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.
Lewis Tappan (1788-1863) was an abolitionist, involved in activism to free slaves. Years before, he had aided in freeing the slaves on the slave-ship Amistad. That success had occurred in 1841.
It was now 1850. The South, also known as the 'Slave Power,' ruled Congress and thus the nation.
  • The 'Slave Power' was enraged at Northern 'states' rights' action providing for due process of law and habeas corpus for slaves. Such Northern states' rights actions aided slaves fleeing the brutal, concentration-camp type conditions in the South.
  • Slavers, would-be claimants, were required to prove in court that the person(s) claimant really were slaves. Slavers demanded "tort reform," lawsuit control, to obstruct the "little guy" having rights against them.
    In addition, slavers were expansionist geographically, were advocating enslaving whites, and including incidents involving white women.
    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.
    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!
    Lewis Tappan wrote this book to explain the unconstitutionality of the federal forced-return pre-emption law, and to cite a recent case of a free person (James Hamlet) being forced into slavery, but fortunately, redeemed.
    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 printing custom of the time omitted a table of contents. One has been added for modern reader convenience. The text then follows. Editor notes, on obscure references and circumstances, are included to clarify for modern readers.
  • 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
    3rd ed.
    by Lewis Tappan
    (New York: William Harned, 1850)

    Table of Contents
    Preface2
    Civil Liberty Outraged!3
    Text of the Law6
    Synopsis of the Bill10
    The Way It Was Done12
    Unconstitutionality of the Bill17
        1. No Constitutional Delegation to Legislate17
        2. Violates Constitution's Judiciary Clauses18
        3. Violates Constitutional Right to Jury Trial21
        4. Violates "Ex-Parte" Evidence Principles22
        5. No Appeal Allowed24
        6. Denies Defendant Rights24
        7. Violates Constitution's Records Clause24
        8. Suspends Habeas Corpus24
        9. Violates Constitution's D.C. Clause25
      10. Subverts the Common Law26
    Infamous Provisions of the Bill28
    Pledge29
    The Bribe Offered in the Bill30
    Fines and Imprisonment30
    Persons Not Fugitive Slaves Liable to
    Be Carried Off Under the Bill
    31
    No Exceptions on Account of Color32
    The Law Applies As Well to Apprentices
    And Minors As to Slaves
    32
    Compromises of the Constitution33
    Judge Grier's Letter35
    Restoration of James Hamlet36

    PREFACE TO THE THIRD EDITION.

    Office of The American and Foreign Anti-Slavery Society,}

    61 John street, New-York, November 1st, 1850.         }

    This Review of the infamous Bill, passed at the late session of Congress, has already been published at this office, and thirteen thousand copies disposed of The demand is so great that another edition, much improved, is now presented to the public. A wide circulation should be given to the pamphlet. To enable the friends of freedom to accomplish this object, it will be sold by the thousand or hundred at the bare cost. They are earnestly entreated to have a copy put into the hands of every citizen of the Free States, and to have copious extracts made for the public press.

    The Executive Committee of the Society believe that the heart of every anti-slavery individual will deeply sympathize with the panting fugitive. They trust that the dwelling of every citizen will be an asylum, or place of protection; and that in view of his extraordinary circumstances, and the approaching cold weather, clothing, and other necessary articles, will be furnished with a liberal hand. They would not recommend that fugitives go to Canada, at least on the approach of winter; but if any go, that they be men without families. It is well for every fugitive to avoid large cities and public houses.

    The free people of color are advised to remain at their posts, unmoved and "unawed," and each one to consider his dwelling his castle. It has been suggested at Boston, by eminent counsel, that the process under this Bill is a civil process, and that the outer door of a house cannot be broken in for the purpose of serving it. In case of assault or molestation, they may be assured that they will be effectually aided by their white friends. The opposition to the wicked Bill is general and strong; and if those liable to be its victims are circumspect and fearless, the opposition will increase, and the sympathy will be deeper and more general, until the "law" is indignantly and for ever swept from the statute book.

    Those who aid the fugitive, and defend the free people of color from being kidnapped, act on conscientious, and many of them from Christian principles. The adminstration of the iniquitous and unconstitutional law is therefore a matter of persecution. In every way in which it can be viewed, it is a disgrace to the nation, an act of extreme cruelty, and can be viewed as an experiment on the part of the Slave Power to see how much the Free States will bear, with reference to future experiments upon their rights and feelings.

    LEWIS TAPPAN, Cor. Sec.

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    Civil Liberty Outraged.

    FIRST FRUITS OF THE COMPROMISE!

    THE FIRST UNITED STATES OFFICIAL SLAVE-CATCHER IN NEW-YORK!

    THE FIRST OUTRAGE UPON CIVIL LIBERTY ON FREE SOIL, IN A FREE STATE!

    LET the following plain statement of facts be read by every American citizen, and the public judgment be passed upon the authors of the law under which they took place, and their aiders, abettors, and approvers.

    On the 26th day of September last, one THOMAS J. CLARE came to the city of New-York from Baltimore, with a power of attorney, purporting to be executed by one Mary Brown—not by her signature, but by her mark [X]—authorizing him to take and carry to Baltimore a man represented to be her slave.

    Bringing with him a copy of the "Fugitive Slave Law" just passed by Congress, as one of the heralded measures of peace in which that body has been engaged for the last ten months, certified to be authentic by Daniel Webster, Secretary of State, Clare appeared before Alexander Gardiner,* Clerk of the Circuit Court of the United States for the Southern District of New-York, and Commissioner under the "Fugitive Slave Law," and in virtue of this law constituted a slave-catcher, and made an affidavit that James Hamlet, a mulatto, about 30 years of age, who has resided in the neighborhood of this city for the last two or three years
    ____________
    * This Mr. Gardiner is, we are told, brother-in-law of ex-President John Tyler.

