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A DEFENCE FOR FUGITIVE SLAVES AGAINST THE ACTS OF CONGRESS OF FEBRUARY 12, 1793, AND SEPTEMBER
18, 1850 BY LYSANDER SPOONER BOSTON; BELA MARSH, 25 CORNHILL, 1850 |
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Unconstitutionality of the Acts of Congress of 1793 and 1850 The Right of Resistance, and the Right
to have the Legality of that Resistance judged by a Jury Liability of United States Officers to
be punished, under the State Laws, for executing the acts of 1793 and 1850 Neither the Constitution, nor either of
the Acts of Congress of 1793 or 1850, requires the Surrender of Fugitive
Slaves, Authorities for the Right of the Jury to
judge of the Law Mansfield's argument against the Right
of the Jury to judge of the Law Effect of Trial by Jury, in nullifying
other Legislation than the Fugitive Slave Laws |
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DEFENCE
FOR FUGITIVE SLAVES, CHAPTER
I.
Unconstitutionality of
the Acts of Congress of 1793 and 1950.
Section 1.
ADMITTING
for the sake of the argument ‑‑ what is not true in fact ‑‑ that
the words, "person held to service or labor," are a legal
description of a slave, and that the clause of the Constitution in reference
to such persons, and the Act of Congress of 1793, and the supplementary Act
of 1850, for carrying that clause into effect, authorize the delivery of fugitive
slaves to their masters ‑‑ said acts
(considered as one,) are nevertheless unconstitutional, in at least seven
particulars, as follows: ‑‑ 1.
They authorize the delivery of the slaves without a trial by jury. 2. The
Commissioners appointed by the Act of 1850, are not constitutional tribunals
for the adjudication of such cases. 3. The
State magistrates, authorized by the Act of 1793, to deliver up fugitives
from service or labor, are not constitutional tribunals for that purpose. 4. The
Act of 1850 is unconstitutional, in that it authorizes cases to be decided
wholly on ex parte testimony. 5. The
provisions of the Act of 1850, requiring the exclusion of certain evidence,
are unconstitutional. 6. The
requirement of the Act of 1850, that the cases be adjudicated "in a
summary manner," is unconstitutional. [*6] 7. The
prohibition, in the Act of 1850, of the issue of the writ of Habeas Corpus for the relief of those
arrested under the act, is unconstitutional. These
several points I propose to establish. Section 2.
Denial of a Trial by
Jury.<FN1>
Neither the Act of 1793, nor that of 1850, allows the alleged slave a
trial by jury. So far as I am aware, the only argument, worthy of notice,
that has ever been offered against the right of an alleged fugitive slave to
a trial by jury, is that given by Mr. Webster, in his letter to certain
citizens of Newburyport, dated May 15, 1850, as follows:‑‑‑ "Nothing
is more false than that such jury trial is demanded, in eases of this kind,
by the constitution, either in its letter or in its spirit. The constitution
declares that in all criminal prosecutions, there shall be a trial by jury;
the reclaiming of a fugitive slave is not a criminal prosecution. "The
constitution also declares that in suits at common law, the trial by jury
shall be preserved; the reclaiming of a fugitive slave is not a suit at the
common law; and there is no other clause or sentence in the constitution
having the least bearing on the subject." In
saying that "the reclaiming of a fugitive slave is not a criminal
prosecution," Mr. Webster is, of course, correct. But in saying that
"the reclaiming of a fugitive slave is not a suit at the common
law," within the meaning of the constitutional amendment, that secures a
jury trial "in suits at common law," he raises a question, which it
will require something more than his simple assertion to settle. [*7] To
determine whether the reclaiming of a fugitive slave is a "suit at
common law," within the meaning of the above amendment to the
constitution, it is only necessary to define the terms "suit" and
"common law," as used in the amendment, and the term
"claim," as used in that clause of the constitution, which provides
that fugitives from service and labor "shall be delivered up on claim of the person to whom such
service or labor may be due." All
these terms have been defined by the Supreme Court of the United States.
Their definitions are as follows: In the
case of Prigg vs. Pennsylvania, the
court say ‑‑ "He
(the slave) shall be delivered up on claim of the party to whom such service
or labor may be due. * * * A claim is to be made. What is
a claim? It is, in a just juridical sense, a demand of some matter, as of
right, made by one person upon another, to do, or to forbear to do, some act
or thing as a matter of duty. A more limited, but at the same time an equally
expressive definition was given by Lord Dyer, as cited in Stowell vs. Zouch,
Plowden 359; and it is equally
applicable to the present case; that 'a claim is a challenge by a man of
the propriety or ownership of a thing which he has not in his possession, but
which is wrongfully detained from him.' The slave is to be delivered up on
the claim." ‑‑ 16 Peters 614-15. In Cohens vs. Virginia, the court say: "What
is a suit? We understand it to be
the prosecution, or pursuit, of some claim,
demand, or request. In law language, it is the prosecution of some demand in
a court of justice. 'The remedy for
every species of wrong is,' says Judge Blackstone, 'the being put in possession
of that right whereof the party injured is deprived.' The instruments whereby
this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror to be 'the
lawful demand of one's right;' or, as Bracton and Fleta express it, in the
words of Justinian, 'jus prosequendi
injudicio quod alicui debetur,' ‑‑ (the
form of prosecuting in trial, or judgment, what is due to any one.) Blackstone then proceeds to describe every
species of remedy by suit; and they are all cases where the party sueing
claims to obtain something to which he has a right. "To
commence a suit, is to demand something by the institution of process in a
court of justice; and to prosecute the [*8] suit, is, according to the common
acceptation of language, to continue that demand." ‑‑ 6
Wheaton 407-8. In the
case of Parsons vs. Bedford et. al.,
the court define the term "common law," with special reference to
its meaning in the amendment to the constitution, which secures the right of
trial by jury "in suits at common law." The court say: "The
phrase 'common law,' found in this clause, is used in contradistinction to
equity, and admiralty, and maritime jurisprudence. The constitution had
declared in the third article, 'that the judicial power shall extend to all
cases in law and equity arising
under this constitution, the laws of the United States, and treaties made or
which shall be made under their authority, &c., and to all cases of
admiralty and maritime jurisprudence. It is well known that in civil causes,
in courts of equity and admiralty, juries do not intervene, and that courts
of equity use the trial by jury only in extraordinary cases to inform the
conscience of the court. When, therefore, we find that the amendment requires
that the right of trial by jury shall be preserved in suits at common law,
the natural conclusion is, that this distinction was present to the minds of
the framers of the amendment. By common
law, they meant what the constitution denominated in the third article,
'law;' not merely suits which the common law recognized among its old and
settled proceedings, but suits in which legal rights were to be ascertained
and determined, in contradistinction to those where equitable rights alone
were recognized, and equitable remedies were administered; or where, as in
the admiralty, a mixture of public law, and of maritime law and equity was
often, found in the same suit." * * * "In a just sense, the amendment, then, may
be construed to embrace all suits which are not of equity and admiralty jurisprudence,
whatever may be the peculiar form which they may assume to settle legal
rights." ‑‑ 3 Peters, 446. Such
are the definitions given by the Supreme Court of the United States, of the
terms "claim," "suit," and "common law," as
used in the constitution and amendment. If these definitions are correct,
they cover the ease of fugitive slaves. If they are not correct, it becomes
Mr. Webster to give some reason against them besides his naked assertion,
that "the reclaiming of a fugitive slave is not a suit at the common
law." Mr. Webster is habitually well satisfied with the opinions of [*9]
the Supreme Court, when they make for slavery. Will he favor the world with
his objections to them, when they make for liberty? Perhaps
Mr. Webster will say that, in the case of a fugitive slave, the matter
"in controversy," is not "value" ‑‑ to
be measured by "dollars,"
but freedom. But it certainly does not lie in the mouth of the slaveholder,
(however it might in the mouth of the slave,) to make this objection ‑‑ because
the slaveholder claims the slave as property as "value" belonging
to himself. Section 3
The Commissioners,
authorized by the Act of 1850 are not Constitutional Tribunals for the
performance of the duties assigned them.
