead of defendant.
| Ed. Note: Slave states banned slaves from testifying against whites.—H. B. Stowe, Key (1853), p 241. |
Would not the words of the Act, declaring that the "certificates" "shall be conclusive of the right of the person or persons in whose favor they shall be granted to remove such fugitive to the State or Territory from which they escaped," be deemed an estoppel? This question, however, is perfectly immaterial; it does not matter whether the issue involved in the trial before the "Commissioner" could or could not be inquired into again—the "Commissioner's" decision is to all intents and purposes a judgment, and it consigns the defendant to slavery.
The proceeding before the "Commissioner" has been compared by some of the pro-slavery advocates to an examination of a party accused of crime; and it is said that as a man charged with felony may be committed for trial, or sent, without the interposition of a regular Court, to another State for trial, it follows that a man may be adjudged to be a slave by a "Commissioner," delivered to the complainant as his property, and sent to the State from which it is alleged the escape was made.
Those who are unaccustomed to pro-slavery law logic, will be a little startled at this transparent absurdity. It is perfectly obvious that there is no analogy between the two cases.
In the one case the party is sent for trial, and is not treated as a felon until convicted;in the other case there is a positive adjudication that the man is a slave who has escaped from his master, and that such master has claimed him and established his title.
The Act expressly requires such adjudication. When a man is given up as a fugitive from justice, it is not determined that he is guilty, but only that he is accused in the regular form; and if the Act in question
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had merely provided that the "Commissioner" should send a party claimed as a slave to be tried in the State from which it is alleged he'd made his escape, the objection now under consideration might have been avoided, although certain other objections would still have been raised to such a mode of proceeding.
3. The bill denies the privilege of a trial by jury.
The Constitution of the United States [Seventh Amendment] secures a trial by jury in suits at common law in all cases where the value in controversy exceeds TWENTY DOLLARS; but here, where the matter in controversy is the liberty of an immortal man, and all his hopes of happiness in the life that is, and that which is to come, no jury is allowed!
| "A human being," says Judge Jay, in commenting upon this law, "is stripped of every right, and reduced to the condition of a vendible beast of burden, with less ceremony, and with more celerity than one neighbor can recover of another the value of a pig in any court of justice." |
But will the North endure this? The claim of the slave-holder is stricti juris. It is entitled to no equitable construction of the Constitution. The claimant is entitled, if anything, only to the pound of flesh. "It is so nominated in the bond." Let him have no more.
Could Congress authorize even the regular Federal Courts to try a claim to a man as a slave in a summary manner, and without the intervention of a jury? If not, then the Act of 1793 is unconstitutional, for reasons different from those which show the unconstitutionality of the new [1850] Act. Can Congress lawfully authorize the determination of any matter affecting the life or liberty of an individual in a summary manner? Most of the State Constitutions are very careful in preventing the Legislature from indulging in such enactments.
Let us see whether the provisions in the Federal Constitution are really so illusory as to allow a man to be deprived of his liberty on the mere fiat of a Judge, in Kadi fashion. If so, then those provisions affecting [purporting] to protect the people from tyrannical judicial proceedings are a mere mockery, a delusion, and a snare.
Article 5 of the Amendments of the Constitution declares that no person shall be "deprived of life, liberty, or property, without due process of law." Art. 6 further provides that in criminal prosecutions the accused shall enjoy a speedy and public trial by jury, and be confronted with the witnesses against him.
The Act of 1793 enacts that when a slave escapes into another
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State, the owner, his agent, &c., may, without warrant, arrest the slave [Ed. Note: the Law did NOT say that word] and take him before a Judge of the Circuit or District Court of the United States, or before any magistrate, and upon proof of the title to the slave, the judge or magistrate is to give a certificate to the claimant which is to be a warrant for taking the slave.
The 1793 Act carefully abstained from making it the duty of any officer, or citizen, to aid him in chasing down his trembling victim; nor was there in it a provision authorizing any officer to issue and to have process for the capture of such fugitive. The whole duty of our people under that law consisted its keeping aloof, and not intermingling between master and slave.
Several Judges of the Supreme Court or Circuit have affirmed the unconstitutionality of this law [Ed. Not enough then to void it], but when the composition of the Supreme Court is changed so that the Judges are chiefly from the free States, this law will, no doubt, be treated as void for want of power in Congress to enact it.*
The "equilibrium" [Ed. Note: Senate having equal numbers from slave and free States] will soon be destroyed [Ed. Note: by admission of new free states such as California, Kansas, etc.]— the free States will predominate in the Senate, and the office-seekers of all grades will profess anti-slavery sentiments.
Many things which have been taken for granted and passed unquestioned, will be opened up for discussion, and not a few of the decisions of the Supreme Court on slavery questions will be overruled. The idea that trial by jury and the habeas corpus, guaranteed by the Constitution, shall be no protection to a man who is falsely claimed to be a slave is a sheer absurdity, and will be so treated before the lapse of many years from this time.
| Ed. Note: This came to pass, in 1860, with Lincoln's election, though Tappan in 1850 did not foresee/predict the South's violent reaction to no longer being dominant—revolution, secession. |
[Violates "Ex-Parte" Evidence Principles].