    -3-

    and who has a wife and children there, was the slave of Mrs. Brown, and that he escaped from her in Baltimore about the year 1848, and asked for a warrant to arrest him.

    Commissioner Gardiner, entering promptly upon the execution of his new office under the law,* forthwith prepared the necessary papers, issued the demanded warrant, and placed it in the hands of the United States Marshal, HENRY F. TALLMADGE, who, through one of his deputies, arrested Hamlet, while pursuing his ordinary business as porter in the store of Tilton & Malooey, 58 Water street, New-York city—having formerly lived with Mr. Silas Wood, in this city—and brought him, according to the direction of the warrant, before Mr. Gardiner.

    He was then taken into a retired room in the second story of the old City Hall, and the Commissioner, without any notice to any acquaintance of the prisoner, without assigning him any counsel, or giving him a moment's opportunity to send for assistance, proceeded with hot haste, ex-parte, to take the testimony of Clare, the son-in-law of the alleged claimant, and young Gustavus Brown, her son, in proof that the prisoner was her slave.

    By accident, a gentleman who has some sympathy for the distressed, heard what was going on, and sent for a gentleman of the New-York bar to appear as counsel for the prisoner, who arrived only in time to elicit, by a cross examination of the witnesses, the admission that at the time of the alleged escape of Hamlet, he was not in the employ of Mrs. Brown, but had for some time been hired out as servant in a Baltimore Shot Company, for whom Clare was clerk.

    Hamlet insisted that he was a free man, that he had entitled himself to his liberty, and denied that he was a slave. But the law prohibited his testimony from being taken, and Commissioner Gardiner, upon the testimony of the two family witnesses—the son-in-law and son of the alleged owner—who by her mark upon the power of attorney, it appears, cannot write her name, and whose name was evidently used in the matter for the benefit of Clare and young Brown—decided that the prisoner was the slave of the claimant, and doomed him to perpetual bondage, by delivering him up to Clare as his property!
    ____________
    * How unlike Col. KANE, a Commissioner at Philadelphia, who, on the publication of the infamous Bill, promptly resigned his office; and how different from the act of Commissioner Stetson, of Cleveland, Ohio, who, as soon as he heard of the passage of the bill, wrote his resignation, and inclosed it in his commission, to be sent to the appointing power, as soon as he should be called upon to aid in carrying out the provisions of the bill.

    -4-

    The demand was then made that the Marshal of the United States, at the expense of the United States, take the prisoner to Baltimore. The Fugitive Slave Law sanctions the demand, and a warrant for that purpose was immediately issued; and this man, torn from his wife and children, and doomed to perpetual bondage, not by the verdict of a jury, but by the fiat of a mere clerk, whom this law has constituted slave-catcher in the city of New-York for Southern masters, and upon the testimony of the parties in interest, was then taken into custody by deputy Benjamin H. Tallmadge, (who is son of Henry F. Tallmadge, U. S. Marshal,) hand-cuffed, and with his limbs thus cramped in irons, forced into a carriage prepared and standing at the court-house door.

    With two men on the driver's seat, and three inside the carriage, he was hurried to the steamboat and taken to Baltimore, and lodged in the slave prison of the successor of Hope H. Slatter, a well-known hell upon earth, there to remain till a favorable bargain could be made for his sale and shipment to a Southern market. The expenses, amounting to between $70 and $80, have been paid by the United States.

    His wife and two children, who had no knowledge of his doom till he was gone, were deprived of the mournful consolation of bidding farewell to their husband and father, who was torn from them for no crime, under the sanction of, and in conformity to, a law made by the Representatives of the people of these United States.

    Young Tallmadge lost no time, after seeing that Hamlet was safely lodged in the slave prison at Baltimore, in communicating the news to his father's office. By a telegraphic dispatch from Baltimore he sent intelligence that the victim whom he had volunteered to take in chains to the dungeon in that city, was securely incarcerated! This young man, we regret to eay, is the GRANDSON OF COLONEL BENJAMIN TALLMADGE, OF THE REVOLUTIONARY ARMY, AND ONCE AN AIDE OF GENERAL WASHINGTON!

    James Hamlet is a highly esteemed young man. In the language of the subservient Journal of Commerce, he is "a steady, correct, and upright man," "a member of the Methodist Church," and "can be redeemed for $800."* The Journal says the decree was according
    ____________
    * This amount was subsequently raised, and Hamlet has been returned to his family. "Thus," says the Journal of Commerce, (would it were a Journal of Humanity,) "the majesty of the law has been vindicated." The same paper taunts those who profess to be friends of the slave, but have scruples about expending all their resources for the purchase of slaves, in order to deliver them

    -5-

    to law, and the Constitution. The LATTER ASSERTION IS FALSE, as the act tramples upon the Constitution, as well as upon the law of God, as will be proved in the sequel.

    The editor sneers at a "higher law," and exults in this prostration of civil liberty, while he, with an affectation of benevolence, solicits money to purchase Hamlet, that he may be restored to his family. It is said that a silver pitcher is in preparation to te presented to the servile editor by slaveholders, in testimony of their appreciation of his services on behalf of the institution the past year. No one more richly deserves such a compliment at their hands, unless it be the truckling merchants and politicians who approve the bill for Southern custom and Southern votes.

    This "law," called the FUGITIVE SLAVE LAW, is said to have been drafted by Mr. [James M.] Mason, Senator from Virginia.

    It is the act of which Daniel Webster [1782-1852] said in the Senate:

    "I propose to support that bill with all proper authority and provisions in it, to the fullest extent—to the fullest extent;"

    and for which he has received the cordial approbation of Moses Stuart [1780-1852] and a number of manufacturers, recreant preachers, and venal politicians.