The office of the Commissioners, in delivering up fugitive slaves,
is a judicial office. They are to
try "suits at common law," within the meaning of the constitution,
as has just been shown. They are to give, not only judgment, but final
judgment, in questions both of property, and personal liberty ‑‑ (of
property, on the part of the complainant, and of liberty, on the part of the
alleged slave.) Indeed, the Supreme Court have decided that the office of
delivering up fugitive slaves is a judicial one. Say they, "It
is plain, then, that where a claim is made by the owner, out of possession,
for the delivery of a slave, it must be made, if at all, against some other
person; and inasmuch as the right is a right of property, capable of being
recognized and asserted by proceedings before a court of justice, between
parties adverse to each other, it constitutes, in the strictest sense, a
controversy between the parties, and a case arising under the constitution of
the United States; within the express
delegation of judicial power given by that instrument." ‑‑ Prigg vs. Pennsylvania, 16 Peters, 616. These
Commissioners, therefore, are "judges," within the meaning of that
term, as used in the constitution. And being [*10] judges, they necessarily
come within that clause of the constitution, (Art. 3, Sec. 1,) which provides
that "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." The
object of this provision of the constitution, in requiring that all
"judges" shall receive a fixed salary, or "a compensation, at slated times," instead of
receiving their pay in the shape of fees in each case ‑‑ thus
making its aggregate amount contingent upon the number of cases they may
try ‑‑ was to secure their impartiality and
integrity, as between the parties whose causes should come before them. If a
judge were to receive his compensation in the shape of fees for each case, he
would have a pecuniary inducement to give a case to the plaintiff, without
regard to its merits. And for these reasons. Plaintiffs have the privilege of
selecting their own tribunals. If a particular judge be known as uniformly or
usually giving cases to plaintiffs, he thereby induces plaintiffs to bring
their cases before him, in preference to other tribunals. He thus ,.ties ~
larger number of cases, and of course obtains a larger amount of fees, than
he would if he were to decide impartially. He thus induces also the
institution of a larger number of suits than would otherwise be instituted,
because if plaintiffs are sure, or have a reasonable probability, of gaining
their causes, without regard to their merits, they will of course bring many groundless
and unjust suits, which otherwise they would not bring. It is
obvious, therefore, that the payment of judges by the way of fees for each
case, has a direct tendency to induce corrupt decisions, and destroy
impartiality in the administration of justice. And the
constitution ‑‑ by requiring imperatively
that judges "shall
receive" a fixed salary, or "" compensation at stated
times," has in reality provided that the rights of no man, whether of
property or liberty, shall ever be adjudicated by a judge, who is liable to
be influenced by the [*11] pecuniary temptation to injustice, which is here
guarded against. The
legal objection I now make is not that the Commissioners or judges are paid double fees for deciding against
liberty, or for deciding in favor of the plaintiffs ‑‑ (a
provision more infamous probably, for the pay of the judiciary, than was ever
before placed upon a human statute book) ‑‑ but
it is that they are paid in' fees at all; that they receive no
"compensation at stated times," as required by the constitution;
that their pay is contingent upon the number of cases they can procure to be
brought before them; in other words, contingent upon the inducements, which,
by their known practice, they may offer to the claimants of slaves to bring
their cases before them. The
argument on this point, then, is, that inasmuch as the constitution imperatively requires that
"judges shall receive, at stated
times, a compensation for their services," and inasmuch as the Act
of 1850 makes no provision for paying these Commissioners any
"compensation at stated times," they are not constitutional
tribunals, and consequently, have no authority to act as judges or
commissioners in execution of the law; and their acts and decisions are of
necessity binding upon nobody. In short, a Commissioner, instead of being one
of the judges of the United States, paid by the United States, is, in law, a
mere hired kidnapper, employed and paid by the slave-hunter ‑‑ and
every body has a right to treat him and his decisions accordingly.<FN2> [*12] Section 4.
The State magistrates
authorized by the Act of 1793, to deliver up fugitives from service or labor)
are not constitutional tribunals for that purpose.
The Act of 1793 requires
the State magistrates ‑‑ "any
magistrate of a county, city, or town corporate" ‑‑ to
deliver up fugitives from service or labor. This provision is plainly
unconstitutional) for several reasons) to wit: 1. The
State Courts are not
"established' by Congress, as the constitution expressly requires that
all courts shall be, in whom "the judicial power of the United States
shall be vested." 2. The
"judges" of the State
courts do not "at stated times, receive for their services a
compensation," (from the United States,) as the constitution requires
that the judges of the United States shall do. 3. The
judges of the State courts do not
receive their offices or appointments in any of the modes prescribed by the
constitution. The president does not "nominate" nor does he
"by and with the consent of the Senate appoint" them to their
offices; nor is their "appointment vested in the president alone, in the
courts of law, or in the heads of departments." 4. The
State magistrates are not
commissioned by the President of the United States, as the constitution
requires that "all officers of the United States" shall be. 5. The
State judges are not amenable to
the United States for their conduct in their offices; they cannot be
impeached, or removed from their offices) by the Congress or the government
of the United States. For
these reasons the Act of 1793, requiring the State magistrates to deliver up fugitives, is palpably
unconstitutional. Indeed the Supreme Court of the United States have decided
as much; for they have decided that, "Congress
cannot vest any portion of the judicial power of [*13] the United States,
except in courts ordained and established by itself." ‑‑ Martin vs. Hunters, Lessee, 1 Wheaton 330. Also,
"The jurisdiction over such cases, (cases arising under the constitution,
laws, and treaties of the United States,) could not exist in the State courts
previous to the adoption of the constitution, and it could not afterwards be
directly conferred on them; for the constitution expressly requires the
judicial power to be vested in courts ordained and established by the United
States." Same, p. 335. But
although this act is thus palpably unconstitutional, the Supreme Court, in
the Prigg case, with a corruption, that ought to startle the nation, and
shake their faith in all its decisions in regard to slavery, declared that
"no doubt is entertained by this court that State magistrates may, if they choose, exercise that
authority, unless prohibited by State legislation." ‑‑ 16
Peters, 622. Thus
this court, who knew ‑‑ as the same court
had previously determined ‑‑ that Congress
could confer upon the State magistrates no "judicial power"
whatever, nevertheless attempted to encourage them to assume the office of
judges of the United States, and use it for the purpose of returning men into
bondage under the pretence that an act of Congress, admitted to be unconstitutional, would yet be a sufficient
justification for the deed. That
court knew perfectly well that a law authorizing a claimant to arrest a man,
on the allegation that he was a slave, and then take him before the first man
or woman he might happen to meet in the street, and authorizing such man or
woman to adjudicate the question, would be equally constitutional with this
act of 1793, and would confer just as much judicial authority upon such man
or woman, as this act of 1793 conferred upon the State magistrates; and that
it would be just as lawful for such man or woman to adjudicate the case of an
alleged slave, and return him into bondage, under such a law, as it is for a
State magistrate to do it under the law of 1793. It is
worthy of remark, that the same judge ‑‑ and
he a northern one, (Story,) ‑‑ who
delivered the opinion, declaring [*14] that "Congress cannot vest any
portion of the judicial power of the United States, except in courts ordained
and established by itself," delivered the other opinion declaring that
"no doubt is entertained by this court that State magistrates may, if
they choose, exercise that authority, unless prohibited by State legislation." It is
also worthy of notice, that every one of the definitions before given, (Sec.
2,) of "claim,"
"suit," and "common law," ‑‑ from
which it appears that a "claim" for a fugitive slave is a
"suit at common law," within the meaning of the constitution, and
must therefore be tried by a jury ‑‑ were
taken from opinions delivered in the Supreme Court by Story. He also, in the
Prigg case, said that a claim for a fugitive slave "constitutes, in the
strictest sense, a controversy
between the parties, and a case
'arising under the constitution of the United States,' within the express
delegation of judicial power given
by that instrument." And yet this same Story, in his Commentaries on the
Constitution, says that this "suit at common law" this "controversy between the parties,"
this "case arising under the
constitution, within the express delegation of judicial power given by that instrument," has no more claim
to a judicial investigation on its
merits, than is had when a fugitive from justice is delivered up for trial.