4. There is another provision in the new Act of a most extraordinary
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* In the celebrated [1842] Prigg case, Judge [Joseph] Story [1779-1845], in the name of the Supreme Court of the United States, said that the law of 1793, upon which the [1850] Fugitive Slave Act is founded, was, in some respects, not free from reasonable doubt or difficulty as to its constitutionality. Eminent jurists in several States have given opinions decidedly against the constitutionality of the Act. Senator Baldwin, fifteen years since [1835], was of this opinion, and Hon. Thaddeus Stevens, M. C., from Pennsylvania, styled it, on the floor of Congress, INFAMOUS.
It is said by the servile press, "This law is no worse than the law of 1793. General [George] Washington [then President] approved that law; it has been in operation sixty years, &c." General Washington was a slaveholder also, but he repented of it, and by will, emancipated the whole of them. The law of 1793 has never been allowed [admitted] to be constitutional by the most eminent lawyers of the country. Just the reverse.
Can any sound-minded man believe that a law that authorized the Federal Courts to try a claim to a man as a slave, without a warrant or the intervention of a jury, can be constitutional? And if Congress, during the Presidency of Washington, enacted an unconstitutional law, on the subject of slaves, such a Congress as the present one might do the same. Under the screws of party, a desire to propitiate the South, the usual clamor near the close of a session, in the fumes of champagne, and cries for the previous question, infallibility could not be expected of such a Congress.
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character, viz.: that in section 10, which enables a person to go before a court of record and claim another as his slave who resides in another State, and to establish such claim on ex parte evidence, without any notice to the party interested. A record is to be made up which is to be conclusive! This is the most daring violation of the first principles of justice, that can be found in any country.
And it is worthy of observation that, although the Constitution provides that (art. 4, sec. 1)
| "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State, and that Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof," |
it has been held in this State that no judgment pronounced in another State, without actual notice to the party sought to be affected, shall be entitled to faith and credit, because it is obviously unjust. 3 Phil. Ed. 909 Cowen's Notes.
The Act, moreover, does not require this ex parte proceeding to be like other judicial proceedings; the judgment may be rendered by a Judge in vacation, without a jury; and any Court of Record in any State, Territory, Ac., or any Judge thereof in vacation, is authorized to perform this mockery of a trial.
Now, I must utterly deny the power of Congress to authorize such proceedings, either in the State or Federal Courts, or to give any validity to the records of them as evidence in other States.
It is clear that Congress has nothing to do with the State Courts, and cannot authorize them to try causes without a jury or without notice to the defendant. CONGRESS CANNOT CONFER JURISDICTION UPON A COURT NOT CREATED BY THE CONSTITUTION AND LAWS OF THE UNITED STATES.—Houston v. Moore, [18 US 1, 26], 5 Wheat. 26, [5 L. Ed. 19 (1820)].
Congress has power by art. 4 of the Constitution, sec. 1, to prescribe the manner in which the acts, records, and judicial proceedings of the several States shall be proved, and the effect thereof, but it has no power to direct judicial proceedings by which a man may be deprived of his life, liberty or property, without "due process of law." AN EX PARTE PROCEEDING 1S NOT IN "DUE PROCESS OF LAW," WITHIN THE MEANING OF THE CONSTITUTION.
Suppose that a free man, white or colored, is claimed by a person in Virginia as his slave, and the claimant goes before a Judge and makes out his title without any notice to the party claimed, is it to be tolerated that a "record" of this form is to be all-sufficient to consign a free man to slavery? No,
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the title has to be made out in a very different manner, notwithstanding all that Congress may enact to the contrary. ACTS OF CONGRESS CONTRARY TO THE CONSTITUTION ARE VOID, AND COURTS OF JUSTICE ARE BOUND SO TO DECLARE IT. Cohen v. Virginia, [19 US 264] Wheat. 881. [(1821].
5. The bill allows of no appeal from the decision of the commissioner.
The Fugitive Slave Bill, section VI., constitutes the commissioner a court, from whose decision there is no appeal! There shall be no "molestation of said person or persons, by any process issued by any court, judge, magistrate, or other person whomsoever."
The commissioner, whoever he may be, a Postmaster, Collector, Tide-waiter, Ward Justice, Street Inspector, Clerk of the Market—in the recent case, the Clerk of the Circuit Court—is constituted the High Court of Judicature, his decree is irreversible, and neither any judge of the State Courts, nor United States Court, can issue the writ of Habeas Corpus, for the purpose of inquiring whether the person has been illegally deprived of his liberty.
6. The bill does not, on the hearing, allow to the alleged fugitive any of the privileges allowed by the Constitution to defendants in civil or criminal cases.
| Ed. Note: "Personal liberty, which is guaranteed to every citizen under our constitution and laws, consists of the right to locomotion, to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. . . .
"Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees." Pinkerton v Verberg, 78 Mich 573, 584; 44 NW 579, 582-583 (1889). |
7. The bill makes an ex-parte judgment of a court in one State conclusive against the alleged fugitive in the State where arrested.
This 10th section, from beginning to end, is in direct violation of the
first section of the fifth article of the Constitution of the United States. Congress has no power but by a general law (applicable to all cases) to prescribe the manner in which records shall be proved, or the effect thereof.