    This law is an audacious violation of the first principles of CIVIL LIBERTY, the COMMON LAW, the CONSTITUTION OF THE UNITED STATES, and the LAW OF GOD.

    "For my own part," says Judge Jay, " I regard the bill . . . as a most gross usurpation of power in Congress; a plain, palpable violation of the Constitution, an outrage on the religious and benevolent sensibilities of the community, and a disgrace to our national character."

    Let the people judge. Here is the bill:—

    AN ACT

    TO AMEND, AND SUPPLEMENTARY TO THE ACT, ENTITLED "AN ACT RESPECTING FUGITIVES FROM JUSTICE, AND PERSONS ESCAPING FROM THE SERVICE OF THEIR MASTERS," APPROVED FEBRUARY 12, 1793.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the persons who have been, or may hereafter be, appointed commissioners, in virtue of any act of Congress, by the circuit courts of the United States, and who, in consequence of such appointment, are authorized to exercise the powers that any justice of the peace or other magistrate of any of the United States may exercise in respect to offenders for any crime or offence against the United States, by arresting, imprisoning, or

    ____________
    from the hands of their oppressors. To purchase all the slaves is impossible, were there not objections to it on the score of principle; but a far less sum may, under the providence of God, be efficacious in opening the eyes of the people South as well as North, and thus bringing about peaceful emancipation, "without money and without price" [Isaiah 55:1].

    -6-

    bailing the same under and by virtue of the thirty-third section of the act of the twenty-fourth of September, seventeen hundred and eighty-nine, entitled, "An act to establish the judicial courts of the United States," shall be, and are hereby authorized and required to exercise and discharge all the powers and duties conferred by this act.

    Sec. 2. And be it further enacted, That the

  • superior court of each organized territory of the United States shall have the same power to appoint commissioners to take acknowledgments of bail and affidavit, and to take depositions of witnesses in civil causes, which is now possessed by the circuit courts of the United States; and

  • all commissioners who shall hereafter be appointed for such purposes by the superior court of any organized territory of the United States shall possess all the powers and exercise all the duties conferred by law upon the commissioners appointed by the circuit courts of the United States for similar purposes, and shall moreover exercise and discharge all the powers and duties conferred by this act.
  • Sec. 3. And be it further enacted, That the circuit courts of the United States and the superior courts of each organized territory of the United States, shall from time to time enlarge the number of commissioners, with a view to afford reasonable facilities to reclaim fugitives from labor, and to the prompt discharge of the duties imposed by this act.

    Sec. 4. Be it further enacted, That the commissioners above named shall have concurrent jurisdiction with the judges of the circuit and district courts of the United States, in their respective circuits and districts within the several States, and the judges of the superior courts of the Territories, severally and collectively, in term time and vacation; and shall grant certificates to such claimants, upon satisfactory proof being made, with authority to take and remove such fugitives from service or labor, under the restrictions herein contained, to the State or Territory from which such persons may have eacaped or fled.

    Sec. 5. And be it further enacted, That it shall be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant or other process, when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars to the use of such claimant, on the motion of such claimant, by the circuit or district court for the district of such marshal;

  • and after arrest of such fugitive by such marshal or his deputy, or whilst at any time in his custody, under the provisions of this act, should such fugitive escape, whether with or without the assent of such marshal or his deputy, such marshal shall be liable, on his official bond, to be prosecuted, for the benefit of such claimant, for the full value of the service or labor of said fugitive in the State, Territory, or district whence he escaped;

  • and the better to enable the said commissioners, when thus appointed, to execute their duties faithfully and efficiently, in conformity with the requirements of the constitution of the United States and of this act, they are hereby authorized and empowered, within their counties respectively, to appoint in writing under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties;

  • with an authority to such commissioners, or the persons to be appointed by them, to execute process as aforesaid, to summon and call to their aid the bystanders, or posse comitatus of the proper county, when necessary to insure a faithful observance of the clause of the constitution referred to, in conformity with the provisions of this act:

  • and 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, as aforesaid, for that purpose; and said warrants shall run and be executed by said officers anywhere in the State within which they are issued.

    Sec. 6. And be it further enacted, That when a person held to service or labor in any State or Territory of the United States has heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such service or labor may be due, or his, her, or their agent or attorney, duly authorized, by power of attorney, in writing, acknowledged and certified under the seal of some legal office or court of the State or Territory in

  • -7-

    which the same may be executed, may pursue and reclaim such fugitive person, either by procuring a warrant from some one of the courts, judges, or commissioners aforesaid, of the proper circuit, district or county, for the apprehension of such fugitive from service or labor, or by seizing and arresting such fugitive where the same can be done without process, and by taking and causing such person to be taken forthwith before such court, judge or commissioner, whose duty it shall be to hear and determine the case of such claimant in a summary manner;

  • and upon satisfactory proof being made, by deposition or affidavit, in writing, to be taken and certified by such court, judge, or commissioner, or by other satisfactory testimony, duly taken and certified by some court, magistrate, justice of the peace, or other legal officer authorized to administer an oath and take depositions under the laws of the State or Territory from which such person owing service or labor may have escaped, with a certificate of such magistracy or other authority, as aforesaid, with the seal of the proper court or officer thereto attached, which seal shall be sufficient to establish the competency of the proof, and with proof, also by affidavit, of the identity of the person whose service or labor is claimed to be due as aforesaid, that the person so arrested does in fact owe service or labor to the person or persons claiming him or her, in the State or Territory from which such fugitive may have escaped as aforesaid, and that said person escaped, to make out and deliver to such claimant, his or her agent or attorney, a certificate getting forth the substantial facts as to the service or labor due from such fugitive to the claimant, and of his or her escape from the State or Territory in which such service or labor was due to the State or Territory in which he or she was arrested, with authority to such claimant, or his or her agent or attorney, to use such reasonable force and restraint as may be necessary under the circumstances of the case, to take and remove such fugitive person back to the State or Territory from whence he or she may have escaped as aforesaid.