He says, "It
is obvious that these provisions for the arrest and removal of fugitives of
both classes contemplate summary
ministerial (not judicial ‑‑ but ministerial ‑‑ that
is executive) proceedings, and not the ordinary course of judicial
investigations, to ascertain whether the complaint be well founded, or the
claim of ownership be established beyond all legal controversy. In cases of
suspected crimes the guilt or innocence of the party is to be made out at his
trial; and not upon the preliminary inquiry, whether he shall be delivered
up. All that would seem in such cases to be necessary is, that there should
be prima facie evidence before the
executive authority to satisfy' its judgment, that there is probable cause to believe the party
guilty, such as upon an ordinary warrant would justify his commitment for
trial. And in cases of fugitive slaves there would seem to be the same
necessity for requiring only prima
facie proofs of ownership, without putting the party, (the claimant,) to
a formal assertion of his rights by a suit at law." 3 Story's Commentaries, 677-8. [*15] The
Act of 1850 is unconstitutional for the same reason as is the Act of 1793;
for the Act of 1850 (Sec. 10,) authorizes any
State Court of record, or judge thereof in vacation, to take testimony as
to the two facts of a man's being a slave, and of his escape; and it provides
that any testimony which shall be "satisfactory" to such State "court, or judge thereof in
vacation," on those two points,
"shall be held and taken to be full and conclusive evidence" of
those facts, by the United States "court, judge, or commissioner,"
who may have the final disposal of the case. It
thus authorizes the State court, or
judge thereof in vacation, absolutely, and without appeal, to try those two points in every case ‑‑ leaving
only the single point of identity to be tried by the United States
"court, judge, or commissioner." Now it
is as clearly unconstitutional for Congress to give, to a State court or judge, final
jurisdiction, (or even partial jurisdiction,) of two-thirds of a case, (that
is, of two, out of the only three, points involved in the case,) as it would
be to give them jurisdiction of the whole case. I
suppose the ground, if any, on which Congress would pretend to justify this
legislation, is the following provision of the constitution ‑‑ (Art.
4, See. 1.) "Full
faith and credit shall be given in each State to the public acts, records,
and judicial proceedings of every other State. And the Congress may by
general laws prescribe the manner in which such acts, records and proceedings
shall be proved, and the effect
thereof." But
"the public acts, records, and judicial proceedings" of a State, which are here spoken of,
are only "the public acts, records, and judicial proceedings,"
done, made, and had, by State officers,
under the laws of the State. A State judge is not an officer of the
State, when exercising an authority conferred upon him by the United States;
nor are his "acts, records, or judicial proceedings," the "acts,
records, or judicial proceedings" of
the State but only of the United States.<FN3> It is only [*16] when
acting as an officer of the State,
under the laws of the State, that his "acts, records, and judicial
proceedings" are the "acts, records, and judicial proceedings of the State. Congress
seem to have been inspired with the idea that, although they could not
directly confer upon a State judge that "judicial power," which the
constitution requires to be vested only in judges of the United States, yet,
if, by any unconstitutional law, they could but induce a State judge to exercise "the judicial power of the
United States," so far as to hear and determine, upon the evidence, (in
a case arising under the constitution and laws of the United States,) and make a record of his proceedings and
determination, they (Congress) could then, by virtue of this article of
the constitution, "prescribe the manner in which such records and judicial proceedings shall
be proved, and the effect thereof,"
(before a court of the United States,) as if they were really the
"records and judicial proceedings" of the State itself. If
this wonderfully adroit process were to succeed, Congress would be able to
transfer all the real
"judicial power of the United States" to the State "courts, or judges thereof in
vacation" ‑‑ leaving the United States
courts nothing to do but to receive the "records" made by these State courts and judges, and give
them such "effect" as
Congress might prescribe. But
this remarkable contrivance must fail of its purpose, unless it can be shown
that the "acts, records and judicial proceedings," which may be had
and made by a State "court of record, or judge thereof in
vacation," not by virtue of any authority granted them by the State, but
only by virtue of au unconstitutional law of Congress ‑‑ are
really the "acts, records, and judicial proceedings" of the State
itself. The
motive of this attempt, on the part of Congress, to transfer to the State
courts and judges full and final jurisdiction over the two facts, that a man
was a slave, and that he escaped, is doubtless to be found in the statement
made by [*17] Senator Mason, of Virginia, the Chairman of the Committee that
reported the bill, and the principal champion of the bill in the Senate. In a
speech upon the bill, on the 19th day of August, 1S50, (as reported in the
Washington Union and Intelligencer,) in describing "the actual evils
under which the slave States labor in reference to the reclamation of these
fugitives," he said ‑‑ "Then
again, it is proposed, (by one of the opponents of the bill,) as a part of
the proof to be adduced at the hearing after the fugitive has been
recaptured, that evidence shall be brought by the claimant to show that
slavery is established in the State from which the fugitive has absconded.
Now, this very thing, in a recent case in the city of New York, was required
by one of the judges of that State, which case attracted the attention of the
authorities of Maryland, and against which they protested, because of the
indignities heaped upon their citizens, and the losses which they sustained
in that city. In that case, the judge of the State court required proof that
slavery was established in Maryland, and went so far as to say that the only
mode of proving it was by reference to the statute book. Such proof is
required in the Senator's amendment; and if he means by this that proof shall
be brought that slavery is established by existing laws, it is impossible to
comply with the requisition, for no such proof can be produced, I apprehend,
in any of the slave States. I am not
aware that there is a single State in which the institution is established by
positive law. On a former occasion, and on a different topic, it was my
duty to endeavor to show to the Senate that no such law was necessary for its
establishment; certainly none could be found, and none was required in any of
the States of the Union." It
thus appears by the confession of the champion of the bill himself, that
every one of these fugitive slave cases would break down on the first point
to be proved, to wit, that the alleged fugitive was a slave ‑‑ if
that fact were left to be proved before a court that should require the
claimant to show any law which made the man a slave. It was therefore
indispensable that this fact should be proved only to the satisfaction of one
of those State judges, who have acquired the habit of deciding men to be
slaves, without any law being shown for it. [*18] Section 5.
Ex parte Evidence.
