PERSONAL LIBERTY LAWS,
(Statutes of Massachusetts,)
SLAVERY IN THE TERRITORIES,
(Case of Dred Scott.)
By  JOEL   PAR T,        I       R. DUPLICATE 
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B O ST O N:
WRIGHT & POTTER, PRINTERS, 4 SPRING LANE.
1861.
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MEMORANDUM.-The following Letters were originally prepared for publication
in the "Boston Journal."
The first part of the earliest letter was written, as it will be seen, in justification of the writer's course, in relation to the  "Personal Liberty  Laws," while
acting as Chairman of the Commissioners on the Revision of the Statutes of
Massachusetts; to which he thought it expedient to subjoin, very briefly, the
expression of his personal opinions respecting those provisions of the statutes,
with some other opinions serving to show that his was not a partisan opposition to them.
At that time he had not even  the most  remote  intention of pursuing the
discussion any farther.   But the subsequent  appearance of divers  papers and
paragraphs, in which other opinions were expressed, induced him to enter upon
the discussion more in detail, in a series of papers which are now collected
for the greater convenience of those who may desire to refer to them, or perchance for the inspection of some who  had no opportunity to see them in the
original publication.
If they may lead to more just views respecting the subjects discussed, the
object of the writer will be attained.
J. P.
CAMBRIDGE, February 28, 1861.
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ERoRo.-Page 62, in Note, second line of last paragraph for "importance," read
impotence. 
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PERSONAL LIBERTY LAWS.
A
Explanatory and Introductory.
To the Editor of the Boston Journal:
The "Atlas and Bee" of the 21st inst., in its leading
article respecting "The Address to the Citizens of Massachusetts," lately published, has this paragraph:
"The name of Judge Parker on this list is very suggestive.  How
does it happen, it will be asked, that so distinguished a jurist, selected
for his ability to revise the statutes of the State, should have permitted laws to remain on the statute book of Massachusetts which
are in conflict with the constitution and laws of the United States?
Of what use is it to subject the State to so large an expense in
codifying the laws if such unconstitutional laws are to be allowed to
continue in force, and that without either remonstrance or suggestion
by the Commissioners? If it be said that the Commissioners themselves had not the power to change their character, had they believed
them unconstitutional, they certainly would have recommended  a
change to the legislative committee, before whom they appeared for 
suggestions and explanations of their labors."
This is somewhat surprising, coming from that paper, the
responsible editors of which must have known and understood that the Resolve of the legislature, under which the
Commissioners acted, contained no provision authorizing
them to judge respecting the constitutionality of the acts of
the legislature, and that it was very clearly not expedient
that they should transcend their duty in that particular.
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PERSONAL LIBERTY LAWS.
Had they done so, and reported against the provisions of the
"Personal Liberty Bill," which had been enacted by one
legislature and amended by another, the burst of indignation which would have followed would have waked the
echoes of Abington, and Lowell, and Worcester, even if it
did not extend to Great Barrington itself.
But in their Introductory Report the Commissioners, after
stating that they had sedulously avoided the introduction of
their personal opinions respecting matters of expediency,
but had considered it their duty to construct the several
chapters according to what appeared to be the general
policy of the legislature, as they found it expressed, added
this clause, viz.: " They have not deemed it a part of their
duty to pass upon doubtful questions of constitutional law,
the presumption being that all the statutes of the State are
constitutional until the contrary appears." As Commissioners, they were not authorized to rebut the presumption, and
determine what was or was not unconstitutional; but here
is a reasonable indication of an opinion that there were some
provisions which were at least of doubtful constitutionality;
and if any member of the legislature had made inquiry to
what provisions reference was thus made, he would doubtless have received a ready answer.  But no one asked, and
certainly further suggestion need not have been volunteered.
The Commissioners had abundant evidence that there were
divers gentlemen in the legislature who deemed themselves
quite competent to the work of revision without their
assistance.
It may be added that when chapter 144, which contains
the provisions in relation to personal liberty was considered
by the Committee of Revision, or by its sub committee,
"Judge Parker" had no personal or official connection with
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PERSONAL LIBERTY LAWS.
either; and when, upon the compromise between the two
Houses, the report of the Committee of Revision was committed to the Commissioners for a report thereon, the
limited submission did not include any consideration of the
constitutionality of the matters contained in the statute
book.  Their duty then was mainly to classify the proposed
amendments, and to ascertain how mnany of the shall be's
which had been retained in the provisions incorporated from
the Revised Statutes, should be struck out, in order to produce uniformity with the Commissioners' Fifth Part.
Moreover, the alteration of the statute in relation to the
writ of habeas corpus, hereafter mentioned, so that it would
issue to the sheriff requiring him to take an alleged fuixilive
slave from the custody of the marshal who held him under
process of the United States, was made by the very legislature which considered the Commissioners' Report, after the
Commissioners had closed their examinations; to wit, on
the 21st of December, 1859. It was the last Act but one
which was incorporated into the revision. So much for the
responsibility of the Commissioners.
Perhaps it may not be amiss if I avail myself of this occasion, to state somewhat more in detail, the reasons which
induce me to believe that several of the provisions of chapter
144 of the General Statutes are unconstitutional. These
reasons were stated a few days since in a letter to a friend
who had made inquiry upon the subject, as will appear by
the following extract:
"This subject came under my  consideration while revising the
statutes, although it was quite apparent that it was not the duty of
the Commissioners, and as apparent that it was not expedient for
them, to report their opinion against the constitutionality of provisions now found in chapter 144 of the General Statutes. My belief,
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PERSONAL LIBERTY LAWS.
from examination at that time, and from subsequent consideration, is
that there are constitutional objections to several sections of that
chapter.
"Section 6 requires a judge of the State court to issue a writ of
habeas corpus, commanding the sheriff to take into his custody any
person restrained of his liberty, &c., unless he is held by certain
officers of this State. Of course he is to take an alleged fugitive out
of the custody of the United States marshal, who holds him under
the process of the United States, and thereby to impede, and thus far
to nullify, the laws of the United States. If the marshal resists the
service, he is liable, under section 38, to be attached as for a contempt.
"Section 19 requires the judge, when a return is made showing
that the party is claimed to be held to service or labor in another
State, on the application of any party to the proceeding, to order a
trial by jury, as to any facts stated in the return of the officer, or
alleged; and to admit the person held in custody to bail; although
the United States process requires the marshal to hold him, and to
dispose of him in accordance with the laws of the United States.
This section also discharges him, on the verdict of the jury, [in his
favor,] from any return to the custody of the marshal. In this
mode it takes the trial of all questions which may arise out of the
jurisdiction of the United States.
"Section 21 changes the ordinary rules of evidence which would
otherwise be applicable to such trial by jury, supposing that to be
admissible, excluding the declarations, even the voluntary declarations, of the alleged fugitive, placing the burden of proof of every
question of fact upon the claimant, requiring two witnesses, and
excluding the very evidence which the Act of Congress allows as
sufficient on the hearing before a United States officer, to show that
the person owed labor or service.
"Section 58 provides for the appointment of commissioners to
secure this extraordinary trial by jury.
"Section 62 punishes any person who assists in removing, or comes
into the State with the intention of removing, or assisting in removing, any person who is not held to service, &c., on pretence that he
is so held, or has escaped, &c.  Unless the term'pretence' is construed to mean fraudulent pretence, which is not a necessary construction, this section compels every one who aids, or comes with the
intention of aiding, in the removal of a supposed fugitive, to judge,
at the peril of the extreme punishment imposed by this section,
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whether the party claimed is held, or has escaped.  Its manifest
tendency, and its undoubted intention, apparent on its face, is to deter
any person from aiding in attempts to reclaim fugitives, and thus to
hinder the execution of the fugitive slave law.
"Section 63 subjects any officer of the State, or member of the
volunteer militia, who aids in arresting a person claimed, or in returning one adjudged to be a fugitive, to a severe punishment, and thus
debars citizens of the United States from aiding in the execution of
the laws of that government. The exemption from the penalties
of this section of members of the volunteer militia who act in
obedience to orders, does not obviate this objection.
"I do not perceive how the constitutionality of either of these
sections is to be maintained so far as they apply to cases where
there are legal proceedings for the reclamation of a fugitive slave,
and it seems to be clear that some of them are not constitutional
when applied to cases where the master attempts to reclaim his slave
without process."
Fartlier consideration of the subject, since the letter above
mentioned  was written, has only served to confirm the
opinions thus expressed; and I may add here, that it will
not be an answer to say, that some of these provisions may
have a constitutional application to other cases than those
where a party claimed as a fugitive slave is in the custody
of an officer of the United States, under process which
commands the officer to hold him, and that they are not
therefore wholly unconstitutional, because they may perhaps 
have a constitutional application to some case. Suppose, for
instance, that a person under an alleged contract for labor
and service to be rendered to him for the term of one year,
imprisoned and detained the other party to the contract, in
order to compel him to perform the service according to the
contract, and that a habeas corpus was issued under the
sixth section. It is not doubted that there would be nothing
unconstitutional in taking such person out of the custody of
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the party holding him, by means of the writ of habeas corpus, and bringing him before a judge, admitting him to
bail, and trying the question of fact, if there was any one
to be tried, by a jury. But no such case is on record, or
likely to exist.  Suppose, also, that the writ of habeas corpus
might be used to take an alleged fugitive slave from the
custody of a party claiming to be his master, who had pursued and captured him without process-wlwhich is by no
means clear. But if that were admitted, the provisions which
have been cited above were not enacted for such cases alone,
nor mainly for that class. Prior to 1859, if the party
alleged to be unlawfully detainled was imprisoned or restrained by a marshal, deputy-marshal, or other like officer
of the courts of the United States, the writ of habeas corpus
was not to be issued commanding the sheriff to take the
party into his custody, but the marshal, or other like officer,
having the custody, was required to bring him before the
judge of the State court, in order to an inquiry whether he
was held lawfully. The alteration in 1859, by which in all
cases, except where the party was in the custody of an officer
of this State, the writ was to be issued requiring the sheriff
to take him into custody, was a change, covering, and designed to cover and apply to, the very case of an alleged
fugitive slave in the custody of the marshal, so as to take
him out of that custody, and then admit him to bail, and to
try all questions by a jury, under the State laws. The contemporaneous history will, I think, show clearly that the
9object of Massachusetts in 1855, was to hinder as far as
possible the return of fugitive slaves. The excuse must be
found in the great provocation, arising from the imprison ment of her colored seamen at the South, in the expulsion
of the agents whom she sent to protect them, and in other
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grievances and wrongs done to her citizens. If this excuse
is not sufficient, it will not be to her honor to attempt to
crawl off now, on an allegation that there are some cases to
which some of the provisions of the personal liberty bill
may be applied consistently with the Constitution and laws
of the United States, and that those provisions must be
taken to mean such cases. Even this cannot be said of all.
Let us meet this question fairly, and dispose of it coniscientiously, under our constitutional obligations.
And now, having said thus much, I am desirous of
saying a few words more, notwithstanding a full comprehension that they are the words of one of those whom
the "Springfield Republican"  speaks of as, "those old
Bourbons of Massachusetts,"  who  "can scarcely govern
more votes than the coats on their backs will cover;" and
it may be added, of one who will be greatly satisfied if he
can always cast the single vote which his coat covers so that
it may subserve the best interests of the country. The
words may furnish material for the consideration of others,
which is the purpose for which they are offered. They seem
to be appropriate accompaniments to the expression of these
opinions respecting the personal liberty bill, and may be
taken in connection with them.
It seems to me that all projects, at this time, for a conventionl to change the Constitution, or for constitutional amendments through the action of Congress, are not only unwise,
but mischievous; because they have a tendency to excite
hopes which cannot be realized. I am persuaded that an
expectation of any amendment of the Constitution is vain
and futile; and unsuccessful efforts to procure amendments
will only excite greater animosity.  The Constitution is well
enough, if all parties perform their duties under it.
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Any attempt in Congress to agree upon a new compromise
line, if it might, by possibility, be successful, is only leaving
the matter open to a speedy renewal of the controversies
which have agitated the country since 1854, and is therefore
to be avoided. What can be settled, had better be settled
now; but we have had sufficient experience that a Congressional  compromise  line  settles nothing.   Congress  can
destroy it again, even if the supreme court cannot. The
doctrine which has been promulgated by some of the incumbents of that benlch, that the Constitution secures a right to
carry slaves into the territories, and protects slavery there,
is utterly indefensible. The question whether slavery shall
be allowed or prohibited in the territories is a political
question, except so far as it may be settled at the present
time by some law which is within the control of Congress.
And if the judges of the supreme court assume to control
its introduction, under the pretence that the Constitution
takes the matter out of the control of Congress, it will
be mere usurpation.
There is one compromise which is practicable, and in my
opinion but one. The Northern States may be induced to
repeal all the provisions of their personal liberty bills which
conflict with the Constitution of the United States, or with
constitutional acts of Congress for the rendition of fugitive
slaves, and they may permit such acts of Congress to be
fairly executed, under the authority of the United States,
without unlawful hindrance by their citizens. These things
they ought to do under their constitutional obligations.
This for one side of the compromise.
An act of Congress, having more regard to the possible
rights of persons claimed as fugitives, and less offensive to
the opinions and feelings of the communities where the law
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is to be enforced, mnay be enacted; and the question of the
admission of slavery into the territories may be left to the
action of Congress, which alone has, or with the present
constitution can have, ally rightful control over that subject.
If Congress prohibits slavery ill a territory, the people who
inhabit it have no constitutional right to legalize it there;
for except by the authority of Congress, they have, while in
a territorial existence, no right of legislation. If Congress
admits slavery, and it is introduced under the protection of
the law of Congress, no legislature, or judicial tribunal, can
prohibit it. If Congress pleases to leave the matter to be
settled by the inhabitants of the territory, no power is authorized to gainsay their conclusion. This may be the other side
of the compromise at present. But after a few weeks more
of violence and expulsion of the citizens of NorthernStates
from States where the Constitution secures, or should secure, to them their rights as citizens of other States, this
side of the compromise may require some additional guaranty, if any call be given, for the personal safety of citizens
of the free States, who may peaceably, and without any violation of law, have occasion to visit some of the Southern
States. Certainly if amendments of the Constitution were
to be made, this subject could not be overlooked. There
can be no question, that ultraism and violence at the South
in and out of the halls of legislation, have done more to
cause the feeling at the North, of which complaint is made,
than all the arguments of the abolitionists. An appeal to
the Northern States to perform their constitutional duties
will not be in vain, when the Southern States abide by their
constitutional obligations.
