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Page 68
Several expressions in the provision for the surrender of fugitives from
service show the essential character of the proceedings. In the first
place, the person must be, not merely charged, as in the case of
fugitives from justice, but actually held to service in the State which
he escaped. In the second place, he must "be delivered up on claim
of the party to whom such service or labor may be due." These two
facts--that he was held to service, and that his service was due to
his claimant--are directly placed in issue, and must be proved. Two
necessary incidents of the delivery may also be observed. First, it
is made in the State where the fugitive is found; and, secondly,
it restores to the claimant complete control over the person of the
fugitive. From these circumstances it is evident that the proceedings
cannot be regarded, in any just sense, as preliminary, or ancillary
to some future formal trial, but as complete in themselves, final and
conclusive.
These proceedings determine on the one side the question of property,
and on the other the sacred question of personal liberty in its most
transcendent form,--Liberty not merely for a day or a year, but for
life, and the Liberty of generations that shall come after, so long as
Slavery endures. To these questions the Constitution, by two specific
provisions, attaches Trial by Jury. One is the familiar clause, already
adduced: "No person shall be deprived of life, liberty, or property
without due process of law,"--that is, without due proceeding at law,
with Trial by Jury. Not stopping to dwell on this, I press at once to
the other provision, which is still more express: "In suits at common
law, where the value in controversy shall exceed twenty dollars, the
right of Trial by Jury shall be preserved." This clause, which does not
appear in the Constitution as first adopted, was suggested by the very
spirit of freedom. At the close of the National Convention, Elbridge
Gerry refused to sign the Constitution because, among other things,
it established "a tribunal without juries, a star chamber as to civil
cases."
Many united in his opposition, and on the recommendation of the First
Congress this additional safeguard was adopted as an amendment.
Opposing this Act as doubly unconstitutional from the want of power
in Congress and from the denial of trial by jury, I find myself again
encouraged by the example of our Revolutionary Fathers, in a case which
is a landmark of history. The parallel is important and complete. In
1765, the British Parliament, by a notorious statute, attempted to draw
money from the colonies through a stamp tax, while the determination of
certain questions of forfeiture under the statute was delegated, not to
the Courts of Common Law, but to Courts of Admiralty without a jury. The
Stamp Act, now execrated by all lovers of liberty, had this extent and
no more. Its passage was the signal for a general flame of opposition
and indignation throughout the colonies. It was denounced as contrary
to the British Constitution, on two principal grounds--first, as
a usurpation by Parliament of powers not belonging to it, and an
infraction of rights secured to the colonies; and, secondly, as a denial
of Trial by Jury in certain cases of property.
The public feeling was variously expressed. At Boston, on the day the
act was to take effect, the shops were closed, the bells of the churches
tolled, and the flags of the ships hung at half-mast. At Portsmouth, in
New Hampshire, the bells were tolled, and the friends of liberty were
summoned to hold themselves in readiness for her funeral. At New York,
the obnoxious Act, headed "Folly of England and Ruin of America,"
was contemptuously hawked about the streets. Bodies of patriots were
organized everywhere under the name of "Sons of Liberty." The merchants,
inspired then by liberty, resolved to import no more goods from England
until the repeal of the Act. The orators also spoke. James Otis with
fiery tongue appealed to Magna Charta.
* * * * *
Sir, regarding the Stamp Act candidly and cautiously, free from
animosities of the time, it is impossible not to see that, though
gravely unconstitutional, it was at most an infringement of civil
liberty only, not of personal liberty. There was an unjust tax of a few
pence, with the chance of amercement by a single judge without a jury;
but by no provision of this act was the personal liberty of any man
assailed. No freeman could be seized under it as a slave. Such an act,
though justly obnoxious to every lover of constitutional Liberty, cannot
be viewed with the feelings of repugnance enkindled by a statute which
assails the personal liberty of every man, and under which any freeman
may be seized as a slave. Sir, in placing the Stamp Act by the side of
the Slave Act, I do injustice to that emanation of British tyranny. Both
infringe important rights: one, of property; the other, the vital right
of all, which is to other rights as soul to body,--the right of a man
to himself. Both are condemned; but their relative condemnation must be
measured by their relative characters. As Freedom is more than property,
as Man is above the dollar that he owns, as heaven, to which we all
aspire, is higher than earth, where every accumulation of wealth must
ever remain, so are the rights assailed by an American Congress higher
than those once assailed by the British Parliament. And just in this
degree must history condemn the Slave Act more than the Stamp Act.
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