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.
Sir, I might here stop. It is enough, in this place, and on this occasion, to show the unconstitutionality of this enactment. Your duty commences at once. All legislation hostile to the fundamental law of the land should be repealed without delay. But the argument is not yet exhausted. Even if this Act could claim any validity or apology under the Constitution, which it cannot, it lacks that essential support in the Public Conscience of the States, where it is to be enforced, which is the life of all law, and with-out which any law must become a dead letter.
With every attempt to administer the Slave Act, it constantly becomes more revolting, particularly in its influence on the agents it enlists. Pitch cannot be touched without defilement, and all who lend themselves to this work seem at once and unconsciously to lose the better part of man. The spirit of the law passes into them, as the devils entered the swine. Upstart commissioners, mere mushrooms of courts, vie and revie with each other. Now by indecent speed, now by harshness of manner, now by denial of evidence, now by crippling the defense, and now by open, glaring wrong they make the odious Act yet more odious. Clemency, grace, and justice die in its presence. All this is observed by the world. Not a case occurs which does not harrow the souls of good men, and bring tears of sympathy to the eyes, and those nobler tears which "patriots shed o'er dying laws."
Sir, I shall speak frankly. If there be an exception to this feeling, it will be found chiefly with a peculiar class. It is a sorry fact, that the "mercantile interest," in unpardonable selfishness, twice in English history, frowned upon endeavors to suppress the atrocity of Algerine Slavery, that it sought to baffle Wilberforce's great effort for the abolition of the African slave-trade, and that, by a sordid compromise, at the formation of our Constitution, it exempted the same detested, Heaven-defying traffic from American judgment. And now representatives of this "interest," forgetful that Commerce is born of Freedom, join in hunting the Slave. But the great heart of the people recoils from this enactment. It palpitates for the fugitive, and rejoices in his escape. Sir, I am telling you facts. The literature of the age is all on his side. Songs, more potent than laws, are for him. Poets, with voices of melody, sing for Freedom. Who could tune for Slavery? They who make the permanent opinion of the country, who mould our youth,whose words, dropped into the soul, are the germs of character, supplicate for the Slave. And now, Sir, behold a new and heavenly ally. A woman, inspired by Christian genius, enters the lists, like another Joan of Arc, and with marvellous power sweeps the popular heart. Now melting to tears, and now inspiring to rage, her work everywhere touches the conscience, and makes the Slave-Hunter more hateful. In a brief period, nearly one hundred thousand copies of Uncle Tom's Cabin have been already circulated. But this extraordinary and sudden success, surpassing all other instances in the records of literature, cannot be regarded as but the triumph of genius. Better far, it is the testimony of the people, by an unprecedented act, against the Fugitive Slave Bill.