Furthermore, Congress has no power to interfere with
slavery in the States. No man of ordinary common sense
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asserts any such power. No guaranty is necessary respecting that.
Congress cannot prohibit the transportation of slaves from
one State to another State, and so there is no occasion for
constitutional amendments in relation to that subject. If
the master takes his slaves into a free State, they may
thereby become free under the laws of the State into which
they are introduced, as they would be if sent to England.
He must look to that.
If it may be supposed that regulations affecting a traffic
in slaves, between the slave States, may be made under the
constitutional power of Congress to regulate commerce
between the States, it is not readily seen how that power can
lawfully be exercised so as to do any essential mischief to
the interests of the slave States, so long as they remainl in
the Union. The power must be exercised ini relation to
this subject, upon similar principles to those which will
govern its exercise respecting other matters which form the
subjects of commerce between the States. There is little
or no legislation under this power at present, nor is there
likely to be.
As to slavery in the District of Columbia, there will
always be northern members of Congress enough who, like
Mr. Lincoln, will refuse to abolish it, so long as Maryland
and Virginia remain in the Union, and choose to continue
slave States.
If a settlement of the existing questions now pending
cannot be effected on the basis above indicated, those who
love the Union, and desire its continuance, may as well
accept the alternative, whatever that shall prove to be, at
this time, as at any other. 
Cambridge, December 25, 1860.
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Personal Liberty Laws....No. 1.
The opinions which I expressed ill my letter, published
December 28, relative to the unconstitutionality of several
sections of chapter 144 of the General Statutes, if those
sections are to be understood and interpreted according to
the obvious and ordinary meaning of the words in which
they are expressed, and if they were intended to be applied
to, and cover, the cases which come within the scope of
their provisions, according to the language of the enactment, have not, so far as I am aware, been denied by ally
one. The language is certainly broad enough to include
all cases of alleged fugitives from service or labor, as well
as those where the supposed fugitive is in the custody of
the marshal or some other United States officer, ill virtue of
process, under the provisions of the fugitive slave law, as
those where he is arrested and held without process, by a
private person.  There is no exception of the former cases;
and those are the cases which have occurred, and which led
to the passage of the personal liberty laws. Cases of that
character may be said to be the only cases which can be
expected to occur hereafter; for it is not probable that any
master will attempt the recovery of a fugitive slave here
without legal process, or what he supposes to be legal process, for the purpose; and so far as mere kidnappers are
concerned, the statutes as they existed prior to 1855 were
supposed to be sufficient.
The obvious conclusion, then, would seem to be that these
provisions are intended to operate precisely in accordance
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with the terms in which the legislature has seen fit to
clothe them, and which bring them into direct conflict with
the Constitution and laws of the United States.
But notwithstanding the very broad terms in which they
are expressed, it seems to be supposed that the constitutionality of these sections may be maintained upon the ground
that, in and of themselves, they are well enough; that there
is in the statute no conflict with the provision of the Constitution respecting the return of fugitive slaves, nor any conflict with any portion of the fugitive slave law; that the
command in the writ of habeas corpus by which the sheriff
is to take the custody of a party restrained, and the provision authorizing him to be admitted to bail, and requiring a
trial by jury on demand of any person interested, do not
apply to a case where an alleged fugitive is in the custody
of the marshal of the United States, under process which
requires that officer to hold him, because in such case the
custody of the marshal being lawfiul, the sheriff cannot lawfully take the fugitive from that custody; wherefore the
provisions of the State law are not to be construed as
applying to such a case; and so of the other provisions
respecting bail and the trial by jury. In other words, that
in all cases where the State law cannot lawfully be enforced
according to its terms, because of its conflict with the laws
of the United States, it does not apply, and therefore it is
constitutional. The reason why it cannot be enforced, and
therefore does not apply, being, as I think, that it is unconstitutional.
Another view which is taken of the question is, that the
fugitive being in the custody of the marshal, it is true that
the sheriff cannot take him, and the State judge cannot take
bail, or try the case; but that this results simply from the
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fact that the arrest by the marshal is superior, because prior
in time; and that although the State law is inoperative
in such a case, this shows that there is no conflict, and so
there is no unconstitutionality. The argument seems to be
in effect, that the personal liberty law is in entire harmony
with the constitutional provision, and with the laws of Con  gress respecting the rendition of fugitive slaves, because the
national and State governments have co-ordinate jurisdic  tion, and where one has obtained the lawful custody of a
person, or of property, for the purpose of legal inquiry into
the right to hold the person, or into the title to the property,
the person or property is thereby withdrawn from the cor  responding jurisdiction of the other government until the
investigation is completed; that this does not depend upon
any supremacy or preference of one government over the
other, but upon the naked question which first acquires
jurisdiction of the subject matter to be determined; and
that this view relieves the State statutes from all constitu- tional objections.
It is further argued that the section which provides for
the punishment of a party who aids in the arrest of a person
who is not a fugitive, on the pretence that he is such, applies
only to a party who acts with an " unlawful intent," as well
as does the unlawful act; and that the prohibitions upon the
- civil and military servants of the Commonwealth, apply only
to acts done by them in their official and military capacities,
and do not and were not intended to apply to acts done by
them in their private capacity as citizens of the United
States.
The argument, as above stated, is certainly ingenious.
It evidently emanates from  an acute legal mind.   On a
superficial consideration it may seem to have weight. As
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suredly if it has a just application to the provisions in chapter
144, to which exception has been taken, the objection that
those provisions of the statute are unconstitutional, must be
abandoned; for it is quite clear that there is a class of cases
in which the sheriff or marshal, whichever first serves his
process, will have the right to retain, as against the other,
the custody of the person or property which lie has lawfully
seized under his process, although the other has process in
his hands on which he could make a seizure but for the custody of the first. f And this result is not from any special
provision of law for that purpose in the statutes of either
government; but because this priority of custody gives priority of jurisdiction to hold and dispose of the subject matter
thus seized, according to the purpose for which it was seized;
and this jurisdiction continues until that custody is lawfully
terminated, under the law of the government by which it
was taken. Thus, under the general laws of the United
States, the marshal may attach property, upon a writ issued
by a court of the United States, and, under the laws of the
State, the sheriff, on a similar writ issuing from a State
court, may attach property of the same defendant; but
where one has, onl his writ, seized personal property, the
other cannot, by virtue of the writ in his hands, take that
property out of the custody of the other. And so it would
be in relation to an arrest of the body, if each writ contains
a command for such arrest. This result is reached not from
any special exception in the laws of either government, or
in the command of the writ, but from priority of seizure,
with a right to hold, which excludes a second seizure by
another, acting in a different right.
Now if the laws of the United States, and the laws of the
State on the subject in question, and the different processes
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issued under those laws, were designed to effect the same
purpose, to wit:  the capture and return of the fugitive
slave, the argument would have a much better application.
Its fallacy, on this point, arises from the fact that there is
no analogy whatever between proceedings for the arrest and
return of a fugitive slave, and proceedings to set a man free
from an unlawful imprisonment.
The duty of the United States, under the clause in the
Constitution for the return of fugitives from service and
labor, is to enact suitable provisions regulating the mode in
which the claim shall be made, the examination had, and
the return effected; which duty is single, confined to that
subject; and thle United States in the execution of that
duty restrains personal liberty only for the purpose of a
return. Over the exercise of this duty the State has no
power. Assuming that all persons acting under the laws of
the United States in this behalf proceed according to those
laws, the State has no duty to perform respecting the case.
The duty of the State which is brought in conflict with this
duty of the United States, is to protect persons within the
jurisdiction of the State from unlawful restraint; and for
this purpose the State tribunals may inquire whether a person restrained of his liberty is rightfully so restrained.
This duty is general in its character, having no particular
reference to one kind of unlawful restraint more than another. In relation to fugitives, or alleged fugitives, from
service, this duty of the State is not one of prevention from
arrest. It cannot lawfully be exercised to prevent a fuigitive,Y
from being arrested under the laws of the United States, or
in anticipation or obstruction of the service of the process
of the United States. It can never be performed, therefore, until the party is actually restrained of his liberty,
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under a claim that he shall be returned. Even then, the
duty is not to determine whether he is or is not a fugitive
slave, but to inquire into the restraint, and ascertain whether
it is lawful. If the restraint is found to be lawful under
the claim, there is an end of the State jurisdiction over the
case, whether the party claimed is or is not a fugitive.  The
State authorities cannot commnence proceedings to enforce a
return, under the laws of the United States, nor can they
try the questions which arise in the proceedings under the
fugitive slave law, except those questions which relate to
their regularity.
It is quite apparent, therefore, that there is no co-ordinate
jurisdiction. The question whether a party claimed as a
fugitive is such, and therefore to be returned, is one of
supremnacy or preference, inasmuch as it is to be tried under
and according to the laws of the United States. There is
necessarily a priority of custody, under those laws, for all
matters involved in the execution of the fiugitive slave law
and the State tribunals cannot, under any State law, interfere to try a question of freedom or servitude, by a jury or
otherwise, for the purpose of returning the fugitive, if found
to be such; which is the very jurisdiction exercised by the
courts and officers of the United States. In fewer words,
the jurisdiction of the United States is for the return of
fugitives; the jurisdiction of the State courts is for setting
free persons unlawfully restrained of their liberty; and so
far fromnt being co-ordinate, these different jurisdictions, in
relation to this subject matter, are, so far as they may be,
antagonistic; that of the State being emphatically subordinate, as the latter cannot act upon the subject matter
until the former has acted, nor then, if the proceedings of
the former are regular.
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These positions are stated with reference to the existing
legislation, and do not intend to deny the right of a State,
if it pleases, to exercise the extraordinary comity of passing
laws to aid the master in reclaiming the fugitive, so that the
claimant might act under the State law, instead of that of
the United States. And they assume that the provision of
the Constitution in relation to fugitives from service is to be
enforced by the laws of the United States, and that the laws
passed for that purpose are constitutional.  If the question
were open for contestation, it might well admit of argument
that this constitutional provision is one to be executed by
State authority, but that question is not an open one.  Congress acted upon the constitutional provision as one to be
enforced and executed uinder the authority of the United
States, in 1793, when most of the framers of the Constitution were still alive, and some of them in Congress.
I am not aware that any objection was then made to this
exercise of power, either in or out of Congress; nor was
any heard of for many  years afterward.   The supreme
court of the United States, and the supreme courts of this
and other States, have sustained this interpretation, and the
constitutionality of laws passed under it. If any thing of
legal interpretation and construction can ever be regarded
as settled, this must be so. There can be no stronger case
Some judges of the supreme court of Wisconsin, a few
years since, undertook to controvert it, but a better organization of the bench there has acquiesced in what seems now
to be the uniform judicial construction.
In my next letter, I will consider the true intent and
meaning of the "personal liberty law" of 1855, as derived
not only from its terms, but from some of its antecedents.
Cambridge, January 14, 1861.
19 
PERSONAL LIBERTY LAWS.
Personal Liberty Laws....No. 2.
Having shown that the jurisdiction of the State over
cases where a fugitive from service is arrested under the
acts of Congress, is not co-ordinate with, but subordinate
to, the jurisdiction of the courts and officers of the United
States, charged with the authority and duty to arrest and
deliver the fugitive; I propose, in the next place, to ascertain the meaning and true construction of the sections of
the "Personal Liberty Laws," to which objections have been
made; not merely by the terms of the provisions themselves,
but by thle antecedents which led to their adoption; and
thereby to show that they mean what  they say,-were
intended to apply to and cover the cases which fall within
the terms in which they are expressed,-and that in such
application they are in conflict with the Constitution and
laws of the United States.
The importance of the subject at this time, and the
difference of opinion upon it, will justify a more extended
exposition than I should desire to make under other circumstances.
If we seek the remote causes which led to the passage of
the Personal Liberty Bill of 1855, some of them will be
found in a general aversion to slavery upon moral principles, and because of the unequal political advantages
which, under the Constitution, it gives to the slave States;
and in a particular indignation aroused by some of its
results, as exemplified in the oppression of colored sea
20 
PERSONAL LIBERTY LAWS.
men in South Carolina and Louisiana, the shameful expulsion of Messrs. Hoar and Hubbard, who went to those
States commissioned as agents of Massachusetts to protect
the rights of such seamen by an appeal to the legal tribunals in their behalf, and in various other outrages upon the
citizens of this and other free States, within slave States,
on account of their opinions respecting the "peculiar institution." 
The hostility to slavery, arising from these and other
causes, found sigificant expression outside of the halls of
legislation in 1842, and within them in 1843.
The Fugitive Slave Law of 1793 enacted that the claimant, or his agent or attorney, might seize or arrest the
fugitive, and take him before any judge of the circuit or
district courts of the United States residing or being within
the State, or before any magistrate of a county, city, or town
corporate, where the seizure or arrest was made; and upon
proof, &c., it should be the duty of the judge or magistrate
to give a certificate, which should be a sufficient warrant
for removing the fugitive.
In 1837, Mr. Prigg, as attorney of Mrs. Ashmore of
Maryland, having obtained a warrant from a justice of the
peace in Pennsylvania, caused Margaret Morgan, a negro
woman who was in Maryland a slave for life of Mrs. Ashmore, and who escaped to Pennsylvania in 1832, to be
arrested by a constable. She was carried before a magistrate of the State, who refused to take cognizance of the
case, and thereupon Prigg carried her and her children to
Maryland, and delivered them to Mrs. Ashmore. For this,
Prigg and others were indicted in Pennsylvania as kidnappers. The case was tried in 1839, and the jury found a
special verdict, setting forth the facts and certain laws of
21 
PERSONAL LIBERTY LAWS.
Pennsylvania bearing upon the case. Judgment was ren dered, by agreement of counsel, against the defendants in
the State court; and they brought a writ of error to the
supreme court of the United States, for the purpose of
having an authoritative adjudication upon the questions
arising in the case. This is the famous case of Prigg vs.
Pennsylvania, found in 16 Peters' Reports, 539, and so
often referred to in discussions about the return of fugitive
slaves.  Seven judges delivered opinions; and there is about
the usua amount of that diversity of views respecting the
different points under consideration, which, for many years
past, has caused the opinions of the judges of the supreme
court of the United States to have very little weight, except
as regards the precise point upon which the case is decided.