8. The bill suspends the Habeas Corpus Act.*
The Habeas Corpus is the great bulwark of Liberty,—the Magna Charta of the civilized world. The framers of our Constitution so understood it, and in section IX. inserted this memorable clause :—
| "THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED UNLESS WHEN, IN CASES OF REBELLION OR INVASION, THE PUBLIC SAFETY MAY REQUIRE IT." |
There was no "rebellion or invasion" in the land when the bill was passed, although it is impossible to tell how soon the fact will be
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* Habeas Corpus—"You may have the body before the Court." This is the great writ of personal liberty. It lies, where a person, being indicted or imprisoned (and an illegal arreat is in law an "imprisonment") unlawfully or unconstitutionally, applies to another tribunal for relief in the premises.
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otherwise, if its diabolical provisions continue to be carried out. The Fugitive Slave Bill aims pointedly to destroy this great Act, by providing that the certificate of the Commissioner
| "SHALL PREVENT ALL MOLESTATION OF SAID PERSON OR PERSONS (THE CLAIMANT AND HIS AGENTS) BY ANY PROCESS ISSUED BY ANY JUDGE, MAGISTRATE, OR OTHER PERSON WHOMSOEVER." |
This infamous bill declares that such writ shall not issue when slavery demands any man, woman or child, of any color or condition, as a slave!
Mr. Attorney-General Crittenden has given an "opinion" that
| "there is nothing in the bill which conflicts with, or suspends, or was intended to suspend the privilege of the writ of habeas corpus." |
He says further:
| "There is no incompatibility between these provisions of the bill and the privilege of the writ of habeas corpus, IN ITS UTMOST CONSTITUTIONAL LATITUDE." |
What an insult to the common sense of every American citizen! It is true that the bill does not in terms mention the habeas corpus, that it does not in terms forbid the issuing of habeas corpus.
But we do say that if the writ of habeas corpus be a process, issued by a court, judge, or magistrate, then this act does, in the most direct and absolute terms, prohibit the execution of the writ of habeas corpus. And is this Mr. Crittenden's constitutional latitude of the writ of habeas corpus?*
We do not forget that Felix Grundy, when Attorney-General, gave an "opinion" to [Martin van Buren (1837-1841)] the President of the United States, previous to the issuing of the famous order to deliver up the Amistad captives "to the order of the Spanish Minister," that the nefarious act would be legal. But the Supreme Court decided otherwise almost unanimously.
Will it not, with respect to the Fugitive Slave Bill, pronounce it unconstitutional, and therefore NULL AND VOID? Slaveholding attorneys may give "opinions" to remove the scruples of modern Pilates; but when the matter comes before the highest judiciary, slaveholders though the majority may be, they will hesitate long before they trample the Constitution in the dust, and consign themselves to everlasting infamy.
9. The Bill Includes Fugitives from the District of Columbia.
The clause of the Constitution already referred to, says :—
| "No person held to service or labor in one State, under the laws thereof, and escaping into another, shall, in consequence of any law |
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* Writer in Vermont Chronicle.
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| 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." |
| Ed. Note: Most fundamentally, of course, there was never a "right" to service by slaves. No slave had signed a contract to serve! (This is in contrast to indentured servants, who had signed such contracts). See, e.g.,
Lysander Spooner, Unconstitutionality of Slavery (Boston: Bela Marsh, 1845, 3rd ed, 1860), pp 67-73
Benjamin Shaw, Illegality of Slavery (Boston: 1846), pp 10-11. |
Mark the expression [terminology, wording used]. The meaning clearly is "another State," not a Territory. A slave, then, escaping from a Territory of the United States into one of the States, cannot constitutionally be pursued and remanded into slavery.*
Of course, that portion of the Fugitive Slave Bill, which authorizes the arrest of an alleged slave who has fled from the District of Columbia, the certificate of the commissioner, and the carrying back the prisoner, in chains, by the marshal, is unconstitutional, and therefore null and void.
The 2d sec. of art. IV., in the clause relating to fugitives from labor, as well as the clause relating to fugitives from justice, establishes, as has been well said, a relation between States of the Union.
It has been decided that the act of 1793 did not extend to the District of Columbia. Lieut. Randolph, who made an assault on President [Andrew] Jackson [1829-1837], fled to Virginia and was demanded, but was discharged, not on the ground that the District of Columbia was not named in the Act, but on the ground that it was not a State.
The District of Columbia, not being a State within the meaning of the Constitution, it is clear that Congress has no power to extend this article of the Constitution to that District.* "It is entitled to nothing that is not nominated in the bond."
The Bill Subverts the Common Law.
The COMMON LAW,† so dear to our forefathers, and to all who value their civil rights, as the foundation of all written law, is, in several places, recognized in the Constitution of the United States. It guarantees to every accused person [the right] to meet his accuser or claimant face to face, in open Court—to examine his own witnesses—to employ counsel, and should he be poor, to have counsel assigned by the Court—TO BE TRIED BY AN IMPARTIAL JURY—and if convicted to be allowed to appeal to a superior tribunal.
The COMMON LAW was the birthright of our English ancestors—it is the birthright
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* Whoever defends William L. Chaplin, must take the ground that it is no crime, under the Constitution, to aid a bondman to escape from the District of Columbia into Maryland, or any other State; to say nothing here of the fact that slavery itself does not constitutionally exist in the District of Columbia.
† The lex non scripta, or unwritten law, includes not only general customs, or the common law, properly so called, but also the particular customs of certain parts of the kingdom, and likewise those particular laws that are by custom observed only in certain courts and jurisdictions.—Blackstone.
