The objections most generally urged against this law are of two kinds:
1st. That it is unconstitutional; and
2d. That, even if the framers of the constitution did leave an unguarded opening, through which such a law could be introduced without a breach in the structure of that instrument, still, that it is a cruel law, that it discards all those principles of evidence and forms of proceeding which have been devised by the wisdom of ages for the protection of innocence against power, and that in its whole scope and spirit it is in conflict with our fundamental ideas of human liberty.
It will be seen by this statement, that I here accept the constitution according to its commonly-received interpretation. There is a class of defenders of this law whom I wish to meet on their own ground. I do not, therefore, object here to the constitution as they understand it, but to the law. However much a man may reverence the constitution, though he may make it an idol and worship it, yet I mean to show him that this law is an unholy thing in its presence. I object, then, to the law as a departure from the constitution,—not a departure towards despotism merely, but into despotism. Admitting, what many deny, that when the constitution speaks of “persons held to service or labor,” it means slaves, and admitting that it provides for their reclamation when it says they “shall be delivered up on claim,” I still impeach the Fugitive Slave law for high crimes and misdemeanors against the spirit and the letter of that instrument.
On the question of the constitutionality of this law, the legal minds of the country are divided. It may not be easy to distribute opinions correctly, on this point, into their proper classes, and to decide upon their relative preponderance. If we include slave owners and those whose pecuniary interests connect them directly with slavery, and especially if to those we add a strong party who, from political associations and hopes, have surrendered themselves to a pro-slavery policy, probably the number, if not the weight, of opinion, is in favor of the constitutionality of the law. But if we gather the opinions of disinterested and unbiased men; of those who have no money to make or office to hope for through the triumph of the law, then I think the preponderance of opinion is decidedly the other way. I know it has been said by one prominent individual, that he has heard of no man, whose opinion was worth regarding, who denied the constitutionality of the law. Now, as it is a fact universally known, that gentlemen who have occupied and adorned the highest judicial stations in their respective states, together with many of the ablest lawyers in the whole country, have expressed opinions against the constitutionality of this law, I have but one single word of reply to a declaration so arrogant and insolent as this. That reply is, that on a great moral and political, as well as legal question,—a question that connects itself with ethics, as well as with partisan politics, and the success of old parties or the formation of new ones,—integrity is as necessary to the formation of a sound opinion as intelligence.
I think, however, that one further remark should in candor be made, in regard to the difference of opinions held by honest men on this subject. The constitutionality or unconstitutionality of the Fugitive Slave law is not a question to be determined solely by any single and simple provision of the fundamental law. Numerous clauses in the constitution have a bearing upon it. It connects itself with contemporaneous history. It presents a case where commentators and expounders must appeal to precedents and analogies, and to general principles respecting the nature of government and the object of all law. It is therefore a question of construction and interpretation. And, what is a more important consideration still, it belongs emphatically to that class of cases where men, who have been trained under one class of institutions, and whose minds have been moulded and shaped by the universal prevalence of one set of opinions and one course of practice, may honestly come to one conclusion, while those who have grown up under adverse opinions and an adverse practice,—or rather, into whose minds adverse opinions and adverse practices have grown, until they have become a part of the very substance of those minds,—may honestly come to an opposite conclusion. We know, too, that in addition to the powerful influences of education and training, the general cast and structure of men’s minds predispose them to take one side or the other of great political and religious questions. Natural biases operate like a law of gravitation to sway different minds in different directions. When, therefore, a southern gentleman, into whose perceptions and reasonings and moral sentiments, the facts and the creed of slavery have been incorporating themselves ever since he was born, tells me that he believes even such a law as this to be constitutional, I can still concede the fulness of his integrity, however strongly I may dissent from the soundness of his opinion. It is a law that might be held constitutional by a bench of slaveholders, while it would be held unconstitutional by all the inhabitants of a free land. It is a law that might be held valid by the courts of Austria, while it would be held invalid by those of England. It is a law which the judges of Westminster Hall might have held valid in the time of the Stuarts, which they might and probably would have held invalid in the eighteenth century; and, in the nineteenth century, would certainly have reprobated and annulled.
My own opinion is, in view of the great principles of civil liberty out of which the constitution grew, and which it was designed to secure, that this law cannot be fairly and legitimately supported on constitutional grounds. I express this opinion because, after having formed it with careful deliberation, I am now bound to speak from it, and to act from it. I have read every argument, and every article in defence of the law, that I could find, from whatever source emanating. Nay, I have been more anxious to read the arguments made in its favor than the arguments against it; and I think I have seen a sound legal answer to all the former. As for any arrogant or supercilious dictum, either that the law is constitutional or that it is not constitutional, unaccompanied by any reason or any reference, all reflecting men must regard it as sheer insolence, come from what quarter it may.
Even should the supreme court of the United States declare the law to be constitutional, then, though we must acknowledge their decision, as to the point decided, to be the law of the land, until it is set aside, yet, without any disrespect to that tribunal, we may still adhere to our former opinion. We know how that court is constituted. A majority of its members are from slaveholding states. Independent, too, of all other considerations, they will feel a strong desire to maintain a former opinion, which was also given when a majority of its judges were from the south. We may, therefore, place our dissent on grounds which, two years ago, when the “Clayton compromise,” so called, was under discussion, were so well stated by a distinguished senator from Ohio, [Mr. Corwin,]—grounds perfectly respectful on our part, and not derogatory to the court. He said,—
“It is a sad commentary upon the perfection of human reason, that, with but few exceptions, gentlemen coming from a slave state ... all eminent lawyers on this floor, from that section of the country, have agreed that you have no right to prohibit the introduction of slavery into Oregon, California, and New Mexico; while, on the other hand, there is not a man, with few exceptions, (and some highly respectable,) in the free states, learned and unlearned, clerical or lay, who has any pretensions to legal knowledge, but believes in his conscience that you have a right to prohibit slavery.... How is this? Can I have confidence in the supreme court of the United States, when my confidence fails in senators around me here? Do I expect that the members of that body will be more careful than the senators from Georgia and South Carolina to form their opinions without any regard to selfish considerations?”
Besides, the supreme court have already, as I will show, decided certain points in such a way that, if they maintain the Fugitive Slave law, they will be obliged to overrule those points; and it is more creditable to them to suppose they will overrule their decision in Prigg’s case, than to suppose they will overrule other decisions in other cases.