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Then we shall not be told that “the owner may not be able to enforce his rights against persons who either secrete, or conceal, or withhold the slave;" for then, there will be no right in favor of an owner, as such, to be enforced against any person who shall secrete, or conceal, or withhold a slave. But there will remain a right of the obligee, to a delivery of his debtor. If he ask more than this, he will be answered: “We leave you to your common law rights, your statutory rights, your rights by the civil law, whatever they may be. Take your debtor. This is all the Constitution gives. Take him, this is all the Constitution yields to one whose debt is founded upon the accident of birth, or of color, and is created by law, without the consent of the debtor, and can be discharged only by servitude for life, servitude not merely for life, but reaching over all generations.”
Then we shall not be told that “the owner may be restricted by local legislation as to the mode or proofs of his ownership,” for then there will be a ready answer: “The Constitution does not inhibit local legislation, or regulation concerning the mode of proof of ownership or claim, unless in consequence of such legis. lation the party claimed would be discharged, and if legislation should work such a consequence it would be void.” Then we shall not be told that “the claimant might be restricted as to the courts in which he should sue, and the actions which he should bring.” For he would have the same remedies in the same courts, and the same forms of action, enjoyed by the citizens of the state in which his suit should be brought, unless the state authorities should abridge his rights in that respect, so as to effect a discharge of the fugitive; and then those regulations would be void. Then we shall not be told “ that the state legislatures might not authorize an execution in rem to deliver a man-for then the man, no longer a thing, would be restored to his constitutional dignity as a person or a man." Then we should no longer be told, that “the state legislatures might leave the owner to the mere exercise of his right to repossess his slave without damages against the party that might retain or withhold him.” For that right is all the Constitution has given, and he is without any claim for damages in any case; or if he should have a claim for damages, it would arise by operation of the common law, or of the civil law, or of whichever might be of force in any state, and any local statute law or regulation which should deprive the plaintiff of it, would
be absolutely void, because it would discharge the party claimed from his lawful obligations.
SECONDLY. Even though the provision, concerning the surrender of fugitives from labor, be ineffectual, and though Congress have the power to give it effect by legislation, the act of 1793 is void, because it transcends the legislative power of Congress.
The power is co-extensive with the legitimate scope and design of the constitutional provision. Neither the legislature, nor the courts, can enlarge or alter it. By a reference to the clause, it will be seen, that under even the construction claimed by our adversary, two objects are assigned—two ends are to be effectedfirst, to avoid any legislation or regulation by the states, in consequence of which, a fugitive from labor might be discharged therefrom ; secondly, to provide that such a fugitive should, upon claim, be delivered to the party to whom his services should be due. The act of 1793, implies a confession by Congress, that no legislation as to the first object was necessary: for it contains none. The act purports to attain the second object by several provisions. The third section authorizes the person to whom labor or service may be due, to seize or arrest the fugitive, and take him or her before the judge of any District or Circuit Court of the United States, in the vicinage, and upon proof to the satisfaction of the judge or magistrate, either by oral evidence or affidavit, that the person so seized or arrested, doth, under the laws of the state from which he fled, owe service or labor to the person claiming him, it shall be the duty of the judge or magistrate, to give a certificate thereof to the claimant, his agent, or attorney, which shall be a sufficient warrant for removing the fugitive to the state from which he fled. The fourth section provides a penalty against any person who shall knowingly and willingly obstruct the claimant in seizing or arresting the fugitive, or who shall rescue him, and also denounces a penalty upon any person who shall harbor or conceal any person after notice that he is such fugitive as aforesaid, and also saves to the claimant his right of action for any such injuries. If this statute be laid by the side of the constitutional provision, it will appear very manifest that the statute exceeds the constitutional power of Congress. First in this : That it authorizes, and for aught that appears, unnecessarily authorizes, a party to be his own bailiff, and to seize his debtor by force in any state without process, without warrant issued upon probable cause, and in viola
tion of the 4th article of the amendments of the Constitution of the United States. That article declares as follows:
“ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but on probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Constitution of the United States was made BY THE PEOPLE of the United States, in the NAME of the PEOPLE, and, however contrary to the fact, it must be deemed to have been made with the implied consent of the whole people, as well slaves as freemen. This is so manifestly a true theory, that I need not fortify it by reference to the Declaration of Independence. A slave, being a person, is one of the people. It is only as one of the people, that he is held to labor by law, and however he may be denied participation in the contract of labor or in the conduct of the government to which he is subjected, he is still a member of the great corporation aggregate for whom the Constitution was made, and is maintained. In his lowest estate—in his most abject servitude, he has some legal rights. He may not be slain, or even assailed, without a cause, and though he may be forbidden to claim a remedy, society claims and enforces it for him. Let it be marked that this fourth article does not limit the rights which it guarantees to citizens only ; but extends them to the people, and of course to every one of the people. If it be maintained that a slave is not entitled to the benefit of this article, in the state where he is bound to labor, we answer that "he becomes ex vi termini one of the people of any other state which he enters, and then acquires a right to the protection of this article, modified only by the provision which forbids his discharge in consequence of the laws of that state.”