  • In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence;

  • and the certificates in this and the first section mentioned shall be conclusive of the right of the person or persons in whose favor granted to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of said person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.

    Sec. 7. And be it further enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such fugitive from service or labor, either with or without process as aforesaid;

  • or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such clamant, his or her agent or attorney or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given ansd declared;

  • or shall aid, abet, or assist such person, so owing service or labor aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons, legally authorized as aforesaid;

  • or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid,

  • shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the district court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organised Territories of the United States;

  • and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt in any of the district or territorial courts aforesaid, within whose jurisdiction the said offence may have been committed.

    Sec. 8. And be it further enacted, That the marshals, their deputies, and the clerks of the said district and territorial courts, shall be paid for their services the like fees as may be allowed to them for similar services in other cases;

  • and where such services are rendered exclusively in the arrest, custody, and delivery of the fugitive to the claimant, his or her agent or attorney, or where such supposed fugitive may be discharged out of custody for the want of sufficient proof aforesaid, then such fees are to be paid in the whole by such claimant, his
  • -8-

    agent or attorney;

  • and in all cases where the proceeding are before a commissioner, he shall be entitled to a fee of ten dollars in full for his services in each case, upon the delivery of the said certificate to the claimant, his or her agent or attorney;

  • or a fee of five dollars in cases where the proof shall not, in the opinion of such commissioner, warrant such certificate and delivery, inclusive of all services incident to such arrest and examination, to be paid in either case by the claimant, his or her agent or attorney.

  • The person or persons authorized to execute the process to be issued by such commissioners for the arrest and detention of fugitives from service or labor as aforesaid, shall also be entitled to a fee of five dollars each for each person he or they may arrest and take before any such commissioner as aforesaid at the instance and request of such claimant, with such other fees as may be deemed reasonable by such commissioner for such other additional services as may be necessarily performed by him or them:

  • such as attending to the examination, keeping the fugitive in custody, and providing him with food and lodging during his detention, and until the final determination of such commissioner; and in general for performing such other duties as may be required by such claimant, his or her attorney or agent, or commissioner in the premises;

  • such fees to be made up in conformity with the fees usually changed by the officers of the courts of justice within the proper district or county, as near as may be practicable, and paid by such claimants, their agents or attorneys, whether such supposed fugitive from service or labor be ordered to be delivered to such claimants by the final determination of such commissioners or not.

    Sec. 9. And be it further enacted, That upon affidavit made by the claimant of such fugitive, his agent or attorney, after such certificate has been issued, that he has reason to apprehend that such fugitive will be rescued by force from his or their possession before he can be taken beyond the limits of the State in which the arrest is made, it shall be the duty of the officer making the arrest to retain such fugitive in his custody, and to remove him to the State whence he fled, and there to deliver him to said claimant, his agent or attorney.

  • And to this end the officer aforesaid is hereby authorized and required to employ so many persons as he may deem necessary, to overcome such [rescuing] force, and to retain them in his service so long as circumstances may require;

  • the said officer and his assistants, while so employed, to receive the same compensation, and to be allowed the same expenses as are now allowed by law for the transportation of criminals, to be certified by the judge of the district within which the arrest is made, and paid out of the treasury of the United States.

    Sec. 10. And be it further enacted, That when any person held to service or labor in any State or Territory, or in the District of Columbia, shall escape therefrom, the party to whom such service or labor shall be due, his, her, or their agent or attorney, may apply to any court of record therein, or judge thereof in vacation, and make satisfactory proof to such court, or judge in vacation, of the escape aforesaid, and that the person escaping owed service or labor to such party.

  • Whereupon the court shall cause a record to be made of the matters so proved, and also a general description of the person so escaping, with such convenient certainty as may be:

  • and a transcript of such record authenticated by the attestation of the clerk, and of the seal of the said court, being produced in any other State, Territory, or District in which the person so escaping may be found, and being exhibited to any judge, commissioner, or other officer authorized by the law of the United States to cause persons escaping from service or labor to be delivered up, shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in such record mentioned.

  • And upon the production by the said party of other and further evidence, if necessary, either oral or by affidavit, in addition to what is contained in the said record of the identity of the person escaping, he or she shall be delivered up to the claimant.

  • And the said court, commissioner, judge, or other person authorized by this act to grant certificates to claimants of fugitives, shall, upon the production of the record and other evidences aforesaid, grant to such claimant a certificate of his right to take any such person identified and proved to be owing service or labor as aforesaid, which certificate shall authorize such claimant to seize or arrest and transport such person to the State or Territory from which he escaped:

  • Provided, That nothing herein contained shall be construed as requiring the production of a transcript of such record as evidence as aforesaid; but in its absence, the claim
  • -9-

    shall be heard and determined upon other satisfactory proofs competent in law.
    HOWELL COBB,
    Speaker of the House of Representatives,
       
    WILLIAM R. KING,
    President of the Senate, pro tempore.

    Approved September 18th, 1850.

    MILLARD FILLMORE.*

    Synopsis of the Bill.

    1. United States Comissioners who have been, or may hereafter be, appointed by the Circuit Courts of the United States, are authorized and required to exercise the powers conferred by this Act.

    2. The Superior Court of each Territory shall have power to appoint similar commissioners, with the same authority as that possessed by the commissioners appointed by the United States Circuit Courts.

