The Ohio Star, 1852-09-30

tne oupreroe uran, nas Deen since in nigh quarters pro pronounced - nounced pronounced unconstitutional. If it erred as to the Bank, it may have erred also as to fugitives from labor. But the very Act contains a capital error on this very sub sub-ject, - ject, sub-ject, so declared by the Supreme Court, in pretending to vest a portion of the judicial power of the Nation in State officers. This error takes from the Act all au authority - thority authority as an interpretation of the Constitution. 1 dis dismiss - miss dismiss it. The decisions of the Supreme Court are entitled to great consideration, and will not be mentioned by me except with respect Among the memories of my youth are happy days in which I sat at the feet of this tri- bunal, while Marshall presided, with Story by his side. The pressure now proceeds from the case of Prigg vs. Pennsylvania, (16 Peters. 539,) wherein the power of Congress over this matter is asserted. Without going into any minute criticism of this judgment, or consider considering - ing considering the extent to which it is extra-judicial, and there therefore - fore therefore of no binding force, all which has been already . done at the bar in one State, and by an able court in another; but conceding to it a certain degree of weight as a rule to the judiciary on this particular point, still it does not touch the grave question arising from the de denial - nial denial of Trial by Jury. This judgment was pronounced by Mr. Justice Story. From the interesting biography of this great jurist, recently published by his son, we derive the distinct statement that the necessity of Trial by Jury was not before the Court; so that, in the esti mation of the Ju-lge himself, it was still an open ques question. - tion. question. Here aie the words: 'One prevailing opinion, which has created great prejudice against this judgment, is, that it denies tbe right of a person claimed as a fugitive from service or labor to a trial by jury. This mistake arises from sup supposing - posing supposing the case to involve the general question as to the constitutionality of the Act of 1793. But in fact no such question was in the case; and the argument that the Act of 1793 was unconstitutional, because it did not provide for atrial by jury according to the requisitions of the sixth article in the amendments to the Constitn Constitntion, - tion, Constitntion, having been suggested to my father on his return from Washington, he replied that this question was not argued by counsel nor considered by the Court, and that he should still consider it an open one." But whatever may be the influence of this judgment as a rule to the judiciary, it cannot airest our duty as legislators. And here I adopt with entire assent the . language of President Jackson, in his memorable Veto, in 1832, of the Bank of the United States. To his course was opposed the authority of the Supreme Court, and this is his reply: "If the opinion of the Supreme Court covers the whole ground of this Act, it ought not to control the co coordinate - ordinate coordinate authorities of this Government The Con Congress, - gress, Congress, the Executive, and the Court, must each for it itself - self itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath ta support the Con- stitution, swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Sen Senate, - ate, Senate, and the President, to decide upon the constitution constitutionality - ality constitutionality of any bill or resolution, which may be presented to them for passage or approval, as it is of the Supreme Judges when it may be brought before them for judicial deeision. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive, when acting in their legislativeeapaci legislativeeapaci-ties, - ties, legislativeeapaci-ties, but to have only suchinfiuence as the force of their reasoning may deserve."" With these authoritative words of Andrew Jackson I dismiss this topic The early legislation of Congress and the decisions of the Supreme Court cannot stand in our way. I advance to the argument (1.) iVoir.jSrsr, of the power of Congress over this sub subject. - ject. subject. The Constitution contains powers granted to Con Congress, - gress, Congress, compacts between the States, anil prohibitions ad addressed - dressed addressed to the Nation and to the States. A compact or prohibition may be accompanied by a power, but not nessarily, for it is essentially distinct in its nature. And here the single question arises, whether the Con Constitution, - stitution, Constitution, by grant, general or special, confers upon Con-

