I might here rest the argument, feeling that, from authority and from reason, from the old and time-honored principles of the common law, as well as from those interpretations of the constitution which have been given by the supreme court, my conclusions are impregnable. But I proceed to notice some of the points taken on the other side; and if I shall occasionally advert to positions that are obviously too shallow and fallacious for discussion, it is only because I wish to omit nothing which any one may think of importance.
It is alleged that the whole force of the above argument, otherwise conclusive, is annulled, because a slave is no party to the constitution, is not under its protecting shield any more than a horse or an ox, and therefore, any provisions, however strong, securing the jury trial, are inapplicable to him. A slave, it is said, is not one of the “people” by whom and for whom the constitution was formed. He is an outlaw, and an outcast. He has no inherent or inalienable rights as a man. What he has, he has ex gratia, by the good will of those who own him, body and soul, and who are graciously pleased to forego some of their legal rights from generosity in themselves, and not from justice to him.
Now, as it seems to me, a most obvious principle confutes this argument utterly. By the laws of the free states, we know no such being as a slave. Our courts, in their functions as state courts, do not understand the meaning of the word slave. To talk to them in that capacity about a slave or slavery, is talking to them in an unknown tongue. In the eye of the legislators of the free states, and in the eye of the courts of the free states, so far as their domestic polity is concerned, there can be no such creature as a slave. The constitution of every free state in this Union must be first altered, before any such being as a slave, or any such condition as slavery, can be recognized under them, as state authorities.
So the constitution of the United States creates no slaves, and can create none. Nor has it power to establish the condition of slavery any where. And I hold further, that if the government of the United States, by escheat, by purchase, by execution against a debtor, or in any other way, should become possessed of a slave, that moment he would be free. The government of the United States can neither hold a slave, nor make valid title to a slave by sale. It is a government whose powers consist of the grants that have been made to it; and nowhere, by no competent party, has any such grant ever been made.
The relation of the government of the United States to slavery consists in this, and in this alone: that when this government was created, slavery existed in a portion of the states; and by certain provisions in the constitution, the existence of this slavery was recognized, and certain rights and duties in relation to it were respectively acknowledged and assumed. But the government of the United States has no more power to turn a freemen in a free state into a slave than it has to turn a slave in a slave state into a freeman.
The officers of the state government being sworn to support the constitution of the United States, the governments of the free states are implicated indirectly in the matter of slavery, as the government of the United States is directly, and not otherwise.
Both by the constitution of the United States, then, and by the constitutions of all the free states, every man found within the limits of a free state is prima facie FREE. No matter what complexion he may wear, or what language he may speak, he is a free man UNTIL some other civil condition is proved upon him, or until he forfeits his freedom by crime. Every man, therefore, in any one of the free states of this Union, has a right to stand upon this legal presumption, and to claim all the privileges and immunities that grow out of it until his presumed freedom is wrested from him by legal proof. It is the most cruel of sophisms to say, that because a man is claimed as a slave, he is not under the protection of the constitution, and then to prescribe a base mode of trial for him, by which he can be proved the thing he is claimed for. On the subject of freedom or slavery, we of the free states know of but one class of men living among us. That class is free. There is no such class as slaves known to our laws. Nor is there any intermediate class, who may be presumed to be slaves on account of their color, or who may be proved to be slaves by less evidence, or by an inferior kind of evidence, because of color.
No axiom is more universal or indisputable, than that the right to freedom in a free state, and the right to be held and treated by the courts as a freeman, has no relation to complexion. If, then, these rights have no relation to complexion, all white men may be arbitrarily presumed to be slaves, and be deprived of the form of trial, secured to them by the constitution, just as well as any colored man can be. The former may just as well be proved to be slaves, on dangerous, or on inferior, or on insufficient evidence, as the latter. No; the liberty to which every man, of whatever color, in a free state, is prima facie entitled, invests him with its protection, and this investiture cannot be stripped from him but by the judgment of his peers or the law of the land,—which, as we have before seen, means trial by jury.
Any other interpretation assumes this as a postulate, namely, that there is a higher or surer kind of trial applicable to freemen, and a lower or inferior mode of proceeding applicable to slaves. And the inhuman inference from this assumption is, that any man against whom a ten-dollar commissioner may issue a warrant as a possible slave, shall forthwith be subjected to the slave’s mode of trial, and be utterly deprived of the freeman’s mode of trial; or, at the best, that he shall be sent away a thousand miles, into another jurisdiction, there only to have the slave’s mode of trial. According to this form of proceeding, the first thing which the commissioner says to his victim is, “Being a slave, you must be tried in a summary manner.” “But I am not a slave,” asseverates the respondent, “and I claim to be tried by my peers under the guaranties of the constitution.” “You are no party to the constitution,” rejoins the commissioner, “and, therefore, not entitled to its shelter. The constitution was made by the people, and for the people, and you are not of them.” Then says the victim, “If I could have the trial due to a freeman, I could prove myself a freeman; but under the form of trial awarded to a slave, I may be adjudged a slave; so that my fate is made to depend not upon my rights, but upon your form of proceeding.” “Even if so,” retorts the mercenary minister of the law, “it is but an imperfection incident to human institutions. Is not one man’s property sometimes taken to pay another man’s debts? and is not one man sometimes executed for another man’s murder? Why, then, should the courts of justice be arraigned, if a freeman, instead of a slave, is sometimes consigned to bondage?”