The general opinion of the court was delivered by Mr. Justice Story.   As  summed  up by Mr. Justice Wayne, it,
among other things, recognized the right of the owner to
arrest the fugitive without process, and held that no State
law is constitutional which interferes with that right; that
the legislation of Congress, upon the constitutional provision, as the supreme law of the land, excludes all State
legislation upon the same subject; and that no State can
pass any law or regulation to superadd to, control, qualify,
or impede, a remedy enacted by Congress for the delivery of
fugitive slaves, &c.
Toward the close of his opinion, Mr. Justice Wayne said:
"Not a point has been decided in the cause now before this
court which has not been ruled in the courts of Massachusetts, New York, and Pennsylvania, and in other State
courts. Judges have differed as to some of them, but the
courts of the States have announced all of them, with the
consideration and solemnities of judicial conclusion. In
22 
PERSONAL LIBERTY LAWS.
cases too, in which the decisions were appropriate, because
the points were raised by the record."
Three judges were of opinion that the States might legislate in aid of the constitutional provision; but others held
the power of Congress to be exclusive.
In the course of his opinion, Mr. Justice Story said:
"The slave is not to be discharged from service or labor in
consequence of any State law or regulation. Now certainly
without indulging in any nicety-of criticism upon words, it
may fairly and reasonably be said, that any State law or
State regulation which interrupts, limits, delays, or postpones, the rights of the owner to the immediate possession of
the slave, and the immediate command of his service and
labor, operates, pro tanto, as a discharge of the slave therefrom." And speaking of the act of 1793, he remarked:
"We hold the act to be clearly constitutional in all its
leading provisions, and, indeed, with the exception of that
part which confers authority upon State magistrates, to be
free from reasonable doubt and difficulty, upon the grounds
already stated. As to the authority so conferred upon State
magistrates, while a difference of opinion has existed, and
may still exist upon the point, in different States, whether
State magistrates are bound to act under it; none is entertained by this court, that State magistrates may, if they
choose, exercise that authority, unless prohibited by State
legislation."  The clause which I have italicised has futrnishled the foundation of some of our State legislation. How
far the foundation supports the superstructure we shall have
occasion to consider.
The case was decided at the January term, 1842. It
appears from the Life and Letters of Mr. Justice Story, that
he regarded this decision as "a triumph of freedom."
23 
PERSONAL LIBERTY LAWS.
In October, 1842, George Latimer was arrested in Boston
as a fugitive slave, by constable Stratton, at the request of
J. B. Gray, his master, a citizen of Virginia.  ie was
brought before Mr. Justice Story in order to procure a certificate for his return, and the case being adjourned, he was
placed in the custody of Mr. Coolidge, the keeper of the
Suffolk jail, who used the jail for the purpose of detaining
him. This use of the jail was objected to, and a writ of
personal replevin sued out, but the jailer refused to receive
the bond, or to discharge Latimer. A writ of habeas corpus
was then procured, but Chief Justice Shaw, finding that the
case was properly pending before the Judge of the circuit
court, remanded Latimer to the custody of Coolidge, as the
agent of Gray.  A public meeting was called, "to provide
additional safeguards for the protection of those claimed as
fugitives from other States, or as slaves." One of the resolutions declared that the clause of the Constitution, "is not
morally binding upon the American people, and should be
disregarded by all who fear God and love righteousness."
A Latimer journal was published, and resistance was urged
in strong terms.  A sermon was preached in Boston during
the pendency of the proceedings, and afterwards published
under the title, "The Covenant with Judas," of which the
"Law Reporter," for March, 1843, said: " It is supposed to
contain the very cream of the doctrine, that an oath to support the Constitution is not binding; and truly it does
contain, with much other sophistry, such argument  as has
yet been devised, in the pulpit, to undermine the moral sense
of the people, in the obligations of that oath."
It has not been uncommon, within the last few days, to
see in the newspapers statements, that some of the leaders of
the secessionists have repeatedly taken the oath to support
24 
PERSONAL LIBERTY LAWS.
the Constitution of the United States, which oath they
violate by their support of secession. If they should reply,
that they trace the doctrine that the oath has no binding
force to the teachings of a New England pulpit, what shall
we answer?
Along with the new lessons to be learned, and the new
adjustments which are perhaps to be made in our social and
political system, it is devoutly to be hoped that a small class
of New England clergymen will come to the understanding,
that they are not serving the Lord when they denounce the
constitution, weaken our reverence for law, afr encourage
resistance to this particular portion of it. The clause in
the constitution, and the laws enacted under it, are not
grievances which require to be redressed by revolution.
We have a very poor opinion of the piety of the Rev.
Doctors of Divinity at the south who are preaching secession so vigorously at the present time. Those at the
north who preach nullification, serve the same master.
Let me respectfully suggest to them that the judicial tribunals are much safer and better judges of constitutional
and legal rights and obligations than they can possibly be.
The case of Latimer was terminated by the purchase of
his freedom. I have adverted to a few, only, of the circumstances attending it, for the purpose of introducing
the act of 1843 upon this subject, a~ the leading legislation of the Commonwealth in opposition to the execution
of the law for the rendition of fugitives; the principle of
which has since that time been greatly expanded.
Acting upon the implication contained in Mr. Justice
Story's opinion, that State magistrates might be prohibited
by State legislation from exercising authority under the
act of 1793, the legislature in 1843 enacted, that no judge
4
25 
PERSONAL LIBERTY LAWS.
of any court of record, and no justice of the peace, should
take cognizance or grant a certificate, under the act of
1793, to any person who claims any other person as a
fugitive slave within the jurisdiction of this Commonwealth;
and that no sheriff, deputy-sheriff, coroner, constable, or
jailer, or other officer of the Commonwealth, should  arrest or detain any person, or aid in the arrest, or detention,
or imprisonment, in ally jail, &c., of any person, for the
reason that he was claimed as a fugitive slave. The punishment was a fine not exceeding $1,000 and imprisonment
not exceeding one year.                    -
In another letter I will show how this opposition was
enlarged into the act of 1855.
Cambridge, January 17, 1861.
26 
A     o
PERSONAL LIBERTY LAWS.
Personal Liberty Laws....No. 3.
We know that the Fugitive Slave Law of September 18,
1850, as might have been expected, gave a fresh impulse to
the anti-slavery feeling in Massachusetts.  Believing the law
to be constitutional, I have so said and so taught; but have
at the same time declared that it contained provisions which
ought not to have been there, and did not embrace one which
it ought to have' contained, to wit, a provision for-a trial by
jury in the place from which the alleged fugitive was supposed to have escaped. This would have assimilated it, so
far as the difference of the cases admitted, to the provisions
regarding fugitives from justice, to which, under the constitutional provision, it bears a strong analogy.   Being
constitutional, it is the law of the land; and those interested should be permitted to carry it into execution, by
the aid of the authorities of the United States, without
unlawful let or hindrance. In the constitutional convention
in 1853, a reference having been made to this subject in a
debate upon the judiciary, I expressed a hope that the
people of Massachusetts would not place themselves in conflict with the authorities of the Union in regard to it. But
in respect to personal aid, as a private citizen, I have to say
that when the marshal requires me to help him chase a
fugitive, he will receive my personal reply, upon my personal responsibility. The law is unnecessarily offensive,
and I would not have voted for it, "come what, come
might." 
PERSONAL LIBERTY LAWS.
In 1851, a committee of the Senate, upon so much of the
governor's address as related to slavery, made an elaborate
report, accompanied by resolves and a bill "further to
protect personal liberty," which contains the germ, pretty
well developed, too, of the act afterward passed in 1855.
It has been said, that "in approaching the consideration of
these laws, we are to view them as enacted solely for the
protection of personal freedom from unlawful restraint;
and not, as seems by objectors to be taken for granted, as
intended to impair or embarrass the exercise of the rights
of slave-masters. And they are to be tested as designed for
that end, and that only'.;"
But if we find, on examination of their an'tecedents and
accompaniments, that the latter intent is perfectly obvious;
amd if we perceive, on inspection of the acts themselves,
that their language is perfectly consistent with the unlawful
intent in which tlhey appear to have had their origin, then
they are to be construed according to their obvious meaning,
as shown by the language used, and the intent which
dictated it. I extract, therefoire, a few short paragraphs
from the report, to show that the design of the proposed
legislation in 1851 was the protection of the fugitive slave,
and not of the free citizen of the Commonwealth.
"Your committee cannot resist the conclusion that this
law, (the act of 1850,) in its nature and design, is, in
general, plainly hostile to the law of God, and to the design
of all just human law.   We  regard  the fugitive slave
law, therefore, as morally-not legally, but morally-invalid
and void; and though binding on the conduct, no more
binding on the conscience of any man than a law would
be which should command the people to enslave all thle tall
men or all the short men, and deliver them up on claim,
28 
PERSONAL LIBERTY LAWS.
to be held in bondage forever; for the committee can see
no moral difference between enslaving a white man and a
black one, or a fugitive and one always free." * * *
" But the committee regard the fugitive slave law not
only as unconstitutional in general, and with regard to its
design, but specially, as compared with the Constitution
itself."  (And then follow specifications.)
"Considering this law as unjust in its nature, wrong in
its principle, hostile to the design of all just human laws,
deeming it in the highest degree unconstitutional, in general
and in detail, we do not hesitate to declare that we consider
it an infamous and wicked statute, a law not fit to be made
and not fit to be kept."  *  *  * 
"Yet it is a law of the land not officially declared unconstitutional.  Unconstitutional, as we believe it, inhuman
and wicked, as it unquestionably is, it is still a law, and
forcible resistance to it a legal misdemeanor. Its results
are most disastrous."  *  *  *
"The slave-hunlter profanes the soil of Massachusetts,
seeking whom hlie may devour. His presence spreads terror
among the colored people of our State. He is a hawk among
doves —a wolf, a hyena, among lambs."                 *    *
" We confess we deem it no less a crime against nature
and humanity to enslave a fugitive than to steal a free man.
To our judgment, the illegal kidnapper on the coast of
Africa, and the legal man-hunter in Boston belong to the
same class of felons. They differ, however, specifically, and
and we think the native species far worse than the foreign
felon, whom all Christian governments, and our own among
the number, have denounced as a pirate."        *          *
"The committee have made careful inquiries as to what
remedies for the present evils are in the power of the legis
29 
PERSONAL LIBERTY LAWS.
lature of Massachusetts, and what means we have for pro tectintg the rights of our citizens against invasion by persons
acting under the authority of the fugitive slave law." And
they recommend the passage of the resolves and the bill
reported by them.
Now two remarks are quite obvious from the report, of
which the above are specimens, and from the bill which
accompanied it.  The first is, that  these unmeasurable
denunciations of the " man-hunter" are leveled against
persons who come here to claim, by process of law, accord ing to the laws of the State from which they come and
according to the Constitution and laws of the United States,
persons who have fled from their service; and not against
persons who under pretence of such claim, or any other
pretence, attempt to kidnap free citizens of this State.  If
we may judge from some of the language used, the com mittee would seem to have deemed the latter the lesser
offence.  They think "the legal man-hunter" " far worse
than the foreign felon." The second is, that it is not within
the ingenuity of man to deny, upon any plausible grounds,
that the report, resolves, and bill, were all intended to be in
direct antagonlisml to the legislation of Congress.
The bill was defeated in the Senate by a majority of three.
The case of Thomas Sims occurred in April, while the
legislature was in session. If I hlad time and space, anl
attempt to count the numerous motions, writs, warrants,
and other legal proceedings, which were resorted to in order
to prevent his rendition, with a statement of the nature and
operation of them, might be more amusing and instructive at
this day, thani the proceedings themselves'were at the time
. when they occurred. Any one curious in su'ch matters can
consult the "Law Reporter" for May, 1851.  There were
30
i 
PERSONAL LIBERTY LAWS.
four or five applications for the favorite remedy of habeas
corpus. Sims came into the State about a month before his
arrest, escaping from Georgia by secreting himself on board
a vessel, and escaping from the vessel, in the harbor, to the
shore. It was not doubted that he was a fugitive slave; and
it may serve to show what the declaimers respecting personal
liberty mean when they talk about protecting the free citizens of the State from kidnappers, that this case of Sims
was paraded ill the Constitutional Convention, as one in
which a "free citizen of Massachusetts" had been carried
into slavery; and that the refusal of the State judges, on
the return of the habeas corpus, to free him from the custody
of the marshal, was urged as a reason why the tenure of the
judicial office should be changed.  "Now,  sir," said the
advocate for protection to the "free citizens," " I would
like to hlave judges elected by the people that they may not
be so independent of them, so that if anoLher case upon the
writ of habeas corpus, similar to the one to which I have
referred, should come up before them, they will be dependent enough to listen favorably to argument, and -be able to
give equal protection to all, or better reasons for refusing it
than were rendered in the case of Sims." The reason that
Sims was held on legal process issued under the authority
of the United States, and that the State judges could not
liberate him without violating their oaths, was not a sufficient
reason with this legislator; and there are others like him.
If the judges will not discharge the " free citizens," they
say, let us compel the courts to grant them a trial by a jury,
who may "listen favorably to argument."  This-was one of
the objects of the bill reported in 1851, and reproduced,
with variations, in 1855.
31
I 
PERSONAL LIBERTY LAWS.
A change in the political administration of the State in
1853 and 1854, gave comparative rest to the subject in the
legislature.  But in 1854 Anthony Burns was claimed as a
fugitive from Virginia. Most of us have a general recollection, at least, of what happened at that time, and what
happened afterwards, as some of the results, to the commissioner who sat in that case.   His offence was, that,
acting according to his convictions of his duty, lie gave a
certificate for the rendition of the peculiar " free citizen,"
Anthony Burns, and the friends of the peculiar free
citizens bestirred themselves with great energy.
At the next session of the legislature petitions were presented from more than eight thousand persons on this subject. How many of them were women, and how many
minors, is not very material. As one of the means of determining the uses and purposes of the legislation of 1855, let
us read one of these petitions. They were nearly all in the
same words, viz:
The undersigned citizens of          respectfully ask you
to declare that any person who engages in arresting, holdimg or returning a fugitive slave-either as United States
judge, commissioner, marshal, deputy-marshlal, or in any
other capacity whatever, or even as a private citizen-shall
be forever incapable of holding any office of trust, honor
or emolument, whether such office be State, county, city or
town office, unless relieved from such merited disgrace
by pardon."
