I have no need to repeat to you the general provisions of this inhuman enactment. No lover of liberty can read them without having their atrocious character burned into his mind ineffaceably. You know that it assumes to dispose of the highest interests of human liberty,—the liberty of soul as well as the liberty of person;—and you know that it also assumes to dispose of the most precious interests of property,—the property that a man has in himself and in all his capacities of physical enjoyment and suffering as well as his property in his money or his goods;—without a single one of those safeguards and protections which the constitution of the country builds up like a rampart of defence around us all. This enactment, too, is no theoretic affair; it is no dead letter on the statute book. It is a living monster, uncaged and turned loose amongst us, to rob and devour at its will.
Now, I have two objections to this law, which absolve me from all obligations to execute it, or, in any way or manner, to assist in executing it. First, I believe it to be contrary to the law of God, which, God helping me, shall be the rule of my conduct, though I should scatter political treasons as the autumn wind scatters leaves. In his dread description of the judgment day, Jesus Christ makes the distinction between saints and sinners to turn upon the fact, whether they have fed the hungry, clothed the naked, and visited those who were sick and in prison. And who so hungry as those who do not own, and cannot own a morsel of bread? Who so naked as those who do not own, and cannot own a shred of a garment to protect them from cold, or from the lascivious eye? And what confinement was ever so hopeless as southern slavery, what prison was ever so deep as that prison-house which holds three millions of our fellow-beings within its melancholy walls,—them and their posterity forever? He that refuses the common acts of hospitality to these victims, when fleeing from their bondage, denies his Lord and Master. He that refuses them, disobeys every precept of the Savior, and has no more right to call himself a Christian, than has the Fejee islander, when he rises from his cannibal banquet. He is the Levite who passes by on the other side.
And next, I hold this law to be contrary to the constitution of the United States, and therefore of no binding force upon my conscience or my conduct. I do not mean to say by this that I shall make forcible opposition to it. I take the Quaker ground upon this subject; I will not assist to execute it, though I shall suffer it to execute itself on me.
The constitutionality of this law has been extensively discussed. But there is this broad difference between the arguments of those who affirm and those who deny that it is constitutional. Those who deny it, argue the question upon its merits, upon principle, upon those legal relations and analogies that so nobly characterize the English law on the subject of human liberty. But those who affirm the constitutionality of the law, base their argument upon technicalities and upon precedents, and they cannot sustain themselves for a moment on any other ground. They found themselves, in the first place, upon the statutory precedent of 1793, which was an act passed with very little deliberation, as its history shows, and passed, too, when it was expected on all hands that slavery would soon die out. In the next place, they rely upon the judicial precedent of Prigg’s case, which was made by a bench of slaveholding judges, and some of the points which the court professed to decide did not arise in the case.
Now the statutory precedent covers only a part of the case; for some of the most hateful features of the law of 1850 are not to be found in the law of 1793; and the supreme court has never passed upon the law of 1850 at all. So two points are clear in the outset, that the champions of the law cannot get along without the precedents, and the precedents, in several most important particulars, fail them altogether.[21]
This question has lately been discussed in our own vicinity. The liberty of a resident of Massachusetts,—a man every way entitled to a jury trial by our constitution and laws, as much as you or I,—has been sacrificed by a United States commissioner in the city of Boston.[22] He has decided in favor of the law. You would naturally suppose that, in order to shelter himself from the odium of such a decision, he would put all personal and all collateral resources into requisition to make the case as plausible as ingenuity can make it. It is said, too, that Mr. Webster and Mr. Webster’s friends, and the commissioner’s friends have contributed of their strength to help the debility of the case. While the cause was pending before him, one of the points involved in it was brought before the supreme court of Massachusetts, and also before the circuit court of the United States. The commissioner adjourned the case over after all the arguments of counsel were in. He thereby gave himself an opportunity for preparation and for consultation. I am taking no exception to all this. I am glad it was done. I suppose we now have the breadth and length and strength of what can be alleged in favor of the law. I never feel so confident of my conclusions as when strong men have taken the opposite side, and have failed to sustain it.
Now, to this decision of the commissioner, made under such incitements, and with such opportunities, I propose to invite your attention. The discussion may be dry, but it will not be uninteresting; for it involves matters as important as the liberty of the body and the liberty of the will, and the liberty and life of the human soul.
It may be said that these are legal and constitutional questions, and, therefore, that unprofessional men cannot understand them. But most, if not all the points which I shall bring to your attention, are matters of intuition; questions wholly within the jurisdiction of plain common sense, and such, therefore, as can be decided by you as well as by lawyers or judges. And if I can convince you of the inconclusiveness of some parts of this decision, of the legal Jesuitism of other parts, and of the self-contradiction that pervades the whole, you will not hesitate to set it aside, not as null and void merely, but as discreditable to the profession of the law, and dishonorable to the State of Massachusetts.
The first point which the commissioner discusses is, whether in seizing, by his warrant, a man actually free, in deciding, by his judgment, the exact question, whether that man were a slave, and in sending him, by his certificate, where the lash and the law of slavery apply to his body and his spirit, he were exercising “judicial power,” as conferred by the constitution of the United States upon such courts as Congress should establish. He at first decides that he does not exercise such power. This was well; for he knows that he was never appointed, nor commissioned, nor sworn, nor is paid, nor removable from office for mal-conduct, as is prescribed by the constitution in the case of judges. Badly heroic as he was, in fact, in exercising jurisdiction over a human being, and delivering him over into hopeless and irremediable bondage, he was not mad enough to arrogate, in terms, the prerogative of “judicial power.”
But what says his superior, the attorney-general of the United States? In an elaborate opinion, given by order of the President of the United States,—an opinion which, as I suppose, passed under the supervision of the whole cabinet, and therefore may be presumed to have the authority of Mr. Webster and the other constitutional advisers of the President, and which certainly had the sanction of the President himself, for he acted upon it,—in this opinion the attorney-general says,—