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Page 65
It commits this great question to a magistrate appointed, not by the
President with the consent of the Senate, but by the Court,--holding
office, not during good behavior, 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 affidavit, without the
sanction of cross-examination.
It denies the writ of _Habeas Corpus_, ever known as the palladium of
the citizen.
Contrary to the declared purposes of the framers of the Constitution, it
sends the fugitive back "at the public expense."
Adding meanness to violation of the Constitution, it bribes the
Commissioner by a double stipend to pronounce against Freedom. If he
dooms a man to Slavery, the reward is ten dollars; but saving him to
Freedom, his dole is five.
The Constitution expressly secures the "free exercise of religion"; but
this Act visits with unrelenting penalties the faithful men and women
who render to the fugitive that countenance, succor, and shelter which
in their conscience "religion" requires; and thus is practical religion
directly assailed. Plain commandments are broken; and are we not told
that "Whosoever shall break one of these least commandments, and shall
teach men so, he shall be called the least in the kingdom of Heaven"?
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 Slavery above even this
practical principle of universal justice, ordains proceedings against
Freedom without any reference to the lapse of time.
Glancing only at these points, and not stopping for argument,
vindication, or illustration, I come at once upon two chief radical
objections to this Act, identical in principle with those triumphantly
urged by our fathers against the British Stamp Act; first, that it is a
usurpation by Congress of powers not granted by the Constitution, and an
infraction of rights secured to the States; and, secondly, that it
takes away Trial by Jury in a question of Personal Liberty and a suit
at Common Law. Either of these objections, if sustained, strikes at the
very root of the Act. That it is obnoxious to both is beyond doubt.
Here, at this stage, I encounter the difficulty, that these objections
are already foreclosed by legislation of Congress and decisions of the
Supreme Court,--that as early as 1793 Congress assumed power over this
subject by an Act which failed to secure Trial by Jury, and that the
validity of this Act under the Constitution has been affirmed by the
Supreme Court. On examination, this difficulty will disappear.
The Act of 1793 proceeded from a Congress that had already recognized
the United States Bank, chartered by a previous Congress, which,
though sanctioned by the Supreme Court, has been since in high quarters
pronounced unconstitutional. If it erred as to the Bank, it may have
erred also as to fugitives from service. But the Act itself contains a
capital error on this very subject, 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 authority as an
interpretation of the Constitution. I 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 when I sat at the feet of this tribunal,
while MARSHALL presided, with STORY by his side. The pressure now
proceeds from the case of Prigg v. Pennsylvania (16 Peters, 539), where
is asserted the power of Congress. Without going into minute
criticism of this judgment, or considering the extent to which it is
extra-judicial, and therefore of no binding force,--all which has been
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 which
springs from the denial of Trial by Jury. This judgment was pronounced
by Mr. Justice Story. From the interesting biography of the great
jurist, recently published by his son, we learn that the question of
Trial by Jury was not considered as before the Court; so that, in the
estimation of the learned judge himself, it was still an open question.
* * * * *
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