"And we also ask you to pass a law which shall punish
with fine and imprisonment, any State, county, city or town
officer, who shall, during his continuance in such office, aid,
in any way, in arresting, holding or returning, a fugitive
slave-whether such acts are apparently done in virtue of his
32 
PERSONAL LIBERTY LAWS.
ofce or otherwise.  And also to punish, by fine and imprisonment, any claimant of an alleged slave, or any aider or
abettor of such claimant who shall attempt to remove such
alleged slave from this State, without his first having had
ajury trial on the question of his slavery or freedom."
I have italicised some parts, which serve to show the purposes of the petitioners, or rather of the managing spirits
who prepared the petitions for circulation, in relation to
certain matters upon which there is now an attempt to put
a very different gloss.
The joint standing committee on Federal Relations, to
whom these petitions were referred, along with divers other
matters connected with the subject, reported a bill, " To protect the Rights and Liberties of the People of the Commonwealth of Massachusetts," which, after being amended, was
passed by both houses. The Attorney-General advised Governor Gardner that some of its provisions were unconstitutional. The Governor vetoed it, and then it was enacted
by the affirmative vote of two-thirds in each house.
In my next letter, I propose to offer some further suggestions and evidence respecting the true construction of this
act, to be followed by an examination of the legislation of
1859 respecting the writ of habeas corpus.
Cambridge, January 22, 1861.;
5,
33
I
*   ea
~  ~ 
PERSONAL LIBERTY LAWS.
Personal Liberty Laws....No. 4.
I endeavored in my last, by adverting to some of the
prominent points, to sketch briefly the development of the
State legislation, in its hostility to slavery, from the act of
1843; which merely withheld the aid of the State in the
enforcement of the fugitive slave law, by a denial of the
services of State officers, who, according to its terms, might
act officially under it, and by the denial of the use of State
jails; to the act of 1855, which placed the State in direct
antagonism to the enforcement of the law by the authorities
ot the United States.
Any one who will read the act of 1855, in the light of
the facts which have been stated, showing its origin, cannot
doubt that the danger to be provided for was that of the
surrender of fugitive slaves, and not of the kidnapping of
those who were really free citizens of the Commonwealth;
and that the design of it was, among other things, to force
a jury trial, if possible, in all cases of the arrest of futgitives, by the exercise of a "co-ordinate jurisdiction," in
conflict with the jurisdiction of the United States, which
first had possession of the case, and which alone could rightfully dispose of it on its merits; to subject all persons to
severe punishment who should remove, or aid in removing,
any person not a fugitive slave, under a claim that hle was
one, or who should aid in removing a fugitive under a claim
of service by a party to whom it was not due, however
honestly they might have acted; to prohibit all persons
holding any office in the State from rendering any aid in
34
.
I -
.II 
PERSONAL LIBERTY LAWS.
the removal of a fugitive, not only in their official capacities,
but as citizens; and to prevent, as far as possible, the
volunteer militia from acting to preserve the peace by the
prevention of all attempt at a rescue.
The petitions may serve, among other things, to show
that the jury trial, for which the act provides, was not
designed merely to try the lawfulness of the detention, ill a
case where the master had made all arrest withlout process,
but was expressly intended to try, in all cases, the question
of his slavery or freedom.
They may serve also as evidence, that the word'pretence," in the seventh section of the act, (section 62 of
chapter 144 General Statutes,) which ill some connections
may undoubtedly mean false pretext, is in this legislation
used to signify " assumption," or " claim," which are legitimate meanings of the word " pretence."  This is further
shown by the fact that the greater portion of the section is
taken verbatim from the 5th section of the bill reported in
1851; and that in that bill the word "pretence" is found
in two other sections, where it evidently means, show,
appearance, assumption or claim.
The argument that in order to subject any person to the
penalty of that section, (supposing it to be constitutional,)
it must appear that there was an unlawful intent to remove
a party known not to be a fugitive from service or labor, is
not, I think, to be sustained. No other criminal intent
seems to be necessary, -in order to constitute the offence,
than the intent to do the act which is to be punished; that
is, the intent to remove or assist in removing as a person
" held to service or labor," one whose service or labor was
not due "to the party making the claim."  If service or
labor was due from the person removed, but not due to the
35 
PERSONAL LIBERTY LAWS.
party making the claim, then the person removing or assisting in removing, would thereby subject himself to punishment.  It is saying in effect, if you will act in such matters,
you shall act at the peril of this extreme punishment, if
you make even a mistake.
There are cases where a statute imposes a penalty upon a
person who knowingly does the thing forbidden. And there
are others where there is an implication, that to constitute a
crime the act must be done with a guilty knowledge. But
it is respectfully submitted that this case is not of that
class; and no lawyer would venture to assure a client,
indicted under this section, that the jury, to whom the same
legislature of 1855 designed to give some authority to
decide, at their discretion, both the law and the fact, would
so construe it as to require evidence of knowledge, or be
content with such an opinion of the judge. If convicted
by the jury, the court could not save the party convicted by
any judicial finding that there was no unlawful intent, there
being an intent to remove the person as a fugitive.
I am not disposed to deny that there must be an unlawful
intent, in order to constitute an offence under this section
of the statute. But what is that unlawful intent? It is an
intent to do the thing which the section was designed to
prevent; and most clearly it was designed to prevent the
removal of a person who is not the slave of the claimant, on
a claim that he is such. It is not essential, therefore, that
the party removing, or assisting, should have knowledge
that the person removed or attempted to be removed was
not a slave, or was not the slave of the claimant.  He must
not act in the removal unless he has knowledge that he is
such slave. If he does, he incurs the penalty, because it is
not said, or implied, that he shall act with knowledge that
36 
PERSONAL LIBERTY LAWS.
the claim is false. It is sufficient that he acts wilfully in
depriving a party of his liberty onil a claim which is not in
fact well founded. The mistake in the argument that there
must be knowledge that the person removed was not a slave,
because an unlawful intent is necessary to constitute a
crime, is not so much a mistake of the principle of law, as a
mistake in the application of the principle to this class of
cases. Unquestionably there must be an intent to remove
the person as one from whom service and labor is due, and
this is the unlawful intent, if it is not due.  If the removal
were by receiving and carrying him out of the State as a
passenger by rail car, steam-boat, or stage coach, or in a
private carriage, without knowledge that hlie was claimed
and removed as a person from whom service or labor was
due, then no penalty would be incurred.
We do not need the aid of the petitions to assure us that
section 15 of the act of 1855, so far as it relates to civil
officers, (which is section 63, of chapter 144, General Statutes,) was designed not merely to prohibit any civil officer
within the State from acting in his official capacity in the
arrest, imprisonment, detention, or return, of a fugitive, but
that it was designed, in the language of the petition, to
prohibit any such officer from acting " even as a private
citizen." The general terms of the enactment cover other
than official acts, and the section cannot be construed otherwise without rejecting material portions of it. In fact it
was useless as a prohibition of official acts, for the act of
1843 prohibited the officers of the State from acting under
the fugitive slave law of 1793, and the first section of the
act of 1855 applied the provisions of the act of 1843 to the
fugitive slave law of 1850, although that law did not profess
to give any State officer power to act in the arrest or return 
PERSONAL LIBERTY LAWS.
of a fugitive.  Where, then, was the necessity of a further
prohibition of official acts? What could the officers of the
State do, officially, uinder any State law, in the arrest,
detention, or return? But this is not all which shows that
their aid as private citizens was to be prohibited. The section, after enumerating the sheriffs, deputy-sheriffs, jailers,
coroners, constables, and police officers, (being careful to
include the coroner, who might in certain contingencies act
as sheriff,) and thus, by special designation, prohibiting
officers who could act officially in arrests and imprisonments;
proceeds to provide equally for the punishment by like fine
and imprisonment, of any "other officer of this Commonwealth;"  or any "district, county, city or town officer,"
who shall arrest, imprison, detain, or return, or who shall
"haid in arresting, imprisoning, detaining, or returning, any
person, for the reason that he is claimed or adjudged to be a
fugitive," &c. What official acts can the state treasurer
or auditor, the county treasurer or register of deeds, tlie
town clerk or assessors, or collectors of taxes, (to say nothing of fence viewers, surveyors of highways, and of lumber,
and measurers of wood and bark,) perform in the arrest or
rendition of fugitive slaves? But they are clearly within
this part of the statute, and it is nugatory unless it embraces
them with others, who, like them, cannot act officially in
such cases. It is quite evident from all the circumstances
attending the passage of this act, that this provision in relation to officers was based upon an assumption, that the
State may forbid all its officers to interfere, by way of aid,
"even as private citizens';" which is certainly a large amplification of Mr. Justice Story's remark, implying that a State
might prohibit its officers from executing the powers which
38 
PERSONAL LIBERTY LAWS.
the act of 1793 intended to confer upon a very limited number of them.
So in relation to the provision for punishing any officer or
member of the volunteer militia who arrests, or aids in
arresting, &c. What act can such officer or member do,
officially, in arresting or imprisoning a fugitive? But the
next section, (section 64, General Statutes,) providing that
the volunteer militia shall not act in any manner, &c., was
intended as a prohibition of the performance of military
service, and thus shows that the provisions of the preceding
section were intended to restrain aid as private citizens.
Furthermore; that aid as private citizens is all the aid that
is now prohibited under the section in relation to officers
and members of the volunteer militia, is evident from the
fact that section 65 of chapter 144, General Statutes, passed
originally in 1858, exempts from the prohibitions of the
statute all acts of military obedience and subordination.
What acts, having any connection with the return of fugitive slaves, can the volunteer militia perform, as militia,
except acts of military obedience?  They may render  aid
with uniforms on, and gulls in their hands, perhaps, but if
they are not acting under orders their acts will not be the
acts of the militia.
I might urge that certain sections of the act of 1855,
which were repealed in 1858, serve to show the scope and
intention of those which remain; but, waiving that argument, I will call one more witness, to wit: the Report of the
joint committee which introduced the bill in 1855. Tile
committee must be supposed to know what they meant in
framing the bill; and the two Hiouses, with  the printed
report before them, may well be presumed, when they
39 
PERSONAL LIBERTY LAWS.
adopted the language of the committee, to have adopted the
sense in which the committee used it.
The report exhibits an elaborate attempt, by the citation
of divers provisions of the Constitutions of the State and
United States, and by the selection of paragraphs here and
there from the opinions in Pri,gg vs. Pennsylvania, to
give to the bill reported, the semblance of a constitutional enactment; at the same time that it shows a very
determined purpose to manufacture a law which should nullify the execution of the fugitive slave law in Massachusetts.
The committee say, " Massachusetts stands second to no
State in this Union in loyalty to the provisions of the Constitution of the United States."  And again, "Massachusetts
disclaims all intention of obstructing or evading any constitutional act of Congress."  Following the first of the above
extracts, however, we find: " But when she is asked to violate the fundamental principles of that Constitution as well
as her own, she unhesitatingly throws herself back onil her
rights as an independent State. She cannot forget that she
had an independent existence and a Constitution before the
Union was formed. Her Constitution secured to every one
of her citizens the right of trial by jury, and the privilege
and benefit of the writ of habeas corpus, whenever their
liberty was at stake. These essential elements of independence she has never bartered away. She will not suffer them
to be, wrested from her by any power upon earth." Farther
on they say:   " Your  committee,  therefore, are  fully
of the opinion that every person living peaceably within the
limits of the State, and conforming to the laws of the State;
is entitled to the protection of the State, and that the State
is bound by her Constitution to give to all her subjects, whenever their liberty is imperilled, the benefit of the habeas
40 
PERSONAL LIBERTY LAWS.
corpus and the trial by jury. And referring to the bill, they
say among other things of certain sections, that they " are
for securing the right of trial by jury, as well as of the writs
of habeas corpus and of personal replevin."  Again, "the
seventh and eighth sections," (comprised in section 62,
chapter 144,) "are intended to punish by fine and imprisonment all those who shall be instrumental in transmuting a
freeman into a slave, whether by sending into slavery any
man who has always been free, or by returning one who has
escaped, either to a person other than the slave master from
whom hle escaped, or to any one to whom his service or labor
is not due," &c.  Again, " The ninth, thirteenth and fourteentlth sections are for the purpose of prohibiting Mgassachw
setts officials of every kindfrom acting at all for the return
of fugitive slaves."
Who will longer doubt the design? Who will deny that
the language of the enactment is adapted to its accomplisllment?
The examination of the legislation of 1859, in relation to
the writ of habeas corpus, must form part of another letter.
Cambridge, January 24, 1861.
6
41 
PERSONAL LIBERTY LAWS.
Personal Liberty Laws....No. 5.
I proceed to the consideration of the legislation of 1859,
in relation to the writ of habeas corpus. Prior to that time,
when the party detained, and whose discharge was sought,
was in the custody of the marshal, deputy marshal, or other
like officers of the United States, the writ of habeas corpus
was not issued to the sheriff, commanding him to take and
bring ill the body, but was issued to the officer holding the
party in custody, commanding  him to bring in his prisoner
anid to show the cause of his detention. The act of December 21, 1859, changed the law in relation to that class of
cases, by authorizing or requiring the judge, or court, to
issue a writ of habeas corpus, commanding the sheriff to
take and bring in the body, and to summon  the officer
holding the party, to show cause.
In a late "Reading upon the Personal Liberty Laws," by
a very distinguished jurist, it is assumed that the writ call
no longer be directed to the marshal by reason of this
change; and that this shows a mistake in the " Address to
the citizens of Massachusetts" urging the repeal of the
unconstitutional provisions. I am not disposed to argue
that.  We will suppose such to be the result.  The change
made by the act, then, is one by which the marshal can no
longer be required to bring in the body of any person held
by him, but the sheriff is required to take and bring in the
person held by the marshal. Now it hardly needs an argumelt to show that it must have been intended that the sheriff
.0
42 
PERSONAL LIBERTY LAWS.
should do what he is thus commanded to do; that is to take
the party out of the custody of the marshlal into his own
custody.  No other change is made in this respect.  All the
requisition upon the marshal is to show cause why he claims
to detain the prisoner. The provision applies to all cases
where the United States officer has the custody.