    3. The Circuit Courts of the United States and the Superior Courts of the Territories shall increase the number of commissioners from time to time, as their services may be needed.

    4. Such commissioners shall possess concurrent jurisdiction, in relation to fugitives, with the Judges of the Circuit and District Courts of the United States and the Superior Courts of the Territories, in term time and vacation.

    5. Marshals and deputies are required to execute all warrants and precepts, or other processes for the arrest and detention of fugitives, under penalty of a fine of $1,000 for the use of the claimant of such fugitive; and in case of the escape of a fugitive from the custody of a marshal, whether with or without his knowledge and connivance, said marshal is to be liable to a prosecution for the full value of the said fugitive.
    ____________
    * It is said that President [Millard] Fillmore [1850-1853] entertained such doubts of the constitutionality of the bill that he would not sign it until the Attorney-General had given a written opinion of its constitutionality. This opinion of Attorney-General CRITTENDEN has been published. "It is," says a distinguished member of Congress, "full of shallow reasoning." The President is a lawyer, and fully capable of forming his own opinion in so plain a case. But it is a common thing for a time-serving President to endeavor to shelter himself under the wing of his legal adviser, when he is unwilling to take the responsibility the Constitution devolves upon him. A predecessor [Martin Van Buren (1837-1841)] sought the opinion of Attorney-General GRUNDY in the Amistad case; and that slaveholding officer stated that it would be perfectly constitutional to deliver up the hapless Africans to the tender mercies of the Spaniards. But the Supreme Court decided otherwise. Of what value is the opinion of a slaveholding Attorney-General in a case where the liberty of black men is concerned?

    -10-

    The commissioners have also power to appoint suitable persons from time to time, to execute all warrants and processes needful for the arrest and detention of fugitives, with power to call on the posse comitatus, or by-standers, for assistance, if needed; and all good citizens are commanded to aid and assist in the execution of the law, when their services shall be required.

    6. The owner, or the attorney of any owner, of any fugitive slave, is authorized to seize such fugitive, with or without warrant or process, and take him before some one of the courts, judges, or commissioners aforesaid, whose duty it shall be to determine the case in a summary manner; and on proof, by deposition or affidavit, or other satisfactory testimony, duly certified, of the escape and identity of said fugitive, and of the right of said claimant to the service of said fugitive, the commissioner shall make out and deliver to said claimant a certificate—which shall be conclusive, and prevent all molestation of the claimant by any process issued by any court, judge, magistrate or other person whomsoever—setting forth the substantial facts in the case, with authority to use necessary force and restraint to take and remove such fugitive to the State or Territory from which he has escaped. The testimony of the fugitive is in no case to be admitted.

    Ed. Note: Slave states banned slaves from testifying against whites.—H. B. Stowe, Key (1853), p 241.

    7. Any person who shall knowingly hinder the arrest of a fugitive, or attempt to rescue him after arrest, or assist such fugitive, directly or indirectly, to escape, or harbor or conceal him so as to prevent discovery or arrest, after notice or knowledge of the fact that he was a fugitive, shall be liable to a fine of $1,000 and six months' imprisonment, by conviction before the proper District or Territorial courts, and to a suit for damages of $1,000 for each fugitive lost to his owner by said obstruction or rescue, the same to be recovered by action of debt in any of the courts aforesaid.

    Ed. Note: This clause was designed to overturn pro-rescue precedents. Such precedents dated at least as far back as United States v McCardle, 3 Am St Trials 303-305; Wheeler's Crim Cas (NY, 1822) (a person rescued two women being unlawfully detained; the rescuer was upheld in court; the woman-detainer was criminally proscuted).
    This clause was also designed to forbid people following the Bible commandment against returning fugitives, Deuteronomy 23:15-16, see infra, p 28.
    The rescue concept was followed by abolitionists; and this law intended to obstruct such rescuers and rescues.

    8. The marshals, deputies and clerks shall receive the usual compensation in such cases for their services. When the proceedings are before a commissioner, he is entitled to a fee of TEN dollars upon the delivery of the said certificate to the claimant; or to a fee of FIVE dollars if the proof is deemed insufficient: the persons authorized to execute the process for the arrest and detention of such fugitive, shall receive a fee of five dollars, with other fees which may be deemed reasonable for additional services; all which fees are to be paid by such claimants.

    9. Upon affidavit by the claimant that he apprehends a rescue,

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    after the delivery of a fugitive to his master, the officer who effected the arrest may be required to take the slave to the place feom whence he escaped, and employ as many persons as may be necessary to prevent a rescue, until he can be delivered to his master in the State from which be fled.

    The expenses of assistance and transportation, the same as those now allowed for criminals, are to be paid out of the United States treasury.

    10. On the escape of a slave, the master or his attorney may make satisfactory proof to any court of record, or Judge thereof in vacation, of his ownership of an escaped slave, whereupon the court are required to issue an authenticated copy of said testimony, with a description of the person of the fugitive with such convenient certainty as may be, which being exhibited to any judge, commissioner, or other officer authorized to act, shall be held as conclusive evidence of the escape of said slave, and of the claimant's right to said fugitive.

    Upon the production of other evidence, if necessary, either oral or by affidavit, a certificate shall be granted which shall authorize the claimant to arrest and transport such person into the State or Territory whence he may have escaped. In the absence of said copy of said testimony, the claim shall be determined upon other proofs "competent in law."

    The Way It Was Done.

    It is curious to know the modus operandi—the way the deed was perpetrated—and it should be kept in everlasting remembrance. The chief plotters—the slaveholding Speaker, COBB, of Georgia, and his confederates on the floor of the House—and the subservient, pliant, dough-faced tools of the North, including those who voted for the bill, and those who dodged the question, will have their names registered here and elsewhere for the eyes of their constituents, their country-men, the world, and posterity. May the indignant frown of a virtuous people drive them from posts of influence, and doom them to political death, as they have doomed themselves to perpetual shame and dishonor!