The Act of 1850 is unconstitutional, in that it authorizes cases to
be decided wholly on ex parte testimony. The
4th Section of the act makes it the "duty" of the "court,
judge, or commissioner," to deliver up an alleged fugitive, "upon
satisfactory proof being made by deposition or affidavit, in writing, * * or by other satisfactory
testimony, * * and with proof also by affidavit of the identity of the person," &c. It
thus allows the whole proof to be made by "affidavit" alone, which is wholly an ex parte affair. And if this testimony be
"satisfactory" to the court, judge, or commissioner, they are
authorized to decide the case upon that testimony alone, without giving the
defendant any opportunity to confront or cross-examine the witnesses of the
claimant, or to offer a particle of evidence in his defence. The
10th Section of the act is of the same character as the 4th, except that it is worse. It first
provides that a claimant ‑‑ by a wholly ex parte proceeding ‑‑ may
make "satisfactory proof" ‑‑ to
"any court of record, or judge thereof in vacation,'' in the
"State, Territory, or District," from which a fugitive is alleged
to have escaped that a person has escaped, and that he owed service or labor
to the party claiming him. It then, not merely permits, but imperatively requires, that this ex parte evidence, when a transcript
thereof is exhibited in the State where the alleged fugitive is arrested,
"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 the record
mentioned." It
thus absolutely requires, that on the production of certain ex parte evidence by the claimant, the
court, judge, or commissioner shall decide these two points ‑‑ the
fact of escape, and that the fugitive owed service or labor to the
claimant ‑‑ against the defendant, without giving him a hearing. [*19] It
then permits the judge to decide
the only remaining point, to wit, the
identity of the person arrested with the person escaped ‑‑ upon
the same testimony. But it allows
him to receive "other and further evidence, if necessary," on this single point of identity. Thus
this section imperatively prescribes that, at the pleasure of the claimant,
certain ex parte testimony
"shall be held and taken to be full and conclusive evidence," on
two, out of the three, points involved in the case. And on the only remaining
point, it requires "other and further evidence," only on the
condition that it shall be "necessary"
in the mind of the judge or commissioner. And if “other and further
evidence'' be “necessary,” that also may be “either oral, or by affidavit," which last is
necessarily ex parte. Thus
the act authorizes the whole case to be decided wholly on ex parte evidence if such evidence be
"satisfactory" to the commissioner; and, at the option of the
claimant, it makes it obligatory
upon the commissioner to receive such testimony as "full and conclusive
evidence” on two, out of the only three, points involved in the case. There
is not a syllable in the whole act that suggests, implies, or requires that
the individual, whose liberty is in issue, shall be allowed the right to
confront or cross-examine a single opposing witness, or even the right to
offer a syllable of rebutting testimony in his defence. Now, I
wish it to be understood that I am not about to argue the enormity of such an
act, but only its unconstitutionality. The
question involved is, whether Congress have any constitutional power to
authorize courts to decide cases, "suits at common law," or any
other cases, on ex parte testimony
alone? The
constitution declares that "the judicial power shall extend to all cases
in law and equity, arising under this constitution, the laws of the United
States, * * to controversies to which the United States shall
be a party; to controversies between two or more States, between a State and
citizens of another State, between citizens of different States,"
&e. &c. [*20] What
then is a "case?"
"Case" is a technical term in the law. It is a "suit," a
"controversy" before a judicial tribunal, or umpire. The
constitution uses the three terms, “case," "suit," and
“controversy," as synonymous with each other. They all imply at least
two parties, who are antagonists to each other. There can be no
“controversy," where there is but one party. Nor can there be a
“controversy" where but one of the parties is allowed to be heard. Say
the Supreme court, "A case in law or equity consists of the right of one
party, as well as of the other." Cones
vs. Virginia, 6 Wheaton 379. What
is this "right" which is at the same time "the right of one
party, as well as of the other?" It cannot be a right to the thing in
controversy; because that can be the right of but one of them. The
"right," therefore, that belongs to "one party as well as the
other," can be nothing less than the equal right of each party to
produce all the evidence naturally applicable to sustain his own claim, and
defeat that of his adversary; to have that evidence weighed impartially by
the tribunal that is to decide upon the facts proved by it; and then to have
the law applicable to those facts applied to the determination of the
controversy. It has
already been shown that the claim to a fugitive slave, is a "case,"
"suit," and "controversy," arising tinder the
constitution of the United States; and as such, to use the language of the
court, is "within the express delegation of judicial power given by that instrument." The
question now arises, what is "the judicial
power of the United States?" I
answer, it is the power to take judicial cognizance or jurisdiction of, to try, adjudicate, and determine, all
"cases," "suits," and "controversies, arising under
the constitution and laws of the United States," &c. The
judicial power, therefore, being a power to
try cases, necessarily includes a power to determine what evidence is applicable to a case, and to admit, hear, and weigh all the
evidence that is applicable to it. A case can be tried only on the eve- [*21]
dense presented. In fact, the evidence constitutes the case to be tried. If a
part only of the evidence, that is applicable to a case ‑‑ or
that constitutes the case ‑‑ or that is
necessary for the discovery of the truth of the case ‑‑ be
presented, weighed, and tried, the case really in controversy between the
parties is not tried, but only a fictitious one, which Congress or the courts
have arbitrarily substituted for the true one. If, whenever a case, arising
under the constitution or laws of the United States, is instituted by one
individual against another, Congress have constitutional power to substitute
a fictitious case for the real one, and to require that the real one abide
the result of the fictitious one, they have power to authorize cases to be
tried on ex parte
testimony ‑‑ otherwise not. In what clause
of the constitution such a power is granted to Congress, no one, so far as I
am aware, has ever deigned to tell us. No one
will deny that the question, what evidence is admissible in a case, or makes
part of a case, or is applicable to a case, is, in its nature, a judicial question. And if it be, in its nature, a judicial question,
the power to determine it is a part of "the judicial power of the United
States," and consequently is
vested solely in the courts. And Congress have clearly as much right to
usurp any other "judicial power" whatever, as to usurp the power of
deciding what evidence is, and what is not, admissible ‑‑ or
what evidence shall, and what evidence shall not, be admitted. As a general rule, the decision of these
questions, of the admissibility of evidence, is left to the courts. But
legislatures are sometimes so ignorant or corrupt as to usurp this part of
"the judicial power;" and the courts are always, I believe,
ignorant, servile, or corrupt enough to yield to the usurpation. The
simple fact that all questions of the admissibility of evidence are, in their nature, judicial questions,
proves that the power of deciding them, is a part of "the judicial power
of the United States;" and as all
"the judicial power of the United States" is vested in the courts,
it necessarily follows that Congress cannot legislate at all in regard to it,
either by prescribing what evidence shall, or what shall not, be admitted, in
[*22] any case whatever. For them to do so is a plain usurpation of
"judicial power." Among
all the enumerated powers, granted to Congress, there is no one that
includes, or bears any, the remotest, resemblance to a power to prescribe
what evidence shall, and what shall not, be admitted by the courts, in the
trial of a case. There is none that bears any resemblance to a power to
authorize or require the courts to decide cases on ex parte testimony alone. If a judge were thus to decide a case,
of his own will, he would be impeached. The assumption, on the part of
Congress, of a power to authorize the courts to do such an act, is a
thoroughly barefaced usurpation. If Congress can authorize courts to decide
cases, on hearing the testimony on one side only, they have clearly the same
right to authorize them to decide them without hearing any evidence at all. Section 6.
The provisions of the
act of 1850 requiring the exclusion of certain evidence, are
unconstitutional.
Those
provisions of the act, which specially require the exclusion of certain
testimony, naturally applicable to the case, are unconstitutional for the
same reason as are those which purport merely to authorize or allow the
decision of the case on ex parte
testimony. That reason, as has been already stated in the preceding section,
is that such legislation is an usurpation, by Congress, of "the judicial
power" ‑‑ or rather an attempt to
control the judicial power ‑‑ for which no
authority is given in the constitution. "The judicial power" being
vested in the court, Congress can of course neither exercise nor control it. If
congress can, by statute, require the exclusion of any testimony whatever,
that is naturally applicable to a case, they can require the exclusion of all
testimony whatever, and require cases to be decided by the courts, without
hearing any evidence at all. [*23] There
are two provisions in the act of 1850, which specially require the exclusion
of testimony, on the part of the defendant. The first is the one, (sec. 10),
already commented upon, which requires that certain ex parte testimony taken by the claimant, "shall be held and
taken to be full and conclusive evidence," on the two points to which it
relates, to wit, the fact of slavery, and the fact of escape. This
requirement that this ex parte
testimony shall "be held and taken to be full and conclusive
evidence" of those two facts, is an express exclusion of all rebutting
testimony relative to those facts. The
other provision of this kind, is in the 4th section, in these words. "In
no trial or hearing, under this act, shall the testimony of such alleged
fugitive be admitted." The
act itself admits that the testimony of one of the parties, the claimant, is
legitimate evidence ‑‑ for it permits it to
be received, and, if it be "satisfactory" to the court, judge, or
commissioner, allows the case to be determined on his testimony alone.
Indeed, without the claimant's own testimony, his case could rarely, if ever,
be made out ‑‑ because he alone could
generally know whether he owned the slave, and he alone (except the slave)
could know whether the slave escaped, or whether he had permission to go into
another state. It is therefore indispensable to the success of these cases
generally, that the claimant's own testimony should be received; and if his
testimony be admissible, the testimony of the opposing party must be equally
admissible; and for Congress to prohibit its admission is, for the reasons
already given, an usurpation of" the judicial power."<FN4> [*24] Section 7
The requirement of the
act of 1850, that the cases be adjudicated "in a summary manner," is
unconstitutional.