with a halter about his neck, ready to be drawn u jn the church. The movement against Slavery is his proposition failed to be adopted. A tyrannical from the Everlasting Arm. .Even now it is gather gather-spirit - spirit gather-spirit among us, in unconscious imitation of this mg jts forces, soon to be confessed everywhere. It antique and discarded barbarism, seeks to surround mav not yet be felt in the high places of office and an offensive institution with a similar safeguard, power; but all who can put their ears humbly to the In the existing distemper of the public mind and ground, will hear and comprehend its incessant and at this present juncture, no man can enter upon advancing tread. the service which I now undertake, without a per- The relations of the Government of the United onal responsibility, such as can be sustained only States I speak of the National Government to by that sense pf duty which, under God, is always slavery, though plain and obvious, are constantly our best supports That personal responsibility I misunderstood. A popular belief at this moment accept. Before the Senate and the country let me make Slavery a national institution, and, of course, be held accountable for this act, and for every word renders its support a national duty. The extrava- which I utfer. r . . gahce of this error can hardly be surpassed. An ..With me, ir, there is no alternative. Painfully institution, which our fathers most carefully omit- convinced of the unutterable wrongs and woes of ted to name in the Constitution, which, according alavery ; profoundly believing that, according to t0 tne debates in the Convention, they refused to the true spirit of the Constitution and the senti- COvcr with any "a tnction," and which, at the origi- ments of th i fathers, it can find no place under our nai organization of the Government, was merely National Government that it is in every respect sajfionoiexisting nowhere on the national territo- sectumal, and in no respect national that it is al- Ty jg now aDOve all other things blazoned as na- ways and everywhere the creature and dependent tional. Its supporters plume themselves as nation- of the States, and never anywhere the creature or ai. xhe old political parties, while upholding it, dependent of the Nation, and that the Nation can cia;m to be national. A National Whig is simply a never, by legislative or other act, impart to it any slavery Whig, and a National Democrat is simply support, under the Constitution of the United a Slavery Democrat, in contradistinction to all who States; with these convictions, I could not allow regard Slavery as a sectional institution, within the thi session to reach it close, without making or exclusive control of the States, and with which the seizing an opportunity to declare myself openly nation has nothing to do. , "1 against the usurpation, injustice, and cruelty, of As Slavery assume to be national, so, by an the late enactment by Congress for the recovery of equally strange perversion, Freedom is degraded to fugitive slaves. Full well I know, sir, the difEcul- be sectional, and all who uphold it, under the na- ties of this discussion, arising from prejudices of tional Constitution, share this same epithet. The opinion and from adverse conclusions, strong and honest efforts to secure its blessings, everywhere

fbrin in history as a single example of such irra irrational - tional irrational defiance ot the true principles of all law. To make a law final, so as not to be reached by Congress, is, by mere legislation, to fasten a new provision on the Constitution. Nay, more; it gives to the law a character which the very Constitution does not possess. The wise father did not treat the country as a Chinese foot, never to grow after infancy; but, anticipating Progress, they declared expressly that their Great Act is not final. Ac According - cording According to the Constitution itself, there is not one of its existing provisions not even that with re regard - gard regard to fugitives from labor which may not at all times be reached by amendment, and thus be drawn into debate. This is rational and just. Sir, noth nothing - ing nothing from man's hands, nor law, nor constitution, can be final. Truth alone is final. Inconsistent and absurd, this effort is tyrannical also. The responsibility for the recent Slave Act and for Slavery everywhere within the jurisdiction of Congress necessarily involves the right to dis discuss - cuss discuss them. To separate these is impossible. Like the twenty-fifth rule of the House of Representa Representatives - tives Representatives against petitions on Slavery now repealed and dishonored the Compromise, as explained and urged, is a curtailment of the actual powers of leg legislation, - islation, legislation, and a perpetual denial of the indisputable principle that the right to deliberate is co-extensive with the responsibility for an act. To sustain Sla Slavery, - very, Slavery, it is now proposed to trample on free speech. In any country this would be grievous; but here, where the Constitution expressly provides against abridging freedom of speech, it is a special outrage. In vain do we condemn the despotisms of Europe, while we borrow the rigors with which they re repress - press repress Liberty, and guard their own uncertain pow power. - er. power. , For myself, in no factious spirit, but solemnly and in loyalty to the Constitution, as a Senator of Massachusetts, I protest against this wrong. On SI tvery, as on every other subject, I claim the risht to be heard. That right I cannot, I will not aban abandon. - don. abandon. "Give me the liberty to know, to utter, and to argue freely, above all liberties." These are the glowing words which flashed from the soul of John Milton in his struggles with English tyranny. With equal fervor they should be echoed now by every American, not already a slave. But, sir, this effort is impotent as tyrannical. The convictions of the heart cannot be repressed. The utterances of conscience must be heard. They break forth with irrepressible might. As well ax ax-tempt - tempt ax-tempt to check the tides of Ocean, the currents of the Mississippi, ' or the rushing - waters of Niagara. 'The discussion of Slavery will proceed,