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of every American citizen, and it cannot be wrested from them. The black man, residing or being in a free State, can claim its privileges, be he a citizen of such free State, or a temporary resident. It is unconstitutional and tyrannical to attempt to deprive him of its privileges.
| Ed. Note: Habeas Corpus covers everyone, citizen, foreigner, alien, temporary resident, everyone. The famous 1772 Somerset v Stewart case covered a slave detained on an off-shore ship! |
The Fugitive Slave Bill tramples upon the Common Law, and aims to deprive all—every man, woman and child in the community—of its inestimable and sacred provisions. It has been well said:—
| "The proceedings under this statute are authorized expressly to evade common law remedies and rights, and give the victim over to his demandant without common law protection or remedy, against every principle of law or justice sanctioned by any jurisprudence of any people whatever. The defendant is expressly denied the right to prove that the papers adduced against him are a forgery." |
Even those accused of the most atrocious crimes can legally claim each and every privilege secured to them by the Common Law; and so lenient is the administration of justice in the free States of this country, that after conviction great forbearance is shown to the prisoner.
Take the case of Professor Webster. If he had been poor the Court would have assigned him able counsel. He had a fair trial. The jury was one almost of his own selection. The Court sat eleven days, during which time a large number of witnesses for, as well as against, the accused, were minutely and fairly examined. After conviction, his claim to a new trial was argued. Execution was delayed as long as he desired, and meantime the Executive, with extreme indulgence, listened to petitions and arguments for his release, or the commutation of the sentence. And during the whole proceedings, before and after the trial, the prisoner was treated with peculiar kmdness; he was allowed to see his friends, his wife and children; his situation was made as comfortable as possible, and justice was tempered with mercy. But how differently was poor Hamlet treated who had been guilty of no crime but the color of his skin?
Any poor man arrested under the Fugitive Slave Bill, is liable to have no mercy shown him. He may be decoyed, as was Hamlet, under lying statements, by governmental officials, to a court-room; no counsel assigned to him; not permitted to send for his friends; testimony against him taken in an adjoining apartment; adjudged by some understrapper, unconstitutionally clothed with high judicial powers, to perpetual slavery; handcuffed in the court-room; denied the melancholy gratification of bidding his wife and little ones a final
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adieu, or even the miserable consolation of apprising them of his situation; and in hot haste carried to a Southern dungeon. This is done, not in a land of savages or pirates, but in a Christian city—in the Temple of Justice, by men of respectable descent and standing! "The law allows it, and the court awards it."
Northern men willingly become slave-catchers, and take great delight in obsequiousness to Southern slaveholders, and in truckling to their arrogance. Even the sons and grandsons of illustrious men are content to wear Southern livery.
The law requires that the proceedings shall be "summary," and the ministers of the law, with demoniacal impetuosity and cruelty, administer it to the letter. Gracious heavens! do we live in the land of the Pilgrims? Does the blood of Hampden and Sidney flow in our veins? Are we the countrymen of Patrick Henry? Did Lafayette fight to achieve our freedom? Is this the model Republic? Are we MEN?
Infamous Provisions of the Bill.
One of the worst features of the bill is, that it aims to compel every worthy man in the free States to be a slave-catcher. It authorizes the commissioners to appoint "suitable" persons to execute "all such warrants and other process as may be issued by them," for the apprehension of persons claimed as fugitive, with authority "TO CALL TO THEIR AID THE BY-STANDERS, or posse comitatus of the proper county." The 5th section of the bill has in it this most remarkable paragraph:—
| "ALL GOOD CITIZENS ARE HEREBY COMMANDED to aid and assist in the prompt and efficient execution of this law, whenever their services may be required."* |
We ask every citizen in the free States, if he does not feel all about his heart and conscience, that a law like that has no claim upon him, and that it is absolutely void? We were once told by those who made this law, that "we had nothing to do with slavery." Verily slavery has much to do with us, and necessarily we have much to do
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* Let this command of Congress be read in connection with the command of God, found in Deut. 23d chap., and 15th and 16th verses:—
| "THOU SHALT NOT deliver unto his master the servant which is escaped from his master unto thee: he shall dwell with thee, even among you, in that place which he shall choose, in one of thy gates where it liketh him best; thou shalt not oppress him." |
Professor Stuart, says the N. Y. Observer, has shown very satisfactorily that this passage has no application to the case of fugitive slaves in this country, because it referred to fugitive slaves escaping from the heathen nations to the Jews, and not to slaves escaping from such a Christian country as the slaveholding States of America!
Ed. Note: See the actual truth, general applicability, of the Hebrew Covenant, as cited by H. B. Stowe, Key (1853), pp 115-120.
See also Christian reaction to the "Slave Power" having forced through this Act of Congress urging Christians to violate Bible law by e.g., Harriet Beecher Stowe and Richard Hildreth. Reference also Acts 5:29, on obeying Bible law vs politician law. |
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with it, in whatever it has to do with us.
It is not enough that it [the South] seizes our Northern seamen in Southern ports, and sells them into slavery—not enough that it denies us the benefit of the laws, and mobs us when we go there to bring the cases of our enslaved and persecuted citizens before the courts—but with unaccountable insolence, it enacts that we shall return them to bondage if they escape to their Northern families and homes.
It constitutes at the North, in our neighborhoods, and by our firesides, the most anomalous, overshadowing, insulting, and despotic police that perverted mind can contrive, or guilty power sustain—a police which guilty power cannot sustain, until honor, and purity, and freedom have fled from among us, and we have consented to be the most drivelling, and base, and worthless slaves that ever crawled at the foot of tyranny.