Section
6th of the act makes it the "duty" of the court, judge or
commissioner "to hear and determine the case of such claimant in a
summary manner." This
determining the case in a summary manner is only another mode of excluding
testimony on the part of the defendant. The plaintiff of course prepares his
testimony beforehand, and has it ready at the moment the alleged fugitive is
arrested. If the case then be tried, without giving the defendant time to
procure any testimony, the decision must necessarily be made upon the
testimony of the claimant alone. Such is the design of the act, for the
defendant being arrested, the [*25] act requires that he shall 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," ‑‑ that
is, without granting the delay necessary to enable the defendant to obtain
testimony for his defence. The
whole object and effect of this provision is to make it necessary for the
court to determine the case on the evidence furnished by the plaintiff alone.
And the exclusion of all testimony for the defendant, by this
"summary" process, is equally unconstitutional with its exclusion
in the manner commented on in the last two preceding sections ‑‑ for
the right of a party to be heard in a court of justice, necessarily implies a
right to reasonable time in which to procure his testimony. Section 8.
The suspension of the
writ of Habeas Corpus, by the act of 1850, is unconstitutional.
Section
6th of the act provides that "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 [*26] escaped, and shall
prevent all molestation of such person or persons, by any process issued by
any court, judge, magistrate, or other person, whomsoever." This
is a prohibition upon the issue of the writ of habeas corpus, and is a violation of that clause of the
constitution, which says that "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." In
cases where no appeal lies to a superior court, (and in this case no appeal
is granted, and the constitution, art. 3, sec. 2, clause 2, does not require
an appeal,) the habeas corpus is
the only mode of relief for a person deprived of his liberty by any illegal
proceeding; and a prohibition upon the use of the habeas corpus for the purpose of inquiring into the proceedings,
and determining whether they have been legal, and releasing the prisoner if
they have been illegal, is as palpable a violation of the constitution on
this point as it is possible to conceive of. Upon a
writ of habeas corpus, it would be
the duty of the court to inquire fully into the several questions, whether
the person, who had assumed to act as judge, and restrain the prisoner of his
liberty, was really a judge, appointed and qualified as the constitution
requires? Whether the law, under color of which the man was restrained, was a
constitutional one? Whether the prisoner had been allowed a trial by jury?
Whether he had been allowed to offer all the testimony, which he had a
constitutional right to offer, in his defence. Whether he had had reasonable
time granted him, in which to procure testimony? And generally into all
questions involving the legality of his restraint; and to set him at liberty,
if the restraint should be found to be illegal. [*27] CHAPTER
II.
The Right of
Resistance, and the Right to have the Legality of that Resistance judged of
by a Jury.
If
it have been shown that the acts of 1793 and of 1850, are unconstitutional,
it follows that they can confer no authority upon the judges and marshals
appointed to execute them; and those officers are consequently, in law, mere
ruffians and kidnappers, who may be lawfully resisted, by any body and every
body, like any other ruffians and kidnappers, who assail a person without any
legal right. The rescue
of a person, who is assaulted, or restrained of his liberty, without
authority of law, is not only morally, but legally, a meritorious act; for
every body is under obligation to go to the assistance of one who is assailed
by assassins robbers, ravishers, kidnappers, or ruffians of any kind. An
officer of the government is an officer of the law only when he is proceeding
according to law. The moment he steps beyond the law, he, like other men,
forfeits its protection, and may be resisted like any other trespasser. An
unconstitutional statute is no law,
in the view of the constitution. It is void, and confers no authority on any
one; and whoever attempts to execute it, does so at his peril. His holding a
commission is no legal protection for him. If this doctrine were not true,
and if, (as the supreme court say in the Prigg case,) a man may, if he choose, execute an
authority granted by an unconstitutional law, congress may authorize
whomsoever they please, to ravish women, and butcher children, at pleasure,
and the people have no right to resist them. The
constitution contemplates no such submission, on the part of the people, to
the usurpations of the government, or to the lawless violence of its
officers. On the contrary it provides that "The right of the people to
keep and bear arms shall not be infringed." This constitutional security
for c, the right to keep and bear arms," implies the right to use
them, ‑‑ [*28] as much as a constitutional
security for the right to buy and keep food, would have implied the right to
eat it. The constitution, therefore, takes it for granted that, as the people
have the right, they will also have the sense, to use arms, whenever the
necessity of the case justifies it. This is the only remedy suggested by the
constitution, and is necessarily the only remedy that can exist, when the
government becomes so corrupt as to afford no peaceable one. The people have
a legal right to resort to this remedy at all times, when the government goes
beyond, or contrary to, the constitution. And it is only a matter of
discretion with them whether to resort to it at any particular time. It is
no answer to this argument to say, that if an unconstitutional act be passed,
the mischief can be remedied by a repeal of it; and that this remedy may be
brought about by discussion and the exercise of the right of suffrage;
because, if an unconstitutional act be binding until invalidated by repeal,
the government may, in the mean time disarm the people, suppress the freedom
of speech and the press, prohibit the use of the suffrage, and thus put it
beyond the power of the people to reform the government through the exercise
of those rights. The government have as much constitutional authority for
disarming the people, suppressing the freedom of speech and the press,
prohibiting the use of the suffrage, and establishing themselves as perpetual
and absolute sovereigns, as they have for any other unconstitutional act. And
if the first unconstitutional act may not be resisted by force, the last act
that may be necessary for the consummation of despotic authority, may not be. To say
that an unconstitutional law must be obeyed until it is repealed, is saying
that an unconstitutional law is just as obligatory as a constitutional
one, ‑‑ for the latter is binding only
until it is repealed. There would therefore be no difference at all between a
constitutional and an unconstitutional law, in respect to their building
force; and that would be equivalent to abolishing the constitution, and
giving to the government unlimited power. [*29] The
right of the people, therefore, to resist an unconstitutional law, is
absolute and unqualified, from the moment the law is enacted. The
right of the government "to suppress insurrection," does not
conflict with this right of the people to resist the execution of an
unconstitutional enactment; for an "insurrection'' is a rising against
the laws, and not a rising against
usurpation. If the government and the people disagree, as to what are laws, in the view of the constitution,
and what usurpations, they must fight the matter through, or make terms with
each other as best they may. But
for this rights on the part of the people, to resist usurpation on the part
of the government, the individuals constituting the government would really
be, in the view of the constitution
itself, absolute rulers, and the people absolute slaves. The oaths
required of the rulers to adhere to the constitution, would be but empty
wind, as a protection to the people against tyrannies if the constitution, at
the same time that it required these oaths, committed the absurdity of
protecting the rulers, when they were acting contrary to the constitution.
The constitution, in thus protecting the rulers in their usurpations, would
continue to act as a shield to tyrants, after they themselves had deprived it
of all power to shield the people. It would thus invite its own overthrow,
and the conversion of the government into a despotism, by those appointed to
administer it for the liberties of the people. This
right of the people, therefore, to resist usurpation, on the part of the
government, is a strictly constitutional
right. And the exercise of the right is neither rebellion against the
constitution, nor revolution it is a maintenance of the constitution itself,
by keeping the government within the constitution. It is also a defence of
the natural rights of the people, against robbers and trespassers who attempt
to set up their own personal authority and power, in opposition to those of
the constitution and people, which they were appointed to administer. To
say, as the arguments of most persons do, that the peo- [*30] ple, in their
individual and natural capacities, have a right to institute government, but that they have no right, in the same
capacities, to preserve that government by putting down
usurpation ‑‑ and that any attempt to do so
is revolution, is blank absurdity. The
right and the physical power of the people to resist injustice, are really
the only securities that any people ever can have for their liberties.