But it is quite clear that the sheriff has no right to do
what he is thus commanded to do, if the process in the /
hands of the marshal is lawful. This is now admitted, and
must be admitted, because the Constitution and laws of the
United States authorize and require the marshal to hold his
prisoner, and that authority being superior, the legislature
had no right to authorize the sheriff to do what lie is under,
this change required to do. And this not merely because
the maslial happened to have priority of custody, for it was
supposed to be known, when the writ was applied for, that
the marshal had the party in custody.  The command is to
take the party, nlotwithstanlding that fact.  The law must;
have been designedly altered for the very purpose of requiring the sheriff to violate that custody by taking the party.
Is not the law, then, in its design, and in its effect if executed, in conflict with the law under which the marshal is
required at the same time to retain the custody?  What X
prevents its being executed according to its letter except
this conflict?  The conflict is not accidental, but of purpose.
It is not one that exists in some unanticipated case.  The
antagonism presents itself in all cases to which the change
was designed to apply, or can apply. The command is void,
the sheriff is not bound to obey it, and cannot lawfully obey
it, because of this antagonism, and this seems, beyond all
peradventure, to prove the unconstitutionality of the
change.
43 
PERSONAL LIBERTY LAWS.
It will not be an answer to all this, to say that if the process
under which the marshal holds his prisoner was not regularly issued, the sheriff may lawfully take the prisoner from
the marshal, by virtue of his writ.   Who  shall judge
whether the marshal's process is regular or not?  Certainly
not the sheriff. Hle cannot require the marshal to show his
process, and if he could, has no power to try, or sit in judgment upon the question, whether it is or is not valid. That
is the business of the court.
I should not have supposed it necessary to press this
argument with such particularity had it not been argued
that the law is constitutional, because if the party is in the
lawful custody of the marshal, the sheriff will not attempt
to take him, but will merely obey the other command of the
writ, and summon the marshal to show cause. But why
shall not the sheriff take the custody?  Certainly not,
because the statute does not purport to authorize it. Certainly not, because the writ does not in terms require it.
The command to take the custody is quite as imperative as
the command to summon the marshal. In fact, the latter
command may be said to be only an incident to the taking
of the custody by the sheriff, for otherwise the writ will lose
its distinctive character, and will not be a writ of habeas
corpus, but only a writ of summons to the marshal to show
cause.  It does not summon  the marshal to bring in the
body.  Such are not its terms; the sheriff cannot require
him to do so, and the marshal will not be in contempt if he
does not bring his prisoner. What kind of a habeas corpus
is that? Suppose, if you please, that, according to the decisions of the supreme court of the United States, when the
writ from the state court commands the marshal to produce
his prisoner, he is not bound to do so if the party is held
44 
PERSONAL LIBERTY LAWS.
under lawful process, but is only bound to show cause.
The marshal in nleglecting to obey the requirement of the
writ when directed to him, would do so under the peril of
being in contempt, and of being punished, therefor, if it was
found that his process was not regular.  Whereas, under
the present state of the statutes, if it is found that the prisoner is unlawfully detained, the court cannot set him free,
because he is not there; and nobody is to blame for this
result!
No person can have greater reason than I have to b(s
assured of the folly and incompetency of the majority of the
Legislature of 1859; but I freely acquit them of the superlative stupidity of intending to produce the change which
they made onl this subject, whether the old writ, directed to
the marshal, may or may not still be issued.  They escape
the imputation of this stupidity, by the fact that they
intended that the sheriff should obey the command and take
the prisoner; and if they had had a constitutional right to
make such a clhange, it would be the duty of the sheriff to
serve the writ accordingly.
I have been informed, that although it may have been one
of the motives which led to this change of the habeas corpus,
to take a fugitive slave out of the custody of the marshal,
and then admit him to bail, and to try all questions by a
jury under the State law, it was not the motive or the exigency which led immediately to this legislation of 1859.  It
appears that the committee on the judiciary in the House
reported a bill providing, that every person arrested or
imprisoned by reason of the seventh section of the 98th
chapter of the acts of Congress, approved 8th August, 1846,
might, as of right, prosecute a habeas corpus, &c.  This was
amended so as to include any person arrested or imprisoned
45 
PERSONAL LIBERTY LAWS.
under any act, resolve, or vote, of Congress, or either House
thereof, and was thus passed and sent to the Senate, where
the bill was amended by striking out the whole, and inserting a provision making this change, so that ill case any party
was held by the marshal, deputy marshal, or other like
officer of the United States, the writ of habeas corpus should
issue, commanding the sheriff to take him.  In this form it
was passed in the Senate and sent to the House, referred to
the judiciary committee, and Increase Sumner of Great
Barrington, from that committee, reported that "it ought
to pass," which it did. As the member from Great Barrington has united in the Address in favor of the repeal of
the laws which tend to interfere with the custody of the
marshal, it is to be presumed that he has seen the error of
his ways in this particular, and it is to be hoped that others
will do likewise.
Now this change covered precisely the case of the figitive
slave, in the custody of the marshal, as well as if that was
its whole object.  But admit that another, and the main
object of the change, was to take a recusant witness, who
should be arrested on a capias issued by a United States
court, or by Congress, or either House of Congress, out of
the custody of the marshal or other officer who holds him
under the process. If that process is lawful, this is just as
much an unconstitutional exercise of power as the othernot concurrent, not co-ordinate, but brought into operation
by the exercise, in the first instance, of the authority of the
United States in making the arrest; and intended to be
antagonistic to that arrest by and under the power of the
United States. It will not make the legislation any the
more constitutional, that it had two unconstitutional purposes in view instead of one. It is just as nugatory for the
46 
PERSONAL LIBERTY LAWS.
one purpose as the other; for if the right of the United
States court, or of either House of Congress, to issue the
capias, is to be questioned, the sheriff cannot determine that
question, and the State has not the right to violate the
custody of the marshal, under his process, until the'question
is determined, and determined against the lawfulness of the
arrest.
It is one of the evils of this anti-slavery crusade against
the Constitution and laws of the United States, that by
means of the " accursed eloquence," as it has justly been
denominated, of the declaimers about the rights of " free
citizens," meaning thereby the peculiar free citizens, we are,
in danger of being led to regard the government of the
United States, not as our government, one of which we are
citizens and to which, as far as its powers extend, we owe
a duty equal to, or it may be said superior, to that which we
owe to our State government, for the reason that so far as
its powers extend it is the superior government; but, on the
contrary, we view it as a kind of foreign jurisdiction, to the
tribunals and organs of which we are not to trust, and
against which we are to erect bars of prohibition, by the~
interposition of antagonistic State authority.  It is by the
same process of reasoning respecting the tariff, that South
Carolina has regarded the goveriment of the Union in the
same light.  She is restive under one operation of the Constitution and laws of the Union. We are so under another.
And thus the State organizations, which have been regarded
as elements of stability and strength to a Republican Union,
have become elements of weakness and disaster.
I claim thus to have maintained all that I asserted in my
first letter respecting the unconstitutionality of the several
provisions of chapter 144, General Statutes, and something
47 
PERSONAL LIBERTY LAWS.
more. I have shown by incontrovertible proof, that the
express intent and purpose of the act of 1855 was to delay,
obstruct, and hinder, the execution of the fugitive slave law;
that it is well adapted to the end designed; and that it does
effect that object, if not by taking the fugitive from the
custody of the marshal and trying all questions by a jury,
by assuming so to order, and so to do. The act of 1859 is
of the same character.  And therein consists their unconstitutionality. If the provisions to which objection has been
made, do not operate, legally, as an entire nullification of
the fugitive slave law in this State, it is because they cannot
be executed by the judicial tribunals, on account of their
conflict with the laws of the United States. But the practical effect must be to prevent attempts to reclaim fugitive
slaves, because of the embarrassments and obstructions which
they purport to authorize, the penalties they denounce, and
the anticipation of forcible resistance and defeat, which is
encouraged in the forbidding, so far as is possible,  the
use of military force to prevent riot and bloodshed.
And now the question comes to us, as one of right and
conscience: Ought not these provisions to be repealed?
I have been the more earnest in this exposition of their
true character, because upon the action of the present legislature respecting this subject, may depend the question of
the final dissolution of the Union.
This practical nullification is a wrong done to the slave
States, excused, in some measure, as has been said, by the
repeated outrages in those States upon citizens of the free
States; but not therebyjuistificd. This wrong is principally
done to the border slave States, in which, comparatively,
few of these outrages have been committed.   The action of
these border States will determine the question whether the
48 
PERSONAL LIBERTY LAWS.
Union shall, or shall not, be dissolved. If they adhere to
the Union, the attempt at secession by the cotton States,
will, in all probability, be defeated, without ally marching of
armies, but by a reasonable attempt to execute the revenue
laws, and by other appliances of a peaceable character; and
they will be a wiser, and it is to be hoped, a better people.
But if the border slave States unite in secession, coercion
will be out of the question. The idea of a border warfare,
along the whole frontier, from the Atlantic to Kansas, and
the marching of invading armies from the North into the
South, to reduce the people to subjection, is not to be entertained, even if the result might be submission.   If the
Union cannot be preserved but by a war of extermination,
it is far better that it should be dissolved.
If we suppose that there is no danger that the border slave
States will be drawn into secession, we deceive ourselves. It
is true that the present industrial interests of the border
States will not be promoted by a dissolution; but there are
ambitious and reckless men there, particularly in Virginia,
who are urging secession, and who may yet force those
States into it, as like men have forced the cotton States into
that measure. The consequence of such a dissolution would
doubtless be the extinction of slavery in the border States
at no very distant day, by the flight of slaves to the North
and by their sale, in some haste, to the South, to prevent
such an exodus. But the flight would give us a population
which we do not desire, and would be the cause of quarrels
and wars which would be to the advantage of neither side.
We may suppose that in case of a dissolution drawing the
line between the slave and the free States, we shall be at a
safe distance from this border warfare. Will it be honest,
perhaps it may be asked, will it be assuredly safe, for us to
7
49 
PERSONAL LIBERTY LAWS.
stand out in a refusal to repeal these offensive, unconstitu tional laws, and leave the border free States to take their
chance of the consequences of a dissolution? Will Pennsyl vania be drawn to us by the cords of love if we thus expose
her?  Will Ohio, with all her free soil principles, thank us
for a course which tends to give her a hostile frontier along
her whole Southern border? I am assured that she has no
"personal liberty law," notwithstanding all that has been
said upon the subject. If she should be alienated, is the
middle State confederacy, which has been threatend, so
utterly impossible? In the event of a secession of the bor der slave States, would not the dread of a border warfare
between the free and slave States justify them in any com bination for their own protection, even if it were accom plished without much regard to the interests of any State
whiclh, by her persistent refusal to conform to her constitu tional obligations, had contributed to the danger? Doubt less New England could exist by herself; but her interests
will not be promoted by such separate nationality; and
moreover, Massachusetts is not all of New England.
We may believe that such middle State confederacy can not be organized, on account of a diversity of commercial
and political interests; and I admit that it seems to be some what improbable, though not impossible. But there is
another aspect in which the matter presents itself, which is
open to no such objections.  While I admit the constitu tionlal right of the slave States to have a fair Fugitive Slave
Law fairly executed, I shall endeavor in remaining letters
to show that they have no right to have slavery introduced
into the Territories; that the Constitution does not carry it
there-the opinion of the six political judges of the supreme
court to the contrary notwithstanding. Congress, however,
50 
PERSONAL LIBERTY LAWS.
may allow its introduction. And if Pennsylvania and other
border free States shall believe that Massachusetts is stolidly
reposing "on her rights as an independent State," on which
she so "unhesitatingly threw herself back " in 1855, and by
her persistent refusal to repeal her obnoxious laws is interposing obstacles to an adjustment of existing difficulties;
what shall hinder them from agreeing to the Crittenden-or,
the Breckinridge-compromise, with strength enough in its
'support to overrule the opposition of Massachusetts and any
other New England State that concurs in her policy.  Such
a compromise we know already receives large support ill
Pennsylvania.
And now let us, each and all, submit this question to our
careful and dispassionate consideration. If we shall alienate other States now in sympathy with us, and thereby
a compromise is made which permits the introduction of
slavery into the Territories, present and to be acquired, will
the retention of the Personal Liberty laws upon our statute
book furnish to the country or to humanity a satisfactory
equivalent?
Cambridge, January 28, 1861.
51 
I
t 
SLAVERY IN THE TERRITORIES.
No. 1.
The question respecting the admission of slavery into the
Territories, is one upon which there is at present an "irrepressible conflict" of opinion, by reason of the belief which
prevails, very extensively, among the people of the Southern
States, that the Constitution secures to them the legal right
to take their slaves into a territory, and that any act of Congress restricting the right to hold slaves in a territory is
unconstitutional and void. And they derive their strong confidence in this belief from the opinions of a majority of the
judges of the supreme court of the United States ill the case
of Dred Scott.
The idea that the Constitution secured the introduction of
slavery into all the territories, seems to have had its origin in
the fertile brain of Mr. Calhoun, and to have made its first
appearance in 1847 or 1848. Prior to that time, so far as I
am aware, it had not entered into the evil imagination of
any one's heart to conceive such an absurdity.
If the Constitution gives such a right, the provision or
provisions which confer it were clearly applicable to the territory north-west of the river Ohio, which was a territory of
the United States on the adoption of the Constitution, and
thus it must have abrogated thefamous ordinance of 1787,
and have rendered nugatory any law of Congress restricting
slavery in that territory; and the applications of a portion
of the people there for permission to introduce it, were alto 
54    SLAVERY IN THE TERRITORIES.
gether unnecessary, and the refusals of Congress a humbug.
For if the Constitution in one part of it carries slavery into
the territories, the clause of the Constitution authorizing
Congress to "make all needful rules and regulations respecting the territory, or other property of the United States,"
must be construed to be in harmony with such part, and
thus not to limit or control it. Certainly it could not be
"needfill," or proper, to make a rule or regulation which
would be in conflict with any right conferred by the Constitution. It would be preposterous to suppose that the Coinstitution, by a grant of power to make needful regulations,
conferred upon Congress a right to destroy or nullify a portion of the Constitution itself.