Every doubt of the right of the alleged fugitive slave, to the protection of this 4th article, will be removed, by collating it with the 3d clause of the 2d section of the 4th article of the Constitution. Those who are described in both, are described as persons and not as slaves.
The law of 1793 invades the rights of personal liberty secured by the 5th article of the amendments to the Constitution, which declares that “no person shall be deprived of life, liberty, or property, without due process of law.” Due process of law, is a writ or warrant issued by a magistrate, upon probable cause, supported by oath or affirmation, describing the person to be seized.
Again. The law of 1793 invades the 7th article of the amendments. The right of recaption has been declared by this court to be a common law right, and clearly it is not one to be tried in a court of Equity, or of Admiralty. It is, therefore, a right to be tried by a court proceeding, according to the course of the common law, and yet the law of 1793, denies to the person arrested, the privilege of trial by jury.
Again. The act of 1793 is unconstitutional, and void, because it authorizes not merely an unreasonable seizure of a party, without due process of law, but directs that a judgment of disfranchisement and perpetual labor, may be rendered against him in his absence, under duress by the plaintiff, upon ex-parte evidence, without giving him any opportunity to be heard, before judgment, or to review the proceedings afterwards, and throughout the contemplated proceeding, denies him the privilege of bail. And this is in palpable violation of the eighth article of the amendment, which declares, “That excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Again, the fourth section of the act is unconstitutional, because it subjects the party harboring or concealing a fugitive from labor, to punishment. While the constitutional provision does not at all inhibit a citizen from yielding such hospitality and entertainment, he has a natural right to exercise it by the constitution of every society. There is a luxury in affording “succor, help, and comfort” to the needy and oppressed, and we are commanded to do so by divine laws, paramount to all human authority.
If it be answered that Congress has deemed such a provision necessary, to give effect to the Constitution, we reply :
First. The framers of the Constitution, with a full view of all the evils to be prevented, confined the remedy to an inhibition of certain local legislation, and to the extradition of fugitives when claimed.
Secondly. Congress has no power to interdict any duty enjoined by God on Mount Sinai, or inculcated by his Son, on the Mount of Olives.
In truth, an examination of the statute, and a comparison of its provisions with the cotemporaneous legislation of the slaveholding states, shows that its details were not original, and were not new, but were borrowed from statutes of those states, invented to prevent the escape of slaves. When the “ Amendments," which
have been cited, were so strenuously insisted upon by the state of New York, as a condition of accepting the Constitution, the alarms and fears, out of which they arose, were thought by many, groundless, and absurd. It is a melancholy reflection that they have proved inoperative. Still further and stronger guaranties of personal rights will be necessary, if the decision here be adverse to the defendant.
Finally. The act of 1793 is unconstitutional, because, by implication and certain effect, it recognizes slavery as a lawful institution, lawfully creating an obligation to labor. All slavery is an open violation of the personal rights guarantied to the people by the Constitution. However true it may be, that when Congress finds the institution existing in any state, they have no power to disturb it there; it is clear that they have no right to extend it into other states, or compel such states to recognize its peculiar code. Such a power is not expressly conferred by the section which has been considered, nor is it implied by any necessary or reasonable construction. It is manifestly excluded from that portion of the instrument, absolutely interdicted by others which have been recited, and is at war with the spirit of the whole Constitution. We need not refer again, minutely, to its provisions to support this argument. Our senses tell us, our happiness assures us, our pride proclaims, the graves and glory of our ancestors, every day and every hour remind us that we are a FREE People; and that the Constitution is a legacy of liberty, and so far as liberty and slavery depend on that great charter, all men are free and equal. If all this be not evidence enough, we can read the same truth in the severe derision we justly excite throughout the world, and the humiliation we cannot conceal, when we attempt to justify the toleration of slavery.
For myself, an humble advocate in a great cause, I cannot hope, I dare not hope, I do not expect, that principles which seem to me so reasonable, so just and truthful, can all at once gain immediate establishment in this tribunal, against the force of many precedents and the weight of many honored names. But I do humbly hope that past adjudications, by which the Constitution was unnecessarily declared to recognize, sanction, and guaranty slavery, may be reconsidered. I appeal to the court to restore to that revered instrument, its simplicity, its truthfulness, its harmony with the Declaration of Independence—its studied denial of a right of