Practically no government knows any limit to its power but the endurance of
the people. And our government is no exception to the rule. But that the
people are stronger than the government, our representatives would do any
thing but lay down their power at the end of two years. And so of the
president and senate. Nothing but the strength of the people, and a knowledge
that they will forcibly resist any very gross transgression of the authority
granted by them to their representatives, deters these representatives from
enriching themselves, and perpetuating their power, by plundering and
enslaving the people. Not because they are at heart naturally worse than
other men; but because the temptations of avarice and ambition, to which they
are exposed, are too great for the mere virtue of ordinary men. And nothing
but the fear of popular resistance is adequate to restrain them. As it is,
the great study of many of them seems to be to ascertain the utmost limit of
popular acquiescence. Once in a while they mistake that limit, and go beyond
it. But,
to return. As every body who shall resist an officer in the execution of
these fugitive slave laws, will be liable to be tried for such resistance,
and to be thus laid under the necessity of proving the unconstitutionality of
the laws to the satisfaction of the tribunal by whom he is tried; and as
judges are in the nearly unbroken habit of holding all legislation to be
constitutional; and especially as the Supreme Court of the United States have
held, (in the Prigg case, as before cited,) that the sending of men into
bondage is so important an object to be accomplished, that an officer may, if he choose, exercise an authority
conferred only by an unconstitutional law; it becomes those, who may be
disposed to resist the execution of [*31] the laws in question, to ascertain
what are their chances of escaping unharmed in running the gauntlet of such a
judiciary as the nation is blessed with. One
liability, imposed by the act, (sec. 7,) is that any person, who shall in any
way assist in the rescue "shall 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," &c. There
is one consolation, in view of this liability and that is, that in the suit
for this $1000, the claimant will be under the necessity of proving his
property in the fugitive; and this, (as is shown by Senator Mason's speech,
before cited,) could be done in no case whatever. I say
the claimant will have to prove his property in the fugitive, because it is
not clear that the act intends, (although at first blush such may be its
apparent meaning,) that the judgment given by the court, judge, or
commissioner, delivering the alleged slave to the claimant, shall be
sufficient evidence, or even evidence at all, of such claimant's property in
the slave, in a civil suit for damages for the loss of the slave. And in the
absence of such clear intention, I apprehend no court would dare put such a
construction upon the act, or allow such use to be made of that judgment. The
right of action for damages, which is given to the master, is given him, not
for the purpose of punishing those who rescue the alleged fugitive, (for that
punishment is provided for by fine and imprisonment,) but to enable the owner
to recover payment for the loss of his property. In such an action he is of
course necessitated to prove, (and Congress have no power to make any law to
the contrary,) that the man he claims as his property, is really
his ‑‑ because, in a free state certainly,
every man is prima facie the owner
of himself.<FN5> [*32] The
claimant could recover payment for his slave but once, although an hundred or
a thousand persons were engaged in the rescue; and these hundred or thousand
persons could unite in the payment, thus making the burden a light one upon
each individual. As
this action is given to the owner, to enable him to recover the value of his
slave, and not as a penalty upon those who rescue him, the law is clearly
unconstitutional in fixing that value at a specific sum. The value must be
ascertained by a jury, if it exceed twenty dollars. Congress have as much
right to say that, in case of any other injury done by one man to the
property of another, the wrong-doer "shall forfeit and pay, by way of
civil damages to the party injured by such illegal conduct, the sum of one
thousand dollars, (and no more,) to be recovered by action of debt,"
without regarding whether the injury were really $10, or $10,000, as to say
the same in this case. The power of determining the amount of injury done by
one man to the property of another, by violating a law of the United States,
is a part of "the judicial power," and is vested solely in the
courts, and Congress have no authority whatever to decide that question. Furthermore,
the law is also unconstitutional in authorizing the owner to recover the full
value of the slave. It should only authorize him to recover the damages
actually sustained by the rescue. The owner does not lose his property in his
slave by having him taken out of his hands on a particular occasion. His
property in him remains, and the law presumes that he can take his slave
again at pleasure, as he could before the rescue. Because there has been one
rescue, the law does not presume that the slave is forever lost to his owner.
And the defendants would be entitled to prove that the slave was still within
reach of the master, where his master might at any time retake him. And it
would be no answer to this fact, to say, that if the slave were retaken, he
would probably be rescued again. The law presumes nothing of that kind, and
could not presume it, even though the slave had been seized by the owner, and
rescued by the defendants, an hundred [*33] times. The law would still
presume that if the master were to take the slave again, he would be suffered
to hold peaceable possession of him. Consequently the owner, in case of a
rescue, is entitled to recover only the damages actually suffered by that
particular rescue, and not the full value of the slave, as if he had been
lost to him forever. And this suit for damages, being a "suit at common
law," within the meaning of the constitution, must be tried by a jury;
and the damages must be ascertained by a jury, instead of being fixed by
statute. If
this view of the law be correct, the pecuniary liability incurred in rescuing
a slave, would be very slight, so far as the right of the master to recover
damages was concerned.<FN6> The
only other liability incurred in rescuing an alleged fugitive, is a liability
to be indicted and tried criminally for the act: and if convicted: subjected
to "a fine not exceeding one thousand dollars: and imprisonment not
exceeding six months." There
are two chances of security against these punishments. 1.
They can be inflicted only upon "indictment and conviction." There
is a probability that a grand jury will not indict, for it is not their duty
to do so, if they think the law, that has been resisted, is unconstitutional.
A grand jury have the same right to judge of the law, as a traverse jury. 2. If
an indictment be found, the jury who try that indictment, are judges of the
law, as well as the fact. If they think the law unconstitutional, or even
have any reasonable doubt of its constitutionality, they are bound to hold
the defendants justified in resisting its execution. From
this right of the jury to judge of the law in all criminal cases, it follows
that in all forcible collisions between the government and individuals, (as
in the case of resistance to [*34] the execution of a law,) the right of
judging whether the government or the people are in the right, lies in the
first instance, not with the government, or any permanent department of it,
but with the people ‑‑ that is, "the country," whom the jury
represent; for the jury represent "the country," or the people, as distinguished from the government.<FN7> The people, therefore, in establishing government,
with trial by jury, do not surrender their liberties into the hands of the
government to be preserved or destroyed, as the government shall please. But
they retain them in their own hands, by forbidding the government to injure
any one in his life, liberty, or property, without having first, obtained the
consent of "the country" ‑‑ that
is, of the people themselves ‑‑ who are
supposed to be fairly represented by a jury, taken promiscuously from the
whole people, and therefore likely to embrace persons of all the varieties of
opinion that are generally prevalent among the people. Hence
it follows that, under the trial by jury, no man can be punished for
resisting the execution of any law, unless the law be so clearly
constitutional, as that a jury, taken promiscuously from the mass of the
people, will all agree that it is
constitutional. But for some principle of this kind, by which the opinions of
substantially the whole people could be ascertained, men, in agreeing to a
constitution, would be liable to be entrapped into giving their consent to a
government that would punish them for exercising rights, which they never
intended to surrender. But so long as it rests with a jury, instead of the
government, to say what are the powers of the government, and what the
liberties of the people ‑‑ and so long as
juries are fairly selected by lot from the whole population, the presumption
is that all classes of opinions will be represented in the jury, and every
man may therefore go forward fearlessly in the exercise of what he honestly
believes to be his rights, in the confidence that, if his conduct be called
in question, there will be among his judges, (the jury,) some [*35] persons
at least, whose judgments will correspond with his own. And
inasmuch as a single dissentient in the jury is sufficient to prevent a
conviction, it follows that if the government exercise any powers except such
as substantially the whole people intended it should exercise, it is liable
to be resisted, without having any power to punish that resistance. It may
indeed overcome that resistance and enforce the law, constitutional or
unconstitutional, unless resisted by a force that is stronger than its own.