So, again, if the Constitution gives such a constitutional
right, as a legal right, which can be asserted and vindicated
by the courts of the United States, all the agitation which
convulsed the country respecting the admission of Missouri,
the adoption of the Missouri compromise line, the acquiescence in it for so long a period, and the struggle respecting
its formal repeal-can only be accounted for upon the supposition that the eminent statesmen of that period were but
very sorry constitutional lawyers; for surely they had in
1820, occasion to subject the Constitution to a most rigorous
examination in this respect.
The very fact that of all the great statesmen who framed
the Constitution,-those who earnestly advocated it or as
earnestly opposed it, and those who for half a century afterward administered the government in its legislative, executive and judicial departments,-no one had made the discovery of an interpretation of the Constitution which would put
an end to all agitation respecting the extension of slavery;
and which must settle also the right of the slave-holder to 
SLAVERY IN THE TERRITORIES.
take his slave into a free State and hold him there; would
seem to furnish a conclusive argument against such a construction. I ought to say, however, that it is quite possible
that the supreme court have got such an admonition upon the
subject that they will not venture upon the experiment of
deciding that the Constitution secures a right to the slaveholder to introduce slavery into a State where it is prohlibited; but if we are saved from such a decision, it may perhaps be owing to the election of Mr. Lincoln and certain
subsequent events. There is quite as good, and perhaps a
better, semblance of reasoning for such an opinion than
there is for a decision that an act of Congress prohibiting
slavery in a territory is unconstitutional; and a half a
century of uniform construction does not settle much in
these days.
In the department of political and legal theorizing, Mr.
Calhoun was a man of great enterprise; and the explorations of half a century, for the purpose of ascertaining the
meaning and true construction of the great charter of
American Union and government; did not deter him from
claiming to have made new discoveries, which would subserve
the purposes of his ambition. Many years since I heard
that he said, when in college, that he would be President of
the United States, or he would slake thie government to its
foundations. Whether he said it or not, hlie acted in strict
accordance with the supposition of such an intention.
Failing to accomplish his great purpose through the tariff
and internal improvements, and failing to unite the South
on nullification, so as thereby, if need should be, to organize
a Southern Confederacy, he turned his attention to slavery,
as a subject upon which, through Southern feeling, a union
of the South might be accomplished, and the North be ren
55 
56     SLAVERY IN THE TERRITORIES.
dered subservient; or the two sections be brought into
collision, with a Southern Confederacy as the ultimate result.
Such was the opinion of Mr. Benton, who had ample means
for the formation of a sound judgment; and well known
facts seem to warrant the conclusion.  Mr. Calhoun did not
live long enough to see the fruition of his hopes; but lihe
sowed the dragon's teeth, and the seed, stimulated by the
super-phosphlates of six judges of the supreme court, and of
Mr. Secretary Floyd, has at last sprung up in hosts of armed
men, swearing allegiance to secession, and expecting, in the
strength of their Almighty King Cotton, to go on conquering
and to conquer.
Mr. Calhoun's first attempt to give to slavery a secure
lodgment in the Territories seems to have come in the shape
of a proposed Congressional enactment, extending the Constitution and certain acts of Congress over the Territories
of California, New Mexico, and Utah, over which it was
proposed to erect Territorial governments. Defeated in
this, and evidently this was not enough, (because such an
extension depended upon the will of Congress, which could
not by any direct act of legislation extend the Constitution
to places where it did not otherwise apply, and because the
legislation of Congress asserting such a power of extension,
could not be obtained,) we find very soon an assertion of the
dogma, that the Constitution extended to the Territories of
its own force and vigor, without any extension act, and that
it carried with it protection to slavery there, because the
owner of property has a right to go there with his property,
and slaves are property. Mir. Webster met the doctrine at
the threshold, and controverted it by conclusive arguments.
He said: "The Constitution is extended over the United
States, and nothing else. It cannot be extended over any 
SLAVERY IN THE TERRITORtES.
thing except the old States and the new States, which shall
come in hereafter, when they do come in." Mr. Clay also
denied it, saying: " Now, really, I must say that the idea
that eo instanti upon the consummation of the treaty, the
Constitution of the United States spread itself over the
acquired territory, and carried with it the institution of
slavery, is so irreconcilable with any comprehension or any
reason which I possess, that I hardly know how to meet it."
But he did meet it, and with a force of argument which
might well convince any one but a predetermined disbeliever.
Mr. Bentonl, and other distinguished politicians and jurists,
utterly repudiated it.  Something more was necessary in
order to secure the object; and the next move seems to have
been to make the supreme court a party to the measure,
and by obtaininig what appeared to be a judicial decision of
the question, to quiet or overrule opposition to it.
It might perhaps be supposed that judges in the slaveholding States, surrounded by the excitement attending
upon the subject, sympathizing with the advocates of the
new doctrine, and having to some extent a community of
interest with them, should, unless restrained by high judicial
integrity and firmness, " listen favorably to argument."
What influences induced a judge residing in a free State to
make shipwreck of his judicial reputation, by uniting in
such an attempt to control the legislation of Congress, is not
so apparent. It is sufficient for our present purposes, that
a majority of the judges appear to have been seduced into
the belief that they had only to express their views upon the
subject matter, in the shape and form of a judicial decision,
and the controversy would be settled. If it had been a
legal question, it would not have been necessary to settle it
for the purpose of determining the whole case, so far as
8
57 
58      SLAVERY IN THE TERRITORIES.
Dred Scott and his family were concerned. But Mr. Justice
Wayne told the story, ill a single sentence of his opinion,
when he said: " The case involves private rights of value,
and constitutional principles of the highest importance,
about which there had become such a difference of opinion,
that the peace and harmony of the country required the settlement of them by judicial decision."  Vain hope, infatuated belief, that their intervention could settle a contested
political question. Evil was the hour; evil to the peace
and harmony of the country; evil to the principles of constitutional law; evil to the character of the court; evil to
the reputation of those who concurred in it; when  six
judges of the supreme court of the United States united in
a sheer usurpation of the powers of Congress, and a gross
perversion of legal principles; in anl interpretation of the
Constitution which has no warrant in its language, and
which is in conflict with anl unhesitating practical construction of half a century, by all the departments of the government.
If disunion takes place, it will be occasioned, in some
measure at least, by this unhallowed interference of the
judges of the supreme court with the great political question
of the day; for it is quite clear that many and honest persons at the South rely upon these opinions to show that
slave-holders have the right to carry their slaves into the
territories, and to hold them there in servitude, not only
irrespective of, but in defiance of; any legislation of Congress prohibiting slavery there; and they therefore believe,
very sincerely, that the Republican party is attempting to
deprive them of a constitutional and legal right. And the
denial of such right, in the free States, constitutes, so far as
the border slave States are concerned, the "irrepressible 
SLAVERY IN THE TERRITORIES.
conflict," if there be one, between them and the free
States.
If the United States are dissevered, I trust we shall have
the satisfaction, and it will not be a small one, of seeing the
secession carry with it a portion at least of the political
judges who by their unwarrantable interference have rendered the controversy between the different sections of the
country, upon this subject, of more difficult adjustment.
And it mnay serve as an admonition to those of them who
remain, to confine themselves hereafter within the proper
sphere of their judicial duties.
Let me not be misunderstood. I have in former letters
referred to the judgments of the supreme court as matters
of authority. Perhaps some one may ask, have you no
respect for the opinions of the,judges of a court whose judgments you cite as conclusive? I answer: No respect whatever for their opinions or judgments when the court
transcends its jurisdiction, usurps the powers of another
branch of the government, and perverts facts and legal
principles to subserve political purposes.
A particular examination of some portions of the Dred
Scott case, will justify this language, strong as it may
appear to be.
Cambridge, February 4, 1861.
59 
60     SLAVERY IN THE TERRITORIES.
Slavery in the Territories....No. 2.
I do not propose to examine at large the demerits of the
decision in the case of Dred Scott. The part of it which
attracts present attention is that which assumes to determine, as a legal conclusion, that the Missouri Compromise
of 1820, restricting the admission of slavery north of latitude 36~ 30', was unconstitutional and void; the reason
being, that the Constitution extends over the Territories of
the United States, and secures to slave-holders the right to
enter the Territories with their slaves, and the right to hold
them  there in despite of any attempt at prohibition by
Congress.
The determination of that questioin-even supposing it to
be a legal question-was not only wholly unnecessary, but the
effort to reach it was quite extraordinary. The majority of
the judges held, that because Dred Scott was of African
blood, and descended from slaves, he was not a citizen of
the United States; that lie could not therefore sue in the
courts of the United States; and that the court in which
the suit was commenced had no jurisdiction, for that reason.
This settled the disposition to be made of that case and of
any other suit which he might commence in the courts of
the United States, and there was already a decision against
him, in a suit for his freedom, in the supreme court of Missouri. Nothing farther was required to a final determination of his claim to freedom. It was certainly a strange
proceeding, that the supreme court, without any necessity,
should go farther under such circumstances. 
SLAVERY IN THE  TERRITORIES.
Again, if the merits of the case had been regularly under
consideration, the court might, on their own principles,
have come to the conclusion that Scott and his children
were not free, without any opinion respecting the constitutionality of the Missouri Compromise act. Scott had been
held as a slave in Missouri. His master, Dr. Emerson,
took him to Illinois and held him as a slave there.  iHe
then took him to Fort Snelling, west of the Mississippi, at that
time part of the Wisconsin Territory, now part of Minnesota,
where Scott married a negro woman held as a slave by
another person; and Dr. Emerson afterward purchased her,
and held Scott and his wife and child as slaves there,
and took them thence to Missouri, holding them as slaves
there. The six judges held that Scott was not free by reason of his having been taken to the free State of Illinois,
because he did not claim his freedom while in that State.
That having been held in Illinois as a slave, and carried
back to Missouri, the laws of the latter State determined
whether he was or was not a slave; and assuming to administer the laws of Missouri, and not those of the United
States, they determined that his residence in Illinois did not
operate to set him free. So had said a majority of the
judges of the supreme court of Missouri. Now, by a similar
process of reasoning, the six judges might have held, that
the residence of Scott and his wife in the Territory was like
his residence in Illinois in its operation upon the question
of freedom; and that being actually held as slaves in the
Territory, and then carried to Missouri, they were by the
laws of Missouri still slaves. And this would have settled
the whole case upon its merits, that is to say, its legal merits,
in that tribunal. These circumstances serve to show that
there was a determination to reach the question whether
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62     SLAVERY IN THE TERRITORIES.
Congress could prohibit slavery in the Territories, not because that was necessary to a full determination of the
private rights of Dred Scott, but because, as was said
by Mr. Justice Wayne, the case involved constitutional principles of the highest importance, " about whichi there had
become suchl a difference of opinion that the peace and harmony of the country required the settlement of them by judicial decision."
With this evidence before us that the judges not only
went beyond what the case required, but went beyond what
was necessary, ol their own priniciples, to determine the
case on its merits, it should surprise no one to find that the
questions which they undertook to settle, because in their
opinion " the peace and harmony of the country required
the settlement of them by judicial decision," were political
questions, with which the court had nothing to do.  It is
fairly to be inferred that such was the fact from the opinions
themselves.  If they are not to be characterized as good
specimens of stump oratory, parts of them might form very
respectable portions of a Congressional debate.' Mr. Justice
* Witness the following extract from the opinion of Mr. Justice Daniel:
"In this attempt there is asserted a power in Congress, whether from
incentives of interest, ignorance, faction, partiality, or prejudice, to bestow
upon a portion of the citizens of this nation that which is the common
property and privilege of all-the power, in fine, of confiscation, in retribution for no offence, or, if an offence, for that of accidental locality only.
" It may be that, with respect to future cases, like the one now before
the court, there is felt an assurance of the imipowfnce of such a pretension; still the fullest conviction of that result can impart to it no claim to
forbearance, nor dispense with the duty of antipathy and disgust at its sinister aspect, whenever it may be seen to scowl upon the justice, the order,
the tranquility, and fraternal feeling, which are the surest, nay the only
means, of promoting or preserving the happiness and prosperity of the
nation, and which were the great and efficient incentives to the formation
of this government." 
SLAVERY IN THE TERRITORIES.
Campbell speaks flippantly of what is " thought their fort
by our adversaries;" meaning thereby those who contend
that Congress had a right to exclude slavery from the territories; including, it would seem, Mr. Webster and Mr. Clay,
who had made speeches in Congress in favor of the right of
restriction, and Justices McLean and Curtis, who dissented
from the opinion of the court. I have no recollection of
ever seeing a similar instance of partisanship by a judge, in
delivering a judicial opinion; but I have seen many in Congressional debates, and the fair conclusion is, that " our
adversaries" were our political adversaries.   The judges
of a legal tribunal, in delivering their judicial opinions,
never have adversaries.   Mr. Justice  Catronl  speaks of
"the question of infraction of tie treaty " through which
Louisiana was acquired, by a supposed act of Congress,
drawing the line, north of which slavery should not exist,
on the thirtieth degree, as a question upon which  no one
would doubt what the decision of the court would be; as if
the infraction of a treaty by an act of Congress was a proper
matter for the interference and control of the court. And
he said "The Missouri Compromise Line was very aggressive;" leading to one of two inferences, to wit: either that
he was discussing a political question, or that if the line had
been somewhat farther north, the act might, in a legal
point of view, have been constitutional.
But admit that the phraseology and general course of the
opinions furnish only prima facie evidence that the question under the consideration of the court was a political
question; the fact that the question of restriction had, from
the time of its first agitation up to 1847, and for years
afterwards, been considered a political matter, for the decision
of Congress  might well be considered as determining its
63 
64     SLAVERY IN THE TERRITORIES.
true character by an unhesitating practical construction.
This, however, seems not to have been enough for the six
judges, and I propose now to follow out what they saw fit to
treat as a legal question, to some of its legal results, as
deduced from their opinions.