Be it remembered, he who is forced to serve is no more a slave than he who is forced to compel others to serve. Nay, we hold that slavery the most degrading, that forces us, whether we will or no, to force others into bondage, and keep them there for the use and benefit of inhuman monsters, who shake their manacles over both, and open our own prisons to both, if we fail to obey their insolent and hellish behests.
This law leaves the freemen at the North no alternative. HE MUST DISOBEY THE LAW.*
The following PLEDGE has been prepared, with a view to its extensive circulation:—
Pledge.
WHEREAS, THE LATE ACT OF CONGRESS, CALLED THE FUGITIVE SLAVE BILL, MAKES A REFUSAL TO AID IN THE CAPTURE OF A FUGITIVE A PENAL OFFENSE, THE SUBSCRIBERS, BEING RESTRAINED BY CONSCIENTIOUS MOTIVES FROM RENDERING ANY ACTIVE OBEDIENCE TO THE LAW, DO SOLEMNLY PLEDGE OURSELVES TO EACH OTHER RATHER TO SUBMIT TO ITS PENALTIES THAN TO OBEY ITS PROVISIONS.
It is recommended that this PLEDGE be printed in hand-bill form, and posted up in every dwelling-house, store, shop, manufactory, exchange, school-house, and other public place throughout the land, and that suitable persons present it to the people, extensively, for their signatures.†
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* In examining the bill we have made free use of the excellent remarks of the editor of the Liberty Party Paper, printed at Syracuse, N. Y.
† If the friends of the cause will collect such pledges and send them to Lewis Tappan, 61 John street, New-York, in the course of this year, the names can be
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The Bribe Offered in the Bill.
Another odious feature of the bill is, that it proposes a bribe to the cupidity of the sunken and worthless spirits, who, alone, will accept a commission under it. Mark the direct terms of the bribe:—
| "In all cases where the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars, in full for his services in such case, upon the delivery of the said certificate to the complainant, his or her agent or attorney; or a fee of five dollars in cases where the proof shall not, in the option of such commissioner, warrant such certificate and delivery. (Sec. 8.) |
The man who is sunk so low that he is willing to take the office of commissioner, or who being already a commissioner is willing to perform the dirty work assigned him by the bill, has no salary attached to the office, but
is paid TEN DOLLARS for every person he adjudges to be a slave, or a fugitive from labor,
and is to have FIVE DOLLARS in every case where he does not so adjudge.
The majority in Congress who voted for the bill, knew the men who would probably accept the office, or exercise the duties under a former appointment and they instinctively knew the proper stimulating motive. "He who offers a bribe will take one."
Ed. Note: The Supreme Court had already ruled to aid and abet bribery to influence decision-makers.—Fletcher v Peck, 10 US 87; 3 L Ed 162 (1810).
The U.S. Supreme Court is the world's worst court. |
But what man of a truly independent mind would accept an office coupled with such a proposition? It is an insult to any but a caitiff wretch, who would sell his soul for ten pieces of silver.*
Fines and Imprisonment.
A writer in the Albany Atlas says:—
| "By our laws it is made a misdemeanor to refuse or neglect to join the posse comitatus, when required, and is punishable by fine and imprisonment; so that if a citizen refuses or neglects to do that which his conscience as a Christian, or his principles as a republican condemn, he is liable to be indicted, tried, fined and imprisoned. Every male inhabitant is liable to be called to join the posse comitatus, and thus compelled to become aiders and abettors in promoting the cause of slavery and reducing free persons to servitude. This is not the case |
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published, and thus a powerful influence be exerted upon public opinion, preparing the way for the repeal of the diabolical bill.
| Ed. Note: Senator Charles Sumner proposed repeal. See "Freedom National, Slavery Sectional," Cong Globe, 32d Cong, 1st Sess, Appx, 26 Aug 1852, p 202. |
* We rejoice to see, in the Brooklyn Daily Freeman of Oct. 26th, 1850, a letter from the Hon. Samuel E. Johnson, County Judge of Kings County, N. Y., to Alexander Gardiner, Clerk of the Circuit Court of the United States for the Southern District of New-York, declining the appointment of commissioner, which he had received from said Court. He declines because he believes the act unconstitutional, and because the acceptance might conflict with his duties as a Judge, should he be applied to for the writ of habeas corpus.
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| of a person escaped from service or labor only, but of any person claimed under the ex-parte evidence brought from the South, which the law declares full and conclusive. Our laws make it piracy to kidnap in Africa, but this law not only affords the means, but also protection for kidnapping in the free States; and not only so, but commands all male citizens to become participators in that crime, or to subject themselves to a fine or imprisonment. |
The fine for aiding in the escape of a fugitive, or for harboring or concealing him, so as to prevent his discovery or arrest, after notice or knowledge of the fact that he was a fugitive, is ONE THOUSAND DOLLARS, with IMPRISONMENT not exceeding six months, besides to pay $1000, to be recovered in a suit for civil damages, for each fugitive thus aided or harbored. See section 7, and the Synopsis, on a previous page.
By a literal construction of this section of the bill, a person who harbors or conceals a fugitive, knowing him to be a fugitive, and intending to prevent his discovery or arrest, or so that the claimant is prevented from discovering or arresting him, is liable to the fine! There is an ambiguity in the phraseology—purposely intended it would seem—which may involve a person who conceals a fugitive in any case.