as "owing service or labor" to the same tyrannical pro proceedings. - ceedings. proceedings. If there be any, whose sympathies are not moved for the slave, who do not cherish the rights of the humble African, struggling for divine Freedom, sa warmly as the rights of the white man, let him consider well that the rights of all are equally assailed. "Ne "Nephew," - phew," "Nephew," said Algernon Sidney in prison, on the night be before - fore before his execution, "1 value not my own life a chip, but what concerns me is that the lain which takes away my life may hang every one of you, whenever it is thought convenient." - Though thus comprehensive in its provisions and ap applicable - plicable applicable to all, there is no safeguard of Human Free Freedom - dom Freedom which it does not set at naught It commits this great question than which none is more sacred in the law not to a solemn trial; but to summary proceedings. It commits this question not to one of the high tri bunals of the land bnt to the unaided judgment of a single petty magistrate. It commits this question to a magistrate, appointed, not by the President with the consent of the Senate, but by the Court; holding his office, not during good be behaviour, - haviour, behaviour, but merely during the will of the Court; and receiving, not a regular salary, but fees according to -each individual case. ; - it authorizes judgment on ex parte evidence, by affi affidavits, - davits, affidavits, without the sanction of cross-examination. It denies the writ of Habeas Copras, ever known as the Palladium of the citizen. Contrary to the declared purposes of tne framers of the Constitution, it sends the fugitive back "at the pub-: lie expense." -s. Adding meanness to the violation of the Constitu tion, it bribes the Commissioner by a double fee to pro pronounce - nounce pronounce against Freedom. If he dooms a man to Slave Slavery, - ry, Slavery, the reward is ten dollars; but, saving him to Free Freedom, - dom, Freedom, his dole is five dollars. N The Constitution expressly secures the "free exercise of religion;" but this Act visits with unrelenting pen penalties - alties penalties the faithful men and women, who may render tq, the fugitive that countenance, succor, and shelter, V which in their conscience "religion" seems to require. As it is for the public weal that there should be an end of suits, so by the consent of civilized nations, these must be instituted within fixed limitations of time; but this Act, exalting Slaverv above even the practical principle of universal justice, ordains proceedings against Freedom without any reference to lapse of time. Glancinz onlv.at these noints. and notstooDin? fnrr

ruin any special grant norcan any such power be de derived - rived derived from any other part of the Constitution; for nons BUch exists. The conclusion must be, that no power is delegated to Congress over the surrender of fugitives from labor. In oil contemporary discussions and comments, the Constitution was constantly justified and recommend recommend-ed, - ed, recommend-ed, on the ground that the powers not given to the Gov eminent are withheld from it If under its original provisions any doubt could have existed oh this Sead, TWiT 1 3 r." !'H,gua89 wmove, it, by the Tenth Amendment, which, as we have already seen, -United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively as to the people. Here on the simple text of tha Consti Constitution - tution Constitution 1 might leave this question. But its importance justifies a more extended examination in a two-fold light; first, m the history of the Convention, revealing the jinmistakcahle intention of its msmbers; and sec sec-ondly, - ondly, sec-ondly, in the true principles of our Political System, by sTatesU 1 Ltlrk . u' , j Ahe i'i'Tort Convention.' The arti articles - cles articles ot the old Confederation, adopted bv the Continen Continental - tal Continental lonmss 15th November, 1777, though containing no reference to fugitives from labor, had provisions sub atantially like those in our present Constitution, touch ,' ing the privileges of eitiaens in the several States, the surrender of fugitives from justice and the credit due to the public records of States. But, since the Confed Confederation - eration Confederation had no powers not "expressly delegated," snd as no power was delegated to legislate on theso matters, they were, nnrhirnrnorr ihsn Tlir)"f ' ni " -