    The following is the Senate vote on the engrossment of the bill:—

    YEAS—Messrs. Atchison, Badger, Barnwell, Bell, Berrien, Butler, Davis, of Mississippi, Dawson, Dodge, of Iowa, Downs, Foote, Houston, Hunter, Jones, King, Mangum, Mason, Pierce, Rusk, Sebastian, Scule, Spruance, Sturgeon, Turney, Underwood, Wales, Yulee—27.

    -12-

    NAYS—Messrs. Baldwin, Bradbury, Chase, Cooper, Davis, of Massachusetts, Dayton, Dodge, of Wisconsin, Greene, Smith, Upham, Walker, and Wintbrop—12.

    Absent, or not Voting—Messrs. Benton, Borland, Bright, Clarke, Clay, Cass, Clemens, Dickinson, Douglas, Ewing, Felch, Hale, Hamlin, Miller, Morton, Norris, Phelps, Pratt, Seward, Shields, Whitcomb—21.

    Yeas from the Free States—Messrs. A. C. Dodge, and Jones, of Iowa.

    On the final passage, the Yeas and Nays were not called, the fate of the bill being decided by the preceding vote; but that would-be national statesman, Daniel S. Dickinson, made a few remarks in favor of the bill, and it passed without further division.

    Mr. [William H.] Seward [1801-1872] was absent from the city, unwell. Mr. Hale was, we believe, with his family for a few days in New-Hampshire; but most of the twenty-one absentees were present, and only indisposed to vote.

    Ed. Note. See Sen. Mason's confession during the Senate debate, and Northern concern about white women being forced into slavery.

    The bill was taken up in the House [of Representatives] September 12th, and forced through, says the editor of the National Era, without discussion, consideration, or any opportunity for amendment. The bill coming up, JAMES THOMPSON, of Pennsylvania, was recognized by the Speaker, who, it is believed, fully understood the views of that recreant representative of a free State. He addressed the House in support of the bill, and closed by moving the previous question [to vote immediately].

    [Rep.] Thaddeus Stevens, of the same State, strongly appealed to his colleague to withraw the motion, as he desired to reply to him. Thompson would consent only on condition that Mr. Stevens would renew it; but this HE NOBLY REFUSED TO DO. Other members renewed the appeal, but their entreaties were in vain. Thompson was inexorable.

    Mr. Crowell moved a call of the House. It was refused, and the demand for the previous question [immediate vote] was sustained!—yeas 87, nays 69.

    Mr. Stevens then moved to lay the bill on the table [postpone it]. The motion was lost—yeas 67, nays 113.

    The main question was then ordered to be put, and the bill was ordered to a third reading—yeas 105, nays 73. The bill was read a third time by its title, the question being, "Shall it pass?"

    Mr. Thompson moved a [roll] call of the House [to identify by name how each Representative voted], which was decided in the negative,—yeas 73, nays 100.

    The question, "SHALL THIS BILL PASS?" was then decided in the affirmative—YEAS 109, NAYS 75.

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    The following is a classification of the vote:—

    YEAS—CALLING THEMSELVES DEMOCRATS.
    MaineThomas J. D. Fuller, of Calais; Elbridge Gerry, of Waterford; Nathaniel S. Littlefield, of Bridgeton.
    New-HampshireHarry Hibbard, of Bath; Charles H. Peaslee, of Concord.
    New YorkHiram Walden, of Waldensville.
    New-JerseyIsaac Wildrick, of Blairstown.
    PennsylvaniaMilo M. Dimmick, of Stroudsburg; Job Mann, of Bedford; J. X. McLanahan, of Chambersburg; John Robbins, Jr., of Philadelphia; Thomas Ross, of Doylestown; James Thompson, of Erie.
    OhioMoses Hoagland, of Millersburg; John K. Miller, of Mount Vernon.*
    MichiganAlexander W. Buell, of Detroit.
    IndianaNathaniel Albertson, of Greenville; William J. Brown, of Amity; Cyrus L. Dunham, of Salem; Willis A. Gorman, of Bloomington; Joseph E. McDonald, of Crawfordsville.
    IllinoisWilliam H. Bissell, of Belleville; Thomas L. Harris, of Petersburg; John A. McClernand, of Shawneetown; William A. Richardson, of Quincy; Timothy R. Young; of Marshall.
    IowaShepherd Leffler, of Burlington.
    CaliforniaEdward Gilbert.

    MarylandHamilton.
    VirginiaAverett, Bayly, Beale, E. Edmundson, McMullen, Holladay, Meade, Millson, Parker, Powell, Seddon.
    North CarolinaAshe, Caldwell, Venable.
    South CarolinaBurt, Colcock, McQueen, Orr, Wallace, Holmes, Woodward.
    GeorgiaHaralson, Jackson, Wellborn.
    AlabamaBowdon, Cobb, Hubbard, Harris, Inge.
    LouisianaLa Sere.
    TennesseeEwing, Harris, Johnson, Jones, Savage, Stanton, Thomas.
    MississippiBrown, Featherston, McWillie, Thompson.
    ArkansasJohnson.
    TexasHoward, Kaufman.
    MissouriBay, Bowlin, Green, Hall, Phelps.
    KentuckyBoyd, Caldwell, Mason, Stanton.

    YEAS—WHIGS.
    MassachusettsSamuel A. Elliott, of Boston.
    OhioJohn L. Taylor, of Chillicothe.
    IndianaEdward W. McGaughey, of Rockville.

    VirginiaHaymond, Morton.
    MarylandBowie, Kerr.


