Cotton is King, and Pro-Slavery Arguments / Comprising the Writings of Hammond, Harper, Christy, Stringfellow, Hodge, Bledsoe, and Cartrwright on this Important Subject

by Unknown

§ III. The right of Trial by Jury not impaired by the Fugitive Slave Law.

It is alleged that the power to enact such a law does not reside in Congress, because no such power has been "expressly delegated," and because it is not "necessary and proper" to carry any expressly delegated authority into effect. We should have replied to this argument; but it has been urged before every tribunal in which the great question under consideration has been tried, and everywhere refuted. By Mr. Justice Nelson, in the Supreme Court of New York,[221] by Mr. Senator Bishop, in the Court of Errors in the same State,[222] and by Mr. Justice Story, in the Supreme Court of the United States, it has been so clearly, so powerfully, and so triumphantly demolished as to leave nothing more to be desired on the subject. And besides, it has been our object not so much to refute arguments against the law in question, or to establish that which has been so long established,[223] as to show on what slender grounds, and yet with what unbounded confidence, the greatest champions of abolitionism are accustomed to oppose the Constitution, the laws, the judicial decisions, and the uniform practice, of the whole government under which we live.

In pursuance of this design, there is another sophism of theirs, which it now devolves upon us to examine. We allude to the argument that the Fugitive Slave Law is unconstitutional, because it denies the right of trial by jury.

Is this still an open question? In the biography of Mr. Justice Story, published by his son, it is said: "The argument that the Act of 1793 was unconstitutional, because it did not provide for a trial by jury according to the requisitions of the sixth article in the amendment to the Constitution, having been suggested to my father on his return from Washington, he replied that this question was not argued by counsel nor considered by the court, and that he should still consider it an open one." Mr. Sumner adduces this "distinct statement that the necessity of trial by jury was not before the court;" and adds, "So that, in the estimation of the judge himself, it was still an open question."

In the case here referred to—Prigg v. The Commonwealth of Pennsylvania, reported in XVI. Peters—it is true that the question of trial by jury was not argued by counsel nor considered by the court. But if the greater includes the less, then this question was embraced in the decision; for, in that case, Prigg had seized the fugitive slave without process, and carried her away without any certificate from magistrate or judge in the State of Pennsylvania. The court declared that he had a right to do so under and by virtue of the Constitution of the United States. Most assuredly, if he had a constitutional right to such proceeding, then, in such cases, the Constitution dispenses with the necessity of trial by jury.

It was urged by counsel that such summary method of reclaiming fugitive slaves was unconstitutional; but the court decided otherwise. It was insisted by Mr. Hambly, just as it is now insisted by Mr. Sumner and others, that such arrest was unconstitutional, because it was made by the mere will of the party, and not, as the Constitution requires, "by due process of law." Thus the point was presented by the record, argued by the counsel, and overruled by the court.

In overruling this argument the court says: "The owner must, therefore, have the right to seize and repossess the slave which the local laws of his own State confer upon him as property; and we all know that this right of seizure and recaption is universally acknowledged in all the slaveholding States. Indeed, this is no more than a mere affirmance of the principles of the common law applicable to this very subject." Then, after a quotation from Blackstone, the court adds: "Upon this ground, we have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority in every State in the Union to seize and recapture his slave whenever he can do it without any breach of the peace or any illegal violence."

In accordance with this opinion of the court—delivered by Mr. Justice Story—Mr. Chief Justice Taney says: the master "has a right, peaceably, to take possession of him, and carry him away, without any certificate or warrant from a judge of the District or Circuit Court of the United States, or from any magistrate of the State; and whosoever resists or obstructs him is a wrong-doer; and every State law which proposes, directly or indirectly, to authorize such resistance or obstruction, is null and void, and affords no justification to the individual or the officer of the State who acts under it. This right of the master being given by the Constitution of the United States, neither Congress nor a State Legislature can by any law or regulation impair it or restrict it.[224]

Hence it would have been well if Mr. Sumner and the son of Judge Story had looked into this decision again before they proclaimed the opinion that the right of trial by jury is, in such cases, still an open question. Mr. Justice Story himself must, on reflection, have seen that the off-hand expression attributed to him was erroneous. His more deliberate opinion is recorded, not only in the case of Prigg, but also in his "Commentaries on the Constitution of the United States." "It is obvious," says he, "that these provisions for the arrest and removal of fugitives of both classes contemplate summary ministerial proceedings, and not the ordinary courts of judicial investigations to ascertain whether the complaint be well-founded or the claim of ownership be established beyond all legal controversy. In cases of suspected crimes the guilt or innocence of the party is to be made out at his trial, and not upon the preliminary inquiry whether he shall be delivered up. All that would seem in such cases to be necessary is that there should be primâ facie evidence before the executive authority to satisfy its judgment that there is probable cause to believe the party guilty, such as, upon an ordinary warrant, would justify his commitment for trial. And in the cases of fugitive slaves there would seem to be the same necessity of requiring only primâ facie proofs of ownership, without putting the party to a formal assertion of his rights by a suit at the common law."[225]