Persons Not Fugitive Slaves Liable
To Be Carried Off Under the Bill.
A colored person brought into a free State by his legal owner and therefore free by the [states rights' ] laws of the free States;* the children born of fugitives in a free State; a person once a slave, who has lost his free papers; all colored persons in the free States, wherever born; indeed every colored person is liable to be seized, certificated, ironed, and carried with railroad speed into a slave State, on the perjured testimony of any two miscreants, before a legally-bribed commissioner, before even his family, neighbors or friends to know anything of the matter. People of color are liable to be kidnapped every day. [Details].
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* By an act of the State of New-York, and by similar acts of other States, a slave brought into the State by his master shall be free. But the Fugitive Slave Bill appears to trample upon the State [rights'] laws in this respect. Such a person—once a slave—muy be arrested under the bill, be taken before a commissioner, and be remanded into slavery. The decision of the upstart, commissioner-judge is "conclusive;" there shall be no molestation by any procedd issued by any court, judge, magistrate, or other person whomsoever! It is true that the language of the bill is, that slaves who shall escape from one State into another State, may be arrested and remanded back; but in the phraseology of slaveholders it is an "escape"—a constructive escape—to run away from the master anywhere. And by the municipal laws of the slave States, the children, grandchildren, and their children's children of a female alave, wherever born, are slaves.
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Attempts have already been made to do it. The affidavit of a slave-holder, and the testimony of some perjured accomplice among our own citizens, will be deemed sufficient by many of these commissioners to entitle the claimant to a certificate.
| Ed. Note: The Supreme Court has ruled to allow pro-conviction perjury (lying to convict innocent people)—Briscoe v LaHue, 460 US 325; 103 S Ct 1108; 75 L Ed 2d 96 (1983). |
No Exceptions on Account of Color.
Another peculiarity of this law is, that it makes no exceptions on account of color. We mention this, not because we detest it any more for that—for indeed we like it the better on that account—nevertheless, we wish our white citizens to understand that our Congress have directly opened the door, by statute, for the enslavement of our own children. It is unaccountable, that parties, for party purposes, can thus resolve their government into a despotism the most downright that has ever existed!
It will be more astonishing still, if the people have so little respect for human freedom as to submit to it. The effect of the law, if carried out according to its letter and intent, is to make the free States the Guinea of America, where the dealers in human flesh may hunt and prowl, under the auspices of the General Government, and pick up their victims, black and white together, for the Southern market.
This Law Applies As Well to Apprentices
and Minors as to Slaves.
It gives the aforesaid unaccountable power and authority, in all cases in which persons are charged as "fugitives from labor." The word slave or slaves is not used by the Act. It treats only of "fugitives from service or labor." In no case are the subjects of this severity called slaves.
This Act, then, reverses all the [states' rights] laws of the State, and other States, regulating "masters, apprentices and servants," as well as "parent and child," in thia regard. A Southern man-thief has but to come among us and demand our children as his children, and claim that they "owe him service," or demand them as apprentices who "owe him service or labor," and they are expressly forbid the right to try the question whether tlie villain's claim is true or false.
The comissioners in such case are ordered by the letter of the Act to give them up and tote them off to legal bondage. The statutes of the State giving jurisdiction, and made to try the right before its own Judges and Justices, are all reversed, and the helpless youth is given up without trial, on the ex-parte affidavit of a foreigner, which he [the accused] may not controvert or impeach, to go hence for ever. Were this law to
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be construed to be applicable to parent and child, and master and apprentice, alone—as by its terms it is only applicable— its provisions would be regarded as too atrocious and despotic to be obeyed. Neither men, nor women, nor children, nor servants, masters nor apprentices, would consent that slaveholders of foreign States should, by so rude a tyranny, break up the primeval and dearest relations of society among us.
And yet Congress, to aid cruel men to hold other men and women as cattle, has expressly interfered with our own domestic relations, and thrown down every barrier, exposing them to the human wolves and lusty man-thieves who prowl for prey amid the desolations of slavery.
Fathers, or mothers, or masters, are expressly forbid to defend their son, or daughter, or apprentice, against the demand of slaveholders, if such demand is but supported by the deposition of a person unknown to such father, master, son, or apprentice in a foreign State, and who therefore could not be contronted or cross-questioned by them; but such son, daughter, or apprentice is ruthlessly torn from the paternal relations, by the power of a free State, (which may God turbid,) and given over to the blackness of darkness of slavery.
The blood almost curdles at the recital. If such an enactment had been promulgated as the decree of the Russian Autocrat, or the military order of the bloody Haynau, men would shudder. Yet Daniel Webster could go for the bill to the "fullest extent," and Moses Stuart could say of him, "Posterity, divested of partisan feeling and prejudice, will erect to him a lofty monument."
Compromises of the Constitution.*
It is said, "The compromises of the Constitution must be observed; these men are not citizens, but only slaves." This is said by those who basely submit to the violation of the Constitution by South Carolina, in imprisoning colored seamen, citizens of Massachusetts, and selling them to pay jail fees, when the Constitution declares,
"The citizens of each State shall be entitled to all privileges
and immunities of citizens in the several States." [Art. IV, § 2]. |
People of color are citizens, by the laws of the free States. Even Virginia recognizes them as citizens, and yet the slave States claim and exercise the right of imprisoning, and even of making slaves of black citizens of free States.