But it cannot punish that resistance afterward, unless substantially the whole
people, through a jury, agree that the law was constitutional. But
this right of a jury, in all criminal prosecutions, to judge of the
constitutionality of the law that has been resisted, is not the whole of a
jury's rights; they have the right to judge also of its justice. Juries are never sworn to try criminal cases "according to law." They are only sworn
to "try the issue according to
the evidence." The "issue" is guilty or not guilty.
This issue is to be tried on the natural principles of justice, as those
principles exist in the breasts of the jurors, and not according to any
arbitrary standard which legislators may have attempted to set up. Guilt is an intrinsic quality of actions, and cannot be imparted to them by
all the legislatures that ever assumed to exercise the power of converting
justice into injustice, and injustice into justice. The question for a jury,
in trying "the issue," then, is not simply whether the accused has
been guilty of violating a law; but
whether he has been guilty in
violating it? And unless they all
answer this last question in the affirmative, he cannot be convicted. The
trial by jury might safely be introduced into a despotic government, if the
jury were to exercise no right of judging of the law, or the justice of the
law. If
juries were to find men guilty, simply because the latter had exercised their
natural rights in defiance of unjust laws, juries, instead of being, as they
are wont to he called, "the palladium of liberty," would be the
vilest tools of oppression [*36] ‑‑ the
instruments of their own enslavement ‑‑ for
in condemning others for resisting injustice, at the hands of the government,
they authorize their own condemnation for a similar cause. No honest man
could ever sit on a jury, if he were required to find a man
"guilty," and thus become accessory to his punishment, for doing an
act, which was just in itself, but which the government, in violation of
men's natural rights, had arbitrarily forbidden him to do. Furthermore,
a jury, before they can convict a man, must find that he acted with a criminal intent ‑‑ for
it is a maxim of law that there can be no crime without a criminal intent.
There can be no criminal intent in resisting injustice. To justify a
conviction, therefore, the law, and the
justice of the law, must both be so evident as to make its transgression
satisfactory proof of an evil design on the part of the transgressor. Such
are some of the principles of the trial by jury: and the effect of them is to
subject the whole operations of the government, both as to their
constitutionality and their justice, to the ordeal of a tribunal fairly
representing the whole people, and thus to restrain the government within
such limits as substantially the whole people, whose agent it is, agree that
it may occupy. But for this restraint, our government, like all others,
instead of being restricted to the accomplishment of such purposes as the
whole people desire, would fall, as indeed it very often has fallen, into the
hands of cliques and cabals, who make it, as far as possible, an instrument
of plunder and oppression, for the gratification of their own avarice and
ambition. There
is, therefore, substantial truth in the saying, which, we have been recently
told<FN8> "has, in England, become
traditional, and drops from the common tongue, that 'the great object of
King, Lords, and Commons, is to get twelve men into a jury box.'" And in
this country, the great object of Presidents, Senators, and Representatives
is the same. But such have been the ignorance and the frauds of legislators
and judges, and such the ignorance of the people, on this point [*37] that
juries have generally been merely contemptible tribunals, looking after facts
only, and not after rights, and ready to obey blindly the dictation of
legislatures and courts, and enforce any thing and every thing, which the
permanent branches of the government should require them to enforce. And we
now see the results of their degradation and submission, in the audacity of
the legislature in passing such laws as those of 1793 and 1850, and in the
conduct of the courts ill sanctioning, as constitutional, the former of these
laws, as they undoubtedly will sanction the latter, unless deterred by the
intelligence and firmness of the people. It is
this intrusting of the liberties of the people, to the hands of the
people ‑‑ represented by a jury taken
promiscuously from the mass of the people ‑‑ instead
of intrusting them to the government, which represents at most but a part,
and generally a small part, of the people ‑‑ that
makes the trial by jury "the palladium of liberty." If governments
were intrusted with authority to define the liberties of the people, they
would of course say that the people had no liberties that could be exercised
contrary to the will of the government. And if governments had authority to
define their own powers, and to punish all who resisted their power as thus
defined, all governments would declare themselves absolute of course. And the
simple right to punish resistance, without getting the consent of the people
in each individual case, would, of itself, make any government absolute; for
the power to punish necessarily carries all other powers with it. The power
to punish disobedience is the power that compels obedience. It is, in its
very nature, an absolute and uncontrollable power. And if a government have
this power, it is absolute of course. And oaths and parchments are things of
no importance in such a case, for they are necessarily but straws in the way of
a power that is otherwise unrestrained. It is
no argument to say that the constitution has provided a judicial department,
with power extending to "all cases arising under the constitution and
laws of the United States." The answer is, that this constitution has
made juries a part of this judicial department, and given them special
jurisdiction of [*38] crimes, and made their acquittal final; and that it is
only in cases of conviction that a question can be carried beyond them. The permanent officers of this
department ‑‑ the judges, so
called ‑‑ by the very constitution of their
office, are unfit to be trusted with any question arising between the
government and the people, as to the powers of the former, and the liberties
of the latter; for the judges receive their offices directly from those other
departments of the government, and not from the people. They are also
dependant upon those other departments for their salaries, and are amenable
to them by impeachment. They are of course nothing but instruments in their
hands, and have always proved themselves to be so. I think there is not to be
found on record, either in our general or state governments, a single
instance, in which the judiciary have ever held a law unconstitutional, that
provided in any way for punishing
the people for the exercise of their rights. The statute books of both the
national and state governments have abounded, and still abound, with statutes
creating odious and oppressive monopolies, infringing men's natural rights,
violating the plainest principles of justice, having no authority in the
constitutions under which they purport to be enacted, and providing fines and
imprisonment's for those who may transgress them; and yet, (,so far as I am
aware), no one of this long catalogue of enactment's ever encountered the
veto of the judiciary. I apprehend that the whole judiciary of this country,
state and national, might be safely challenged to produce a single instance,
in which they have ever vindicated a single principle of either natural or
constitutional liberty, against the penal encroachments of the legislatures
on which they were dependent. On the contrary, they have
uniformly ‑‑ probably without a solitary
exception ‑‑ proved themselves, in all
questions of this nature, to be nothing but the willing instruments of
usurpation and oppression. They do not accept their offices with any other
intention than that of holding all laws constitutional, which they suppose
the legislature will pass ‑‑ for no- [*39]
body accepts an office, unless with the intention of being obedient to those,
to whom they are amenable.<FN9> The
idea, so constantly asserted, that the permanent
judiciary, the judges, have a right to decide all constitutional questions, authoritatively for the people, is one
of those gross impostures, by which men have always been defrauded of their
rights. There is not a syllable in the constitution, that makes a decision of
the judiciary ‑‑ of its own force, and
without regard to its correctness ‑‑ binding
upon any body, either upon the executive, or the people. In the very nature
of things, nothing but the law can
be binding upon any one. If a judicial decision be according to law, it is
binding; if not, not. An unconstitutional judicial decision is no more
binding, than an unconstitutional legislative enactment ‑‑ and
a man has the same right to resist, by force, one as the other, and to be
tried for such resistance by a jury, who judge of the law for themselves. Suppose
the judiciary, in a suit between two pretended mothers, for the custody of a
child, should give the judgment of Solomon, that the child be cut in two, and
a half given to each; does any one suppose the executive would be bound to
carry the judgment into effect? or that the opinion is obligatory as an
authority upon any body? Yet it would be as much binding as any other
erroneous decision. If a
judicial decision contrary to the constitution, were binding simply because
it were a judicial decision, the judiciary could constitutionally make
themselves absolute sovereigns at once. A
judicial decision, as such, has therefore no intrinsic authority at all; its constitutional authority rests
wholly upon its being in accordance with the constitution. And we can
determine whether it be in accordance with the constitution, only by first
determining the meaning of the constitution, independently of the decision,
and then comparing the decision with it. If we take the decision as authority
for the meaning of the [*40] constitution, all decisions will of necessity be
constitutional, and the judges are of course, constitutionally speaking,
absolute despots. It is