If the provision in the Constitution authorizing Congress
to "make all needful rules and regulations respecting the
territory or other property belonging to the United States,"
applies to territory acquired after the adoption of the Constitution, it would seem to settle the power of Congress in
reference to this question; for in the absence of any constitutional restriction, limiting this clause, Congress must
judge what rules and regulations were "needful."  The
existence of slavery in some of the States, even if slaves
were regarded as property, could not operate as a limitation
upon this power. We find, accordingly, a most labored
effort, in the " opinion of the court," to show that the clause
does not apply to such after-acquired territory. For myself,
I freely admit that it was not inserted in the Constitution
with reference to any such territory, but my reason for this
admission is altogether different from the reasons suggested
by the court.   My reason is, that the Constitution was
made for the United States, as limited by the treaty of
peace; that it looked to no acquisition of foreign territoryand of course contained no provision for the government of
any such territory.  And then it follows, "as the night the
day," that the Constitution does not extend itself over any
newly acquired foreign territory, nor can Congress extend
it over such territory while it remains in a territorial condition. And it will follow, also, as an inevitable conclusion,
that all questions respecting the government of such territory are political and not legal or judicial questions. " It 
SLAVERY IN THE TERRITORIES.
needs no ghost come from the grave" to assure us that a
clause in the Constitution providing directly for the acquisition and government of farther territory, to be afterward
admitted as States, would have most effectually secured the
rejection of the Constitution; probably by the votes of all
the New England States, as well as others. Besides, such
provision, looking to the dismemberment of some foreign
government, might have been justly regarded as offensive
by Great Britain or Spain. But there are powers through
which territory may be acquired, incidentally, although they
were not inserted for that purpose. And when acquired, it
is held by the sovereignty of the United States, as a nation,
(not as a compact,) and the sovereignty or nation which
holds it must provide for its government.   The opinion of
the court in Dred Scott's case admits this.  (See 19 Howard's Reports, 448.) A better auithority, however, to show
that such may be the just conclusion, is found in 1 Peters'
Supreme Court Reports, 542.
Some one may ask: "If this be so, how is it that new
States are admitted, formed from such after-acquired territory; because, on that principle, the provision in the Constitution allowing the admission of new States cannot be
construed as applying to new States formed from such territory?" The six judges assume, withliout reasoning, that the
provision authorizing the admission of new States does apply
to States formed out of such territory. But this is all a
mistake, or a perversion. The Constitution containing no
express provision for the acquisition of foreign territory, so
that it is acquired only by the exercise of a power, broad
enough to be sure, but not inserted for any such purpose;
and there being no provision for the government of any
such territory when acquired; it is preposterous to say that
9
65 
66     SLAVERY IN THE TERRITORIES.
the express provision for the admission of new States had
reference to States to be formed out of territory which it
was not proposed to obtain. And it can be conclusively
shown that this constitutional provision for the admission
of new States, had reference to States to be formed out of
territory and out of States then within the limits of the
United States. Thie discussion of that subject is foreign to
the present purpose. But any competent investigator may
find abundant proof, supporting this position, in the history
of the adoption of the Constitution.   And, without any
inordinate vanity, I may claim to have shown the proof,
in an "Address before the citizens of Cambridge, October
1, 1856."
It may be asked again, "Hfow, then, are the States,
formed from such territory, in the Union, and under the
Constitution?" The answer is, that Congress has assumed
the power to admit them, and the legislative department of
the Union having admitted them, allowed them  a represenitation, and extended the laws of the United States over
them, with their assent, they are necessarily in the Union
by the exercise of the authority which admits States; and
they cannot be ousted. The Constitution is extended over
them by the acts of admission, as it was extended over
the States North-west of the Ohio, Vermont, and other
States, within the limits of the United States, on their
admission. The admission of Texas, which was  never a
territory of the United States, shows this. Any one who
examines the history of the acquisition of Louisiana, and of
the admission of the ungrateful State of that name, will see
that Mr. Jefferson was clearly of opinion that an amenldment of the Constitution was necessary in order to the
admission of States outside of the original limits. But his 
SLAVERY IN THE TERRITORIES.
political friends showed him a practical way of amending
the Constitution without the embarrassment of a formal
addition to that instrument.
To return to the law of the territories, and to show farther that the question whether slavery shall be admitted is a
political question, let us examine and see to what inevitable
conclusions the doctrine of the six judges, that it is a legal
question, settled by the Constitution, will lead us. Ill the
4 opinion of the Court," delivered by  Mr.  Chief Justice
Taney, they say: "When the territory becomes a part of the
United States, the Federal Government enters into possession iii the character impressed upon it by those who created
it. It enters upon it with its powers over the citizen strictly
defined and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it cointinues to exist and to act as a government and sovereignty.
It has no power of any kind beyond it; and it cannot,
whenii it enters a territory of the United States, put off its
character and assume discretionary or despotic powers which
the Constitution has denied to it. It cannot create for itself
a new character separated from the citizens of the United
States, and the duties it owes them under the provisions of
the constitution. The territory being a part of the United
States, the government and the citizen both enter under the
authority of the constitution, with their respective rights
defined and marked out; and the Federal Government  can
exercise no power beyond what that instrument confers, nor
lawfully deny any right which it has reserved."  * *
"The powers of the Government, and the rights of the
citizen under it, are positive and practical regulations plainly
written down. The people of the United States have delegated to it certain enumerated powers and forbidden it to
67 
68     SLAVERY IN THE TERRITORIES.
exercise others. It has no power over the person or property of a citizen but what the citizens of the United States
have granted. And no laws or usages of other nations, or
reasoning of statesmen or jurists upon the relations of master
and slave, can enlarge the powers of the Government, or
take from the citizens thie rights they have reserved.  And
if thie constitution recognizes the right of property of the
master in a slave, and makes no distinction between that
description of property and other property owned by a citizen, no tribunal, acting, under the authority of the United
States, whether it be legislative, executive orjudicial, has a
right to draw such a distinction, or deny to it the benefit of
the provisions and guaranties which have been provided for
the protection of private property against the enroachmelits
of the Governmenlt."
"Now as we have already said in an earlier part of this
opinion, upon a different point, the right of property in a
slave is distinctly and expressly affirmed in the constitution.
The right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the
United States, in every State that might desire it, for twenty
years.  And  the Government, in express terms, is pledged
to protect it in all future time, if the slave escapes from his
owner. This is done in plain words-too plain to be misunderstood. And no word can be found in the Constitution
which gives Congress a greater power over slave property,
or which entitles property of that kind to less protection,
than property of any other description.   Thle only power
conferred is the power coupled with the duty of guarding and
protecting the owner in his rig,hts.
" Upon these considerations, it is the opinion of the court
that the act of Congress which prohibited a citizen from 
SLAVERY IN THE TERRITORIES.
holding and owning property of this kind in the territory of
the United States north of the line therein mentioned,
is not warranted by the Constitution, and is therefore
void, &c."
I have made extended extracts in reference to this point,
in order that the six judges may have the benefit of all the
truisms contained in them; and I have italicized several
sentences which I shall have occasion to refer to, in their
bearing and operation upon the conclusion that the Constitution carries slavery into the territories. The reasons thus
set forth, to show why Congress cannot prevent the introduction of slavery, have a further and marked significance
in relation to the question: What power has Congress over
it after it gets there?
But let us first inquire what this slavery is, which the
Constitution, through the instrumentality of these six
judges, introduces into a territory despite the prohibition of
Congress?  It is an absolute power, unmitigated, unrestrained and unregulated; power, without responsibility, on
the part of the master;  absolute subjection, unlimited,
unprotected and unresistant-subjectionii without redresson the part of the slave. In order to show this, I will not
stop to consider what would be the relation of master and
slave in a territory into which settlers had entered before
any territorial government had been organized, as in the
case of California; but take the case of a territory duly
organized by act of Congress, and where, of course, there
is a body of law existing for the government of the population. Suppose that Congress, believing the opinions of the
six judges to be an attempt to usurp legislative power, and
an infringement of the powers of Congress, inserts into the
act for the organization of the territory a prohibition against
69 
70     SLAVERY IN THE TERRITORIES.
the existence of slavery there. The legislature of the territory, supposing it to have one, (which, however, is not a
legal nor even a political necessity,) does not assume to pass
any law regulating the relation of master and slave, which,
according to the organic act, cannot have any existence
there. The slave-ownier enters with his slaves, the Constitution in his right hand, and the opinion of thile six judges
in the matter of Dred Scott in his left.  Now I ask, with all
due respect to the opinion of any body who entertains the
supposition that there is a semblance of constitutional law
in the opinioni thus expressed, what law, or code of laws, is
to determine the right and power of the master over his
slave, and to regulate their exercise?  There is nothing in
the Conistitution, which the slave-holder carries with him,
whlich prescribes what he may do with his slave, or what lihe
hle shall forbear to do. The judges say that it authorizes
him to take him there, and hold him as property.  That is
all. There is no law of Congress mitigating the servitude,
or controlling the power of the master. Congress prohlibited the existence of the slavery, but the prohibition is void.
There is no statute of the territorial legislature restraining the passions of the master, regulating the service, limiting the subjection, or protecting the slave; for the legislative authority of the territory does not recognize the servitude. That is the beneficent office of the Constitution.
The slave-holder does not, and cannot, carry with him the
slave code of the State from which he emnigrated, and which
regulated his riglrts and duties while there. If he might,
there would be as many slave codes in a single territory as
there were States from which the slave-owniers came, and
the laws on that subject would soon be in inextricable confusion. The supreme court sent the slavery there, but it 
SLAVERY IN THE TERRITORIES.
may be presumed that there are some things that the
supreme court cannot do. The six judges cannot compel
Congress or the territorial legislature to enact a slave code
for the territory; neither can they pass a law themselves
to regulate the "peculiar institution" which  they have
introduced.   After  the decision  in  Scott's case,  however, I ought, perhaps, to say this with some hesitation.
The inevitable consequence is just what I have stated it
to be. The right of property which the slave-liolder carries
with him illto the territories, under such circumstances, is
an absolute uncontrolled right, regulated and restrained by
no law, and of course without responsibility to law. He
may kill his slave whenever it suits his convenience, without
any legal responsibility for the act; and he may eat him
afterwards if it is his pleasure so to do. This is the constitutional right of the slave-holder, as fairly deduced from
the opinions of the six judges. It is a consequence of their
doctrine, from which they cannot escape. I do not state it
too strongly. The decisions of the judicial tribunals in the
slate States assume, as they must assume in general, that
the ocal law, and that alone, retulates the relation of master and slave.  And, treating the slave as property, in the
absence of State legislation limiting and controlling the
power of the master, his irresponsibility, even for the killing
of his slave, has been emphatically and iunhlesitatingly
asserted.  It is true that in two early cases, one in Mississippi and one in Tennessee, it was held the killing of a slave
might be murder, or manslaughter, at the common  law.
But the principle upon which these decisions were founded
was*6xamined and controverted in Georgia, and in that
State, and in North and South Carolina, also, it is held that
the common law is not applicable to slaves. Let the supreme
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72     SLAVERY IN THE TERRITORIES.
court of Georgia speak upon this subject, which they do in
this language: "The civil rights of the master do not appertain to the slave; of these he can have none whatever." *'
" It is absurd to talk about the common law being applicable
to an institution which it would destroy." * * "Licensed
to hold slave property, the Georgia planter held the slave as
a chattel; and whence did he derive title?  Either directly
from the slave-trader, or from those who held under him,
and he from the slave-captor in Africa. The property in
the slave in the planter, became thus just the property of the
original captor.  In the absence of any statutory limitation
vpon that property, he holds it as -nqualfiedly as the first
proprietor held it; and his title and the extent of his property
were sanctioned by the usage of nations, which had grown
into a law." * * " There is no sensible account to be
given of property in slaves here but this.  What were, then,
the rights of the African chief to the slave which he had
captured in war? The slave was his, to sell, or to give, or
to kill."-9 Georgia Reports, 579, 580-Neal v. Farmer.
And so it follows, logically, from the opinion of the six
judges, that the barbarism of Africa is introduced into the
territories of the United States, by tile Constitution, and
protected there. A more odious libel upon the Constitution
cannot well be imagined. The iniquity of the usurpation
through which it is promulgated, is only exceeded by the
atrocity of the result.
But this is not all.
Cambridge, February 14, 1861. 
SLAVERY IN THE TERRITORIES.
Slavery in the Territories....No. 3.
Upon the hypothesis that the constitution, (there being
no provision in it for the acquisition of foreign territory,
and the formation of States out of such territory,) does
not extend itself over territory acquired by conquest or
by treaty, but that such territory is left to fall under the or diniary rules of public law, there is no difficulty respecting
the regulation of slavery, or any other domestic institution
or relation, there, while it is under a territorial organization. The laws of the country from which it was acquired,
and which were in operation for the government of the
inhabitants, remain in force until abrogated by Congress.
If those laws prohibit slavery, it cannot subsist there until
it is permitted. If they allow it, then it exists until forbidden, and it is regulated in thle mean time by such rules
as those laws prescribe for the limitation and restraint of
the power of the master. And so of the other relations of
life. The local courts remain for the administration of
justice according to laws adapted to the wants of the inhabitants for the time being. Such alterations may be made
upon the organization of the territory, and from time to
time, as circumstances require. If the territory acquired
is inhabited by Indians only, it may be supposed that no
law of civilization exists there until it is introduced by the
authority of Congress.
Suppose that, with a humble resignation to our "manifest
destiny," we take another slice of Mexican territory, con
10
73 
74     SLAVERY IN THE TERRITORIES.
taining a large population. There are laws already existing
adapted to the existing civilization there. Any sudden introduction of the laws of the United States, without a
change introducing the local municipal law of some State,
also, would produce incongruity; for the laws of the United
States are founded, to a considerable extent, upon the legislationi of the different States, adopting the State laws as
the basis of the national jurisprudence. And the immediate
substitution of the municipal regulations of any one of the
United States would compel the conquered inhabitants to
transact their daily affairs according to principles which
they did not comprehend; would provide for an administration of justice of the details of which they had no conception; and would subject them to penal consequences
of which they could have no anticipation.  Well, Congress,
aware of all this, in its wisdom, organizes the territory by
the appointment of a territorial governor, and with a few
simple provisions conferring upon him certain power and
authority, considers its present duty performed.   But the
six judges say that the constitution forthwith extends itself
over this territory. Now I should like to know what the
constitution is going to do with itself after it gets there.
It can enact no laws, and it carries none with it, either National or State. It provides that the trial of crimes shall be
by jury, but there is no law for summoning or organizing a
jury, or directing the place of trial; and if twelve men
could be got into a jury box, somewhere, they would have
no sufficient knowledge what they were to do, or on what
principles they were to do it. This may serve as an exemplification of the operation, in other respects, of this selfextended constitution; which was made for States and not
for Territories. The six judges, referring to divers consti 
SLAVERY IN THE TERRITORIES.
tutional provisions, specify several things which they say
Congress could not do there, because forbidden by the constitution. Most of them are matters which Congress would
have no temptation to do.  Among them, it is said, -" Nor
can Congress deny to the people the right to keep and bear
arms, nor the right to trial by jury, nor compel any one
to be a witness against himself in a criminal proceeding."