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* It has been truly said, "All compromises belong to the Devils's Code."
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and to expel by force agents sent there by the free States, to procure their release by habeas corpus.
| Ed. Note: The use of habeas corpus to free slaves was well-established, as shown in the case of Somerset v Stewart (1772). |
Yet these [pro-slavery] men cry out that the [alleged] compromises of the Constitution are trampled upon at the North, and Daniel Webster and his retainers insist that we owe it to the South to seize and deliver up fugitive plaves, while the South utterly refuses to relinquish the practice of imprisoning and selling into perpetual slavery, to pay for jail fees, the black seamen of the free States!
While the South repudiates its obligations to the North, the North is not held by its obligations to the South. THE AGREEMENT WAS RECIPROCAL. "It is the duty of the slaveholder," says Judge Allen, "to come with clean hands, having performed his part of the bargain, before you can be asked to perform yours. . . . Tell him to go home and repeal his [seizing Northern-sailors-as-slaves] law before he asks anything of you in regard to the delivering of fugitive slaves."
| Ed. Note: See "clean hands" precedents so stating, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957)
Glus v Eastern District Terminal, 359 US 231, 232; 79 S Ct 760, 762; 3 L Ed 2d 770, 772 (1959) (making clear that a party cannot rely on its own wrongdoing at the starting point of a process)
BTC v Norton CMC, 25 F Supp 968, 969 (1938)
Buckman v HMA, 190 Or 154; 223 P2d 172, 175 (1950)
Stephenson v Golden, 279 Mich 710, 737; 276 NW 848 (1938) ("No one may take advantage of his own wrong")
Robinson v American Broadcasting Companies, 328 F Supp 421, 422, 424-426 (D ED Ky, 1 June 1970) (excerpt) |
This Fugitive Slave Bill has filled the civilized world with astonishment. The Czar of Russia, the Austrian Haynau, even the greatest despot on the face of the earth, may wash his hands in innocency in view of such a bill, enacted by the countrymen of Franklin, Jay, Henry, and their compatriots, in the seventy-fifth year of the Independence of the United States! The bill has made every true American ashamed of his country. It has carried consternation into the dwellings of every free colored family in the free States; men, women and children, born of free parents, and peaceably pursuing their honest occupations, have their heart-strings broken, and are now living by day and night in constant dread of molestation.
Nor is this all: the bill as before stated, makes no allusion to colored people; it applies to persons of all complexions and in all conditions. The liberty of every citizen is placed in jeopardy by this "Bill of Abominations." The oath of any two miscreants, before a corrupt and nefarious commissioner, is sufficient to deprive him of his freedom, and hurry him to a Southern jail. If this bill is submitted to, in the case of a fugitive, free colored, nay, white citizens have no liberty left to boast of, and had better be ctizens of Turkey than of the United States of America.
Let those who voted for the bill, or, being able to attend upon their legislative cities, "dodged" the question, be made answerable at the bar of public opinion, and be consigned to perpetual ignominy; let an indignant rebuke everywhere go forth in relation to those who counselled the Executive to sanction it; let the Chief Magistrate [Millard Fillmore], who wrote "approved," be remembered by an insulted people; and let the
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watchword be throughout every free State, in every city, town and village, THE REPEAL OF THE INFAMOUS BILL!
Judge Grier's Letter.
Mr. Justice GRIER [1846-1869], of the Supreme Court of the United States, has written a letter to CHARLES GIBBONS, Esq., of Philadelphia, giving his views of the Fugitive Slave Bill. He differs considerably from Mr. Commissioner Gardiner, of New-York, who has CONCURRENT JURISDICTION with a Judge of the Supreme Court in the matter of adjudicating upon claims to fugitive slaves. The Judge says:—
| "The act contemplates a trial and a decision of the court or judge, involving questions both of law and fact, and unless the rules of the common law as to evidence be followed, when not changed by statute, the tribunal would be without rule, governed only by caprice, or undefined discretion, which would be the exercise of a tyrannical, not a judicial power. It is the duty of the judge who exercises it to render equal justice both to the claimant and the person claimed.
"If evidence were heard on one side only, and that, too, without any regard to any rule or principle known to the law, gross oppression and wrong would flow from it. Freemen and citizens of Pennsylvania might be kidnapped into bondage, under the forms of law, and by the action of a legal tribunal, sworn to do equal and exact justice to all men.
"This much maligned law not only gives a 'trial' before the legal tribunal before the claimant can be authorized to carry the alleged fugitive out of the State, but it takes away from the prisoner no right which he would have enjoyed before this act of Congress was passed." |
It is a fortunate circumstance that Judge Grier has given this view of the bill, whether it be agreeably to the intentions of the wise men who drew it or not, because it will probably be of authority with commissioners who might otherwise have followed the example of Comissioner Gardiner in delivering up James Hamlet, in direct opposition to the course Judge Grier thinks should be pursued.
But is Judge Grier correct in saying, the bill "takes away from the prisoner no right which he would have enjoyed before this act of Congress was passed?"
The bill provides
"that in no trial or hearing, under this act, shall the testimony of such fugitive be admitted in evidence."
This, says Judge Grier,
"is no more than the enactment of an established principle of the common law, that no man shall be witness in his own cause."