i-nieny remarnalile as tne earliest recorded evidence of the unwarrantable assertion, now so common, that this provision was originally of vital importance to the peace and harmony of the country. At last, in 1850, we have another Act, passed by both Houses of Congress and approved by the President, familiarly known as the Fugitive Slave Bill. As I read this statute I am filled with painful emotions. The masterly subtlety with which it is drawn, misht challenge admiration, if exerted for a benevolent pur- pose; but in a n age of sensibility and refinement, a ma machine - chine machine of torture, however skilful and apt, cannot be re regarded - garded regarded without horror. Sir, in the name of the Con Constitntion - stitntion Constitntion which it violates; of my country which it dis honors; of Humanity which it degrades; of Christiani Christianity - ty Christianity which it offends, I arraign this enactment, and now hold it up to the judgment of the Senate and the world. Again 1 shrink from no responsibility. 1 may seem to stand alone; but all the patriots and martyrs of history, all the Fathers of the Republic, are with me. Sir, there is no attribute of God which does not unite against this Act. r 1 Jam 10 refard it now chiefly as an infringement . ? c,onstitution. And here its outrages, flagrant aa manifold, assume the deepest dye and broadest charac character - ter character only when we consider that by its language it is not restrained to, any speeial race or class, to the African or to the person with African blood; but that any inhab inhabitant - itant inhabitant of the United States, of whatever complexion or condition, may be its victim. Without discrimination of color even, and m violation of every presumption of freedom, the Act surrenders all. who

recognise the latter among the means ol promoting that "harmony and proper intercourse;" nor does it anywhere allude to tho provision. The indifference which had thus far attended this subject still continued. The earliest act of Congress, passed in 1793, drew little attention. It was not orig inally suggested by any difficulty or anxiety touching fugitives from labor; nor is there any record of the times, in debate or otherwise, showing that any special im importance - portance importance was attached to its provisions in this regard," The attention of Congress had been directed to fugi fugitives - tives fugitives from justice, at.d. with little deliberation, it un undertook, - dertook, undertook, in the same bill to provide for both classes of cases. In this accidental manner was legislation on this subject first attempted. There is no evidence that fugitives were often seized under this act. From a competent inquiier we learr that twenty-six years elapsed before a single Slavs was surrendered under it in any Free State. It is certain that, in a case at Boston, towards the close of the last century, illustrated by Josiah Ciiincy as counsel, tho crowd about the magistrate at llje examination quietly and spontaneously opened a way for the fuailivo, snd thus the Act failed to be executed. It is also certain that, in Vermont, at the beginning of the century, a Judge of the Supreme Court of this State on applica tion for the surrender of an alleged slave, accompanied by documentary evidence, refused to comply unlets th

little vapor, which has since swollen, as in the Arabian tale, to the power and dimensions of a giant. The next article under discussion provided for the surrender of fugitives from justice. Mr. Butler and Mr. Charles Pinckney, both from South Carolina, now moved open openly - ly openly to require "fugitive slaves and servants to be deliv delivered - ered delivered up like criminals." Here was no disguise. , With Hamlet it was now said in spirit Seems, madam, nay, it is; I know not seems. But the very boldness of the effort drew attention and opposition. Mr. Wilson, of Pennsylvania, at once ob objected: - jected: objected: "This would oblige the Executive of the State to do it at the public expense." Mr. Sherman, of Con Connecticut, - necticut, Connecticut, "saw no more propriety in the public seizing and surrendering a slave or servant than a horse." Un der the pressure of these objections the offensive pro proposition - position proposition was quietly withdrawn. The article for the surrender of criminals was then adopted. On the next day, August 29th, profiting by the suggestions already made, Mr. Butler moved a proposition substantially like that now found in the Constitution not directly for the surrender of fugit ives slaves,' as originally proposed out of "fugitives from service or labor," which, with out debate, or opposition of any kind, was unanimously