    ____________
    * A friend in Ohio writes, October l5th, 1850: "In Ohio, the only two Democrats who voted for the bill have been rejected by the people. The only Whig who voted for it is sustained."

    This man, soon after returning to Boston, being advised that he could not be re-elected, declined a re-election.

    This man, living in a strong pro-slavery district, has been re-elected. Shame on Ohio!

    -14-

    YEAS—Whigs.—Continued.
    DelawareHouston.
    North CarolinaClingman, Deberry, Daniel, Outlaw, Sheppard, Stanley.
    GeorgiaOwen, Toombs.
    AlabamaAlston, Hilliard.
    TennesseeAnderson, Gentry, Watkins, Williams.
    KentuckyBreck, Johnson, Marshall, McLean, Thompson.

    NAYS—DEMOCRATS.

    MaineCollen Sawtelle, of Norridgewock; Charles Stetson, of Bangor.
    ConnecticutWalter Booth, of Meriden; Loren P. Waldo, of Tolland.
    OhioJoseph Cable, of Carrolton; David K.Carter, of Masillon; David T. Disney, of Cincinnati; Jonathan D. Morris, of Batavia; Wm. A. Whittlesey, of Marietta; Amos E.Wood, of Woodville.
    MichiganKinsley S. Bingham, of Kensington.
    IndianaGraham N. Fitch, of Logansport; Andrew J. Harlan, of Marion; John L. Robinson, of Rushville.
    IllinoisJohn Wentworth, of Chicago.
    WisconsinJames D. Doty, of Menasha.
    CaliforniaGeo. W. Wright.

    NAYS—WHIGS.

    MaineJohn Otis, of Hollowell.
    VermontWilliam Hebard, of Chelsea; William Henry, of Bellows' Falls; James Meacham.
    MassachusettsJames H. Duncan, of Haverhill; Orin Fowler, of Fall River; Horace Mann, of West Newton.
    Rhode IslandNathan F. Dixon, of Westerly; Geo. G. King, of Newport.
    ConnecticutThomas B. Butler, of Norwalk.
    New-YorkHenry P. Alexander, of Little Falls; Henry Bennett, of New-Berlin; George Briggs, of New-York; Lorenzo Burrows, of Albion; Daniel Gott, of Pompey; Herman D. Gould, of Delhi; Ransom Halloway, of Beekman; Wm. T. Jackson, of Havana; John A. King, of Jamaica; Orsamus B. Matteson, of Utica; Thomas McKissock, of Newburg; Wm. Nelson, of Peckskill; Harvey Putnam, of Attica; David Rumsey, Jr., of Bath; Wm. A. Sackett, of Seneca Falls; A. M. Schermerhorn, of Rochester; John L. Schoolcraft, of albany; John R. Thurman, of Chestertown; Walter Underhill, of New-York; Peter H. Silvester, of Coxsackie.
    New-JerseyAndrew K. Hay, of Winslow; James G. King, of Hoboken.
    PennsylvaniaSamuel Calvin, of Hollidaysburg; Joseph R. Chandler, of Philadelphia; J. C. Dickey, of New-London; J. Freedley, of Norristown; Moses Hampton, of Pittsburg; H. D. Moore, of Philadelphia; Chas. W. Pitman, of Pottsville, Robert R. Reed, of Washington; Thaddeus Stevens, of Lancaster.
    OhioMoses B. Corwin, of Urbana; Nathan Evans, of Cambridge; Samuel F. Vinton, of Gallipolis.
    MichiganWilliam Sprague, of Kalamazoo.
    IllinoisEdward D. Baker, of Galena.
    WisconsinOrsamus Cole, of Potoni.

    NAYS—FREE SOILERS.
    New-Hampshire Amos Tuck, of Exeter.
    MassachusettsCharles Allen, of Worcester.
    New-YorkPreston King, of Ogdensburg.
    PennsylvaniaJohn W. Howe, of Franklin.
    OhioLewis D. Campbell, of Hamilton; John Crowell, of Warren; J. R. Giddings, of Jefferson; Wm. F. Hunter, of Woodsfield; Jos. M. Root, of Sandusky.

    -15-

    YEAS—FREE SOILERS.—Continued.
    IndianaGeorge W. Julian, of Centreville.
    WisconsinCharles Durkee, of Southport.

    YEAS, 109; NAYS, 75.


    ABSENT, OR NOT VOTING.

    Northern Whigs.—Andrews, Ashmun, Bokee, Brooks,* Butler, Casey, Clarke, Conger, Duer, Goodenow, Grinnell, Levin, Nes, Newell, Ogle,§ Phoenix,* Reynolds, Risley, Rockwell, Rose, Schenck, Spaulding, Van Dyke, White—24.

    Free Soilers.—Wilmot, 1.

    Northern Democrats.—Cleveland, Gilmore, Olds, Peck, Potter, Strong, Sweetser, Thompson, of Iowa—8.

    Southern Whigs—3.

    Southern Democrats—12.

    Total absent, or not voting—48.

    The members who intentionally absented themselves when this bill was about to be voted on, are less to be respected than those who boldly recorded their names in the affirmative. Some of the members who did not vote are known to be opposed to the bill, and will doubtless give a good reason for their absence at such a critical time.

    The dough-faces, who dodged as the vote was about to be taken, should be ascertained, and held up to the merited contempt world.

    Mr. [Thaddeus] Stevens, of Pennsylvania, after the passage of the bill, gravely rose, and suggested to the Chair the propriety of dispatching one of the pages to inform his Whig friends, who had gone out, that they now could return in safety, as the slavery matter was disposed of!