Is it to be supposed that Congress, composed in part of several able lawyers, would have inserted that clause if they had considered it merely "an established principle of the common law?" Cui bono? Surely they would not; and the inference is, they intended something by that clause that should prevent the person claimed from having a fair trial, and proceedings in due course of law. The bill requires the commissioner "to hear and determine the case of such claimant in a summary manner." Nothing is said about a"trial and a decision of the court, involving questions
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both of law and fact."
This is Judge Grier's exposition, but it is not in the bill. Now, in preliminary examinations, where a trial is not contemplated, both in common law and equity proceedings, is it not the custom for the defendant to answer by deposition or affidavit? And was it not the intention of the savans who drafted the Fugitive Slave Bill, when they introduced the clause quoted, which Judge Grier thinks superfluous, to prohibit the person seized from the right guaranteed to him in common law and equity proceedings? Most clearly it was.
Restoration of James Hamlet.
The sum of eight hundred dollars having been subscribed in this city and neighborhood, a benevolent individual kindly volunteered to go to Baltimore, redeem James Hamlet, and accompany him back to New-York. He went in fetters, but returned a free man.
A great demonstration was made in the Park, on Saturday, the 5th October, on the arrival of Mr. Hamlet. Four or five thousand citizens, white and colored, assembled at noon, to welcome him back to his family and chosen residence. Mr. John P. Thompson was called to the chair. Addresses were made by Messrs. John J. Raymond, Robert Hamilton, Charles B. Ray, and Wm. P. Powell. Much joy and enthusiasm was manifested. The speakers were heard with the deepest attention, and were frequently cheered while depicting the unjust and cruel privations to which the people of color are subjected in this boasted land of liberty, and in being obliged to seek shelter from persecution aud slavery under a monarchical government, which once oppressed this nation, and now affords an asylum to its citizens fleeing from the oppression of the government of the model Republic! Hamlet stood at the right of the chairman, and tears ran down his cheeks while the speakers described the horrors of slavery.
The following resolutions were passed, when the ransomed MAN was escorted to his home, amidst great cheering, shouting, and rejoicing:—
| Whereas, pursuant to the passage of the unconstitutional law enacted by Congress at its last session, James Hamlet, a citizen of Williamsburgh, was arrested and sent into slavery in Maryland, without due proofs of law; and
Whereas, through the generous contributions of kind friends of this city, the freedom of James Hamlet was purchased for eight hundred dollars, and he is now restored to the bosom of his family; therefore
Resolved, That we hail with joy this hour, not only because it resfores to us our brother, whom we had given up as lost to the partner of his bosom—lost to his children and home—lost to friends and society—lost to all church privileges, and everything which illumines our pathway to the tomb—but because we believe it to be the beginning of the time of our complete enfranchisement.
Resolved, That we render a thousand thanks to those noble men who have so generously contributed to the emancipation ot James Hamlet, and we invoke upon them the blessings of tbe God of the oppressed.
| John P. Thompson, | President
| Albro Lyons } |
| | J. M. Smith } | Vice Presidents
| L. Napoleon } |
| | Wm. C. Inners } | | | |
Wm. P. Powell, Sec. |
[The End]
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For Further Reading
L. Spooner's Analysis of the Law
Slavers' 1837-1839
Testimony of Slavery Conditions
Anti-slavery Lawsuit,
Somerset v Stewart (1772)
Overview of the
Unconstitutionality of Slavery
G. W. F. Mellen's 1841
Unconstitutionality of Slavery
A. Stewart's 1845
Unconstitutionality of Slavery
L. Spooner's 1845
Unconstitutionality of Slavery
J. Tiffany's 1849
Unconstitutionality of Slavery
Rev. Wm. Goodells' 1852
Slavery and Anti-Slavery
"Extradition of Fugitives from Service," 6 Op. Att'y Gen. 466 (1854). The question was whether the federal government could reimburse police and militiamen who were formed into a posse comitatus to enforce the Fugitive Slave Act. They were neither "ordinary bystanders," nor federal officers.
H. Stowe's 1854
History of Slavery aka Key
A. Lincoln's 1854
Peoria Speech
E. Rogers' 1855
Unconstitutionality of Slavery
The Fugitive Slave Law and Its Victims (1856)
F. Douglass' 1860
Unconstitutionality of Slavery
Republican Platform (1860)
C. Sumner's 1860
Barbarism of Slavery
H. Wilson's 1877
History of Slavepower
Stanley W. Campbell's The Slave Catchers (Chapel Hill: Univ of N Carolina Press, 1968, 1970)
Paul Finkelman's Slavery in the Courtroom: An Annotated Bibliography of American Cases (Washington, D.C.: Library of Congress, 1985)
Nat Brandt's The Town That Started The Civil War (Syracuse University Press, 1990) (examples of FS arrests) (Background on Oberlin, Ohio)
Steven Weisenburger's Modern Medea: A Family Story of Slavery and Child-Murder from the Old South (New York: Hill and Wang, 1998) (Review) (more examples)
Rokeby Museum, "Roland T. Robinson, Rokeby, and the Underground Railroad in Vermont" (2000)
Prof. Bertram Wyatt-Brown, Lewis Tappan and the Evangelical War Against Slavery (Cleveland: Case Western Reserve Univ Press, 1969).
Homepage
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Welcome to the anti-slavery book, The Fugitive Slave Bill: Its History and Unconstitutionality, With An Acount of The Seizure and Enslavement of James Hamlet, and His Subsequent Retoration to Liberty (1850), by Lewis Tappan.