no argument, in answer to this view of the case, to say, that decisions may
be so grossly and palpably unconstitutional as not to be binding; but that in
all doubtful cases they are
obligatory. The constitution knows nothing of doubtful cases. In its view
decisions and laws are simply either constitutional or unconstitutional. It
knows nothing of their being more or less grossly and palpably so. If they
are constitutional, they are binding; if they are not constitutional, they
are not binding, though their variation from the constitution be but the
smallest that can be discovered. The
constitution does not assume that it needs
any authoritative interpreter. It assumes that its meaning is known to the
people who ordained and established it, just as all legal instruments assume
that their true meaning is understood by the parties to them. The people, as
parties to the constitution, would not be bound by it, unless they were
presumed to understand it ‑‑ for no one is
bound by a contract, which he is not presumed to understand. The
constitution as much presumes that the people understand its own meaning, as
it does that they understand a judicial opinion. It presumes itself to be as
intelligible as the opinions of courts. It would be absurd for it to presume
that courts would express its intentions more intelligibly than it has itself
expressed them ‑‑ for, in that case, the
language of the courts would be more authoritative than the language of the
constitution; they would consequently make the constitution whatever they
should please to make it; and they would also make themselves whatever they
should please to be. But the constitution has no such suicidal character as
that. On the contrary, it presumes that the people are competent to
understand both the meaning of the constitution and the meaning of the
courts; and consequently that they are competent to determine whether the
opinions and decisions of the courts or- [*41] respond with the constitution,
and whether, therefore, their decisions are to be obeyed or resisted. What,
then, it may be asked, is the use of the judiciary, if it be not to decide
doubts as to the meaning of the constitution? The answer is, that it is their
office to try certain "cases," "controversies," and
"suits," mentioned in the constitution. These cases are presumed to
arise out of disagreements as to facts, or from the dishonesty of one or the
other of the parties, and not from their ignorance of the law, (or
constitution), ‑‑ for every body is
presumed to know the law, although all do not in fact know it ‑‑ neither
the people nor the courts. And the judiciary are to try these
"cases," "controversies," and "suits," ‑‑ that
is, they are to ascertain the facts, and determine the resulting rights of
the parties ‑‑ by the standard of the constitution, as a known standard; a standard
that is presumed to be known to both the parties, as well as to the courts. The
judiciary are in a situation analagous to that of any other umpire, who
should be agreed upon, for instance, by the parties in a controversy, to
measure a certain commodity by a certain standard ‑‑ as,
for example, to measure certain cloth by a yard stick. The submission of this
controversy to the umpire, implies that the parties, as well as the umpire,
understand the length of the yard stick ‑‑ but
that they nevertheless disagree as to the true admeasurement of the cloth.
They therefore agree to abide the decision of the umpire. In the
performance of his office, it becomes necessary for this umpire ‑‑ for
a guide to his own duty, and not for the information of the parties or the
public, ‑‑ to ascertain what is a yard
stick. And if he honestly measure the cloth by a yard stick, the parties are
bound by his admeasurement. But if this umpire, either from ignorance or
design, measure the cloth by a stick, that is either more or less than a
yard, calling such stick a yard stick, the admeasurement is not binding upon
the parties ‑‑ because the submission of
the case to the umpire was made upon the express condition that the
admeasurement should be made by a yard stick. And the party, who has been
wronged [*42] by the false admeasurement, has a right to resist the execution
of the umpire's decree. The
case is the same with the judiciary. They are umpires, appointed to measure
the rights of parties, by a certain
standard, to wit, the constitution. This standard is presumed to be known
to the parties, as well as to the umpires, (for all are presumed to know the
law), although it may in fact be known to none of them. The
umpires ‑‑ in order to perform their own
duty, and not for the information of the parties or the public, ‑‑ must
necessarily ascertain, if they can, what the constitution really is. But if,
through ignorance or design, they put a false meaning upon the
constitution ‑‑ thus adopting a false standard ‑‑ and
then measure the rights of the parties by this false standard, the parties
are not bound by their decision, because the submission was made to them only
on the condition that their rights should be measured by that particular
standard, the constitution ‑‑ and not by
any false standard which the umpires, through ignorance or design, might
adopt. And the party, who is wronged by the decision, has a right to resist
the execution of it, to the best of his power. And if tried criminally for
such resistance, his tries (the jury) must judge whether the decision of the
umpires was according to the standard agreed upon by the parties ‑‑ that
is, according to the constitution. But it
is thoroughly ridiculous to talk of these umpires having fixed or established
the standard itself ‑‑ that is, the meaning
of the constitution ‑‑ merely because, in a
particular instance, they measured the rights of certain parties by the
constitution. There would be as much reason in saying that the umpire, who
measured the cloth by a yard stick, established the length of the yard stick
by so doing, as to say that the judiciary establish the meaning of the
constitution, whenever they pretend to measure rights by the constitution.
Any thing they said or did in one instance, between certain parties, has no
binding force, of itself, in any
subsequent case between the same, or any other, parties. The standard, alone,
or a true admeasurement by the standard alone, is binding in all cases. If
the first admeasurement were correct, that admeasurement estab- [*43] lished
simply the rights measured by it. It did nothing towards fixing the standard itself, by which the rights were measured.
And any subsequent correct admeasurement will, in like manner, establish the
rights measured by it; but will do nothing towards fixing the standard
itself. The standard itself needs not to be fixed, for it was fixed before
any rights at all had been measured by it. But to say because one
admeasurement has been made thus,
therefore all future admeasurements must be made thus, is ridiculous. The admeasurements are all bound to be made
correctly, according to the standard. But if one have been made wrong, that
is no reason why all future admeasurements must be made wrong, nor why the
people are bound to presume that all future admeasurements will be made
wrong. Whether any admeasurement be made wrong, or not, each one must judge
for himself, and resist the decision of the umpires at the peril of being
tried for such resistance by a jury. CHAPTER
III.
Liability of United
States Officers to be punished, under the State Laws: for executing the acts
of 1793 and 1950.
If the
laws of 1793 and 1850 are unconstitutional, they are no laws, in the view of
the constitution; consequently they confer no authority on any one; and the
United States judges, commissioners, marshals, ~c., who may assist in sending
men into slavery, in performance of them: are liable to be punished, under
the State laws, as kidnappers, the same as they would have been if Congress
had passed no act on the subject. The
constitution contemplates that alt officers of the United States, except
Senators and Representatives, may be punished for any' crimes done under
color of their office; for it declares, that, in addition to impeachment,
they "shall be liable, and subject to, indictment, trial: judgment: and
punishment according to law." (Art. 17 Sec. 3, Ch. 7). [*44] If any
one of these officers were to commit murder, rape, arson, theft, or any other
crime, either under color of his office, or otherwise, his office is no
protection to him against the laws of the State. And it is the same in the
case of kidnapping, as it would be in the case of any other crime. The
only question, that can be raised in their defence, is, whether they are
bound to know that an act, that has passed through the regular forms of being
enacted, is unconstitutional? This
question is answered by the simple principle, that every body is bound to
know the law. If that obligation be imperative upon any one, it is imperative
upon those who administer the law. The constitution is the fundamental, the
paramount law, and all officers of the government are sworn to support it. Of
course they are presumed to know it, and bound to know it, else their oaths
to support it would be but nonsense. If
they are bound to know the constitution itself, they are of course bound to
know whether an act, that has passed Congress, be in conformity with
it, ‑‑ else in executing the act they would
be liable to commit a breach of their oaths to support the constitution. They
are also sworn to administer and execute the laws of the United States.
Unless they were presumed to know, and bound to know, what are, and what are
not, laws of the United States, within the meaning of the constitution, this
oath also is an absurd one. If the
judges or executive officers were bound to consider every act, that may pass
Congress, a constitutional one ‑‑ that is,
a law, within the meaning of the
constitution, ‑‑ their oath to support the
constitution, and. their oath to support the laws, would come in conflict
with each other, whenever an unconstitutional act was passed. Indeed we all know that the judiciary are not bound to consider an act of congress constitutional; and if the judiciary are not, no other branch of the government is, for each department of the government judges of the constitution for itself, [*45] independently of the others, ̴ |