    How mean and dastardly does the conduct of such "Whig friends" appear, compared with the noble independence of Stevens and his respected coadjutors, Whigs, Democrats, and Free Soilers, who, by their votes, stood up bravely for the Constitution and Human Rights.

    It will be seen that the Representatives from the free States numbered 141, while the number from slave States was only 91. The former, therefore, had they all voted, could have killed the bill. A tremendous responsibility rests upon them.

    There were, it seems, 50 who were absent, or who dodged the question. Why did any one flee from the House to save himself from saying aye or no? Evidently because he feared to "face the music," or, in other words, he was afraid to meet his constituents if he voted aye, and trembled lest his party would lose their Southern wing, if he voted nay.

    Ed. Note: Within a few years, a new party was created that would face the slavery issue, the Republican Party.

    There is no doubt that a large number of the dodgers from the free States
    ____________
    * A member of the House asserts that he saw Messrs. Phoenix and Brooks run out of the House.

    These gentlemen are said to have been necessarily absent.

    Mr. Nes was on his death bed.

    § Mr. Ogle was at the side of the sick-bed of a dying friend. He always voted right when present, md never dodged.

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    were convinced that a majority of their constituents were opposed to the bill, and that if they voted in accordance with the views of those they were sent to represent, the bill would have been defeated. The people of the North, therefore, justly feel that they have been betrayed by their Representatives, and in uniting with the people of color in resisting this bill, they are only carrying out their original intentions in the instructions given to their Senators and Representatives in Congress.

    Pres. Millard Fillmore

    The above Act was approved by MILLARD FILLMORE, a Northern President of the United States, Sept. 18, 1850. The day he put his name to it will be a memorable one in his life. It will be the act of his administration, by which he will be distinguished in history. He is a lawyer; he knows what constitutional law is; and he has stood up in the halls of his native State [New York] and denounced the encroachments of the Slave Power.

    But now we behold him basely truckling to the dictation of the South, instead of promptly and manfully VETOING the Act, for the reason that affixing his signature to it would be a violation of his oath of office, a violation of the Constitution, and an outrage upon Civil Liberty.

    He had not, it seems, integrity and independence enough to act out the convictions of his understanding. He has thus shown that, instead of being the dignified chief of a nation, he is but the instrument of Daniel Webster, the manager of the acting President, and the tool of a party that is succumbing to the Slave Power, in order to secure their votes at the next Presidential election [1852]. For shame!

    We have said that the infamous Fugitive Slave Bill is not worthy to be styled a "Law,"—is a palpable violation of the Constitution and subversive of the first principles of Civil Liberty. Let this be made clear to the comprehension of every reader.

    Unconstitutionality of the Bill.

    1. Congress cannot legislate on the subject.

    Senator [Salmon P.] CHASE, in his speech of March 26th [1850], said:

    "I ask Senators who propose to support that bill, where they find the power to legislate on this subject in the Constitution? I know to what clause I shall be referred. I know I shall be told that the Constitution provides that

    'No person held to service or labor in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.'—Const. U.S., Art. 4, Sec. 2.

    "But this clause contains no grant of legislative power to Congress. That

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    power is conferred exclusively by special clauses, granting legislative power in respect to particular subjects, and by the eighth section of the first article, which, after enumerating the specific powers of Congress, proceeds to declare that Congress shall have power 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.'

    "Now, Sir, what power is vested by the clause in relation to fugitives from service in the Government, or in any department or officer of the Government? None at all; and if none, then the legislative power of Congress does not extend to the subject.

    "The clause is a clause of compact [comity]. It has been so denominated by every Senator who has had occasion to speak of it. The Hon. Senator from Massachusetts (Webster) told us that he 'always thought that the Constitution addressed itself to the legislatures of the States, or to the States themselves; that he had always been of the opinion that it was an injunction upon the States themselves.' If this opinion be correct, the power of legislation and the duty of legislation must be with the States, and not with Congress.

    "We are not prepared, I hope and trust we never shall be prepared, to give the sanction of the American Senate to the bill and the amendments now upon our table—a bill which authorizes and requires the appointment of two hundred and sixty-one commissioners, and an indefinite number of other offlcers, to catch runaway slaves in the State of Ohio; which punishes humanity as a crime; which authorizes seizures without process, trial without a jury, and consignment to slavery beyond the limits of the State, without opportunity of defense, and upon ex-parte testimony. Certainly no such bill can receive my vote."

    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 arisirig 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-
    ____________
    * The arguments on this and several subsequent pages, are from an able article in the New-York Tribune of October 4th, 1850.

    -19-

    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

    -21-

    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
    ____________
    * 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.

    Ed. Note: See Lysander Spooner's analysis of the 1793 law.

    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.

    Ed. Note: See Daniel Worth's analysis of legislators of that era.

    -22-

    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,

    -23-

    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
    ____________

    * 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.

    -24-

    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
    ____________
    * Writer in Vermont Chronicle.

    -25-

    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
    ____________
    * 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.

    -26-

    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

    -27-

    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
    ____________
    * 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.

    -28-

    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.

    Ed. Note: For details on Southern kidnapping of Northern sailors,
    see Charles Sumner, Barbarism of Slavery, p 193-196.

    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.*

    Ed. Note: The 1850 law did trigger widespread Northern revulsion, helped lead to the 1854 creation of the Republican Party, thence to the 1860 election of Abraham Lincoln.

    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.
    ____________
    * 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
    ____________
    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.

    -30-

    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].
    ____________
    * 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.

    Ed. Note: Southern slavery included whites; note the common southern term, "white negro."

    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

    -32-

    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.
    ____________
    * 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]



    -36-

    Ed. Note: Lewis Tappan attended the Radical
    Abolitionist Convention
    , 26-28 June 1855,
    deeming slavery unconstitutional.

    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).
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