Really! if the constitution does forthwith secure to the
people of a conquered province the right to bear arms, it is
certainly the most strange and wonderful constitution that
was ever heard of. The proposition is pre-eminently preposterous. The denial of the right, and the disarming of
the people, may be the very things which are necessary to
prevent a revolt. ilow the people are to get a trial by jury
until Congress provides for it, the six judges do not explain.
And if Congress should make a law requiring a party accused to submit to a full examination, and thus compelling
him, if guilty, to be a witness against himself; (which
perhaps is not a very strange law to a foreigner, out of the
British dominions,) until it shall please Congress to extend
the jurisdiction of the supreme court over the territory,
what are the six judges going to do about it.  Are they
quite clear that the constitution or laws of the United States
will authorize the court to interfere, before any act of Congress provides for the exercise of their power, or for the
organization of judicial tribunals in the territory? This
illustration of their position that the constitution extends
itself over the territory, furnishes very cogent evidence that
the question is political and not judicial, and that their interference was wholly unwarrantable.
It may be objected that if the constitution is not extended
over the territories, Congress can govern them by an arbi
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76    SLAVERY IN THE TERRITORIES.
trary power; —that there is no restraint upon the exercise
of its authority. The objection seems plausible, but it is
theoretical, and not practical. Congress is the legislative
department of the government, elected according to the
constitutional safeguards.   The  legal presumption,  (contradicted in some particular instances I admit,) is, that
Congress is not made up of bullies and blackguards, and
that the rights of the people inhabiting the territories may
be safely entrusted to the guardianship of the national
legislature, during the time of their territorial existence.
Such has beenii the practical construction, from the necessity
of the case, in the absence of a constitutional provision.
No territorial government has been organized according
to the requisitions of the constitution, supposing that instrumqnt to extend over the territories.   The  act of 1804,
erecting Louisiana into two territories, provided that the
legislative powers should be vested in the governor, and in
thirteen of the most discreet persons in the territory, to
be called the legislative council, who should be appointed
annually by the President of the United States, and whose
legislative powers should extend to all rightful subjects
of legislation, subject to certain limitations.  It extended
certain enumerated acts of Congress over the territory, and
made provision that the laws in force in the territory, not
inconsistent with the provisions of the act, should remain
in force until altered or repealed by the legislature. This
was the practical popular sovereignty in the territories
under Mr. Jeffersonl's administration. The judges of the
superior court were appointed for the term of four years,
instead of good behavior.
It may be noted here, that in this earliest act for the
organization of a territory outside of the original limits 
SLAVERY IN THE TERRITORIES.
of the United States, Congress regulated the introduction
of slaves just as far as that body pleased, by provisions
prohibiting any person from bringing into the territory any
slave from any place without the limits of the United States,,
or any slave from any place within the United States, if
such slave had been imported since May 1, 1798; and
enacting that no slaves should be introduced except by a
citizen of the United States removing into the territory for
actual settlement, and being at the time the bona fide owner,
and that every slave brought in contrary to the provisions of
the act should be entitled to, and receive, his freedom.
The residue of the province of Louisiana, not embraced
in the territory of Orleans, was called the district of Louisiana. And it was provided, that the executive power of
the governor of the Indiana territory should extend to and
be exercised in the district; and that the governor and
judges of the Indiana territory, (who, by the by, were
appointed for a term of four years,) should have power to
establish inferior courts within the district, and prescribe
their jurisdiction and duties, and to make all laws which
they might deem conducive to the good governlment of the
inhabitants. There were provisos that no law should be
valid which should be inconsistent with the constitution
and laws of the United States, and for securing certain
rights to the inhabitants, but there was no recognition of
a right to hold slaves in the district, nor any thing restraining the governor and judges from passing a law prohibiting
entirely the introduction of slaves.
The territory of Florida was organized in 1822, in a
manner similar to that of Orleans, as above stated.
The acts for the organization of the territories of Washington, Kansas, and Nebraska, in 1854, contain provisions
77 
78    SLAVERY IN THE TERRITORIES.
for the appointment of judges by the President, or President
and Senate, who were to hold their offices for the term of
four years, and until their successors were appointed. If
the constitution extended itself over these territories, all
the appointments of judges were in conflict with the provision of the constitution, that the judges, both of the
supreme and inferior courts, shall hold their offices during
good behavior.
Will the supreme court hold that the supposed judicial
acts of all the judges appointed in these and other territories, have been void, because they were not appointed
according to the constitution. Will they even decide that
the judges were officers de facto, and so that their doings
were valid so far as third persons were interested in them,
but that the judges themselves were wrong doers;-trespassers when by their process the property of any one was
seized; and homicides when through their sentence any
one has been hung; the execution being valid so far as the
marshal was concerned who executed the sentence; but
being a murder on the part of the judges, they not being
judicial officers de jure.
These considerations may well lead us to the conclusion
that where territory is acquired outside of the original
limits of the United States, it may, and in some instances
must, be governed outside of provisions of the constitution
which were not intended for such a contingency. If we
acquiesce in the acquisition of such territory, we may trust
the members of the national legislature to provide for its
government, in the exercise of their discretion, under their
responsibility to their constituents and to the civilization of
the age. Some things may be done unwisely. Party interests may lead to oppression, as in the case of Kansas; (in 
SLAVERY IN THIE TERRITORIES.
which, however, the outrageous wrong was on the part of the
Executive, and not by Congress;) but any attempt of the
supreme court to interpose its judicial power for the government of such territory, instead of, and in opposition to, the
will of the political power to which it rightfully belongs, will
only be productive of much greater, because more wide
spread, mischief. The court cannot provide for the administration of justice in such territory. Take again the case
supposed of a further acquisition of territory from Mexico.
The Mexican law forbids slavery. Congress has appointed
a governor, and has not legislated farther. A slave-holder
goes there with his slaves, and the alcalde, or other judicial
officer, sets them free. Will the supreme court issue a
mandamus, or sustain a writ of error for the reversal of the
decree?
But let us examine this doctrine that the constitution
carries slavery into a territory, and protects it there, in its
application to a territory for which Congress has undertaken
to provide a body of municipal law.
In all cases where slavery exists in a State, unless there is
some constitutional provision regulating it, the State constitution, either in express or general terms, gives ample power
to the legislative department to provide rules and regulations for limiting and controlling the power of the master.
Every slave State has its slave code or laws for this purpose; and the absolute right, which, according to the decision in Georgia, would otherwise exist, is thus modified. But
if the constitution of the United States extends over the territories, and carries slavery there and protects it, and if
Congress legislates for the territories under authority given
by the constitution, as the six judges assume that it does,
there is no power in Congress, by its legislation, to limit and
79 
80    SLAVERY IN THE TERRITORIES.
control the power of the master, and ally attempt so to do
must be void. This is a legitimate result from the opinion
of the court as delivered by Mr. Chief Justice Taney. That
opinion, as we have seen, denies emphatically that the clause
of the constitution empowering Congress to make rules and
regulations respecting the territory or other property belongilig to the United States, applies to the government of the
territories. And the court say in other parts of the opinion,
-" as there is no express regulation in the constitution
defining the power which the General Government may exercise over the person or property of a citizen in a territory
thus acquired, the court must necessarily look to the provisions and principles of the constitution, and its distribution
of powers," &c.  " What is the best form" [of organization]
"must always depend on the condition of the territory at the
time, and the choice of the mode must depend upon the
exercise of a discretionary power by Congress, acting within
the scope of its constitutional authority, and not infringing
upon the rights of person or rights of property of the citizen
who might go there to reside or for any other lawfill purpose."  "The powers of the Government and the rights and
privileges of the citizen are regulated and plainly defined by
the Constitution itself."  "It" [the Government,] " enters
upon it" [the territory,]  "with its powers over the citizen
strictly defined and limited by the Constitution."  "The
Government and the citizen both enter it under the authority
of the constitution, with their respective rights defined and
marked out; and the Federal Government can exercise no
power over his person or property bcyond what that instrument confers," &c. I have cited some of these passages
more at large in the previous number. 
SLAVERY IN THE TERRITORIES.
Now it is beyond question that the constitution confers no
power, in terms, upon Congress to enact a slave code, or to
provide any rules and regulations to limit the power of a
master over his slave. It confers no power to legislate gen erally, except over the district which may become the seat
of government, and places purchased  for the erection of
-forts, magazines, &c., unless the clause respecting rules and
regulations for the territory is applicable.  Much less does
it confer uipon' Congress any power to limit and control, or
modify, any right conferred by the constitution itself.
I claim to have shown in my last letter that, upon the
doctrine asserted by the six judges, the slave-hlolder who
enters a territory where slavery is prohibited by act of Con  gress, enters with a constitutional right of absolute power
over his slave.  He cannot enter with any smaller constitu tional right, by reason of any act of Congress which attempts
to limit and control his rights. Will any one look at the
grants of power to Congress, in the Constitution, and tell me
which authorizes the enactment of slave codes for the terri  tories?
The same principle leads to the conclusion that the terri  torial legislature cannot limit the absolute power of the
slave-holder.  If the citizen enters the territory with his
rights and privileges regulated and plainly defined by the
Constitution;-if the government enters upon it with its
power strictly defined and limited; if they both enter upon
it with their respective rights defined and marked out; and
the government can exercise no power over his person or
property beyond what that instrument confers;-(all which
is elaborately set forth in order effectually to secure the
right, whatever it is, with which the citizen enters;)-AND
IF the right with which he enters, is, as we have seen it to
11
81 
82     SLAVERY IN THE TERRITORIES.
be, according to the principles of the six judges, the right
of absolute power over his slave as property, assuredly there
is nothing to be found in the constitution authorizing the
territorial legislature to limit or control that constitutional
right, either through any grant from Congress, or by any
legislative power emanating from any popular sovereignty
in the territory, for there can be none overriding, or overruling, the constitution. According to the opinions of the
six judges, the constitutional right to enter the territory is
an unqualified right. except so far as we may find in the
constitution some strictly defined and limited power marked
out, to modify and control it; and we find none. Even
a general power of legislation, such as exists in relation to
the District of Columbia, would hardly seem to be sufficient; but such a power is nowhere defined and marked
out, for this purpose.
Nor is it readily perceived how the people of the territory,
when they form a state government, can either abolish or
control this constitutional slavery which has thus obtained
a lodgment in the territory. They cannot by their constitution infringe upon a right guaranteed by the constitution of the United States.
Perhaps it may not be amiss to remark here, that upon
the principles asserted by the six judges, this peculiar
property possesses constitutional rights and privileges which
no other species of property can claim; for the constitution
does not recognize any right of property in horses, cattle,
sheep, dogs, &c., nor contain any guarantees respecting such
property; and the introduction of such animals into a
territory may be prohibited, should Congress in its wisdom
perceive any good reason for the prohibition.   [Mr. Justice
Daniel said, "that the only private property which the Con 
SLAVERY IN THE TERRITORIES.
stitution has specifically recognized, and has imposed it as a
direct obligation both on the States and on the Federal Government to protect and enforce, is the property of the master
in his slave; no other right of property is placed upon the
same high ground, nor shielded by a similar guaranty."]
But let us pursue the principles of the six judges in the
case of Dred Scott to their legitimate consequences in
another direction.  Whether or not the constitution of the
United States extends over the territories while under a
territorial government, there is no question that it extends
over all the states of the Union. Now if it be true that
the constitution recognizes slaves as property, and therefore
authorizes the owner to take them with him as property
into a territory, and hold them there as slaves, against
the prphibition of Congress, by the same reason he may
take them to a free state, and hold them there as slaves,
temporarily at least. It is not necessary to inquire what
his rights may be if he voluntarily becomes a citizen of a
free state.  Entering the free state as a citizen of another
state, with his slaves, for a temporary purpose, the six
judges cannot hold, consistently with their principles, that
the slaves become free; for if the constitution recognizes
a right of property which is paramount to the laws of
Congress, it must also, thusfar, be a right paramount to
the laws, and even to the constitution, of a state.  "The
citizens of each state shall be entitled to the privileges and
immunities of citizens in the several states." " No person
shall be deprived of life, liberty, or property, without due
process of law," &c. This right of coming within the free
states, with slaves, for a temporary purpose, and of passing
through such states, is strenuously maintained by many
southern politicians; and perhaps while I am writing the
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84    SLAVERY IN THE TERRITORIES.
supreme court are making up this very decision iil the
"Lemmon  case,"  which  occurred  in the  city of  New
York. Well, we have the slave-holder thus duly a resident, temporarily, in a free state, with his slaves, as property, under the protection of the constitution. Now suppose
that while residing in or passing through the free state he
kills one of his slaves, under such circumstances that
deliberation and malice are clearly apparent. How shall
the state's attorney proceed against him? Not under any
law of the United States, for it has none adapted to the
case, and the crime, if one has been committed, is not an
offence against the United States. Not under any law of
the state from which the master came, because, clearly, he
did not bring a criminal code with him. No state executes
the penal laws of another state. The free state in which
the act was done has no slave code for the punishment of
the slave master. These considerations furnish most cogent
reasons not only against such a decision but against the
admission of any amendment to the constitution allowing
the holding of slaves even temporarily in a free state. As
to fugitives it is the duty of the master upon the delivery to
take the slave out of the free state immediately. In the
case supposed, the course to be pursued is to indict the
master under some statute punishing cruelty to animals, if
there be such a statute, or else to indict for murder. But
the mortal blow was dealt so dexterously, and the death
followed so suddenly, that the ordinary characteristics of
cruelty do not exist; and besides the state's attorney has
been accustomed to regard a negro as a human being.  So
the grand jury, on his representation, indict for murder, the
petit jury convict, and the court sentences the prisoner to be
hung. But the six judges say that the slave was property, 
SLAYERY IN THE TERRITORIES.
and was held as such, under the protection of the constitution, up to the time of his death; that the killing manumitted him, to be sure, but not in season, through the manumission, to constitute the crime of murder, because the act of
killing was begun and perfected upon property. And so the
conclusion must be that the indictment, trial, and conviction,
were all erroneous, and the party entitled to maintain a
writ of error, in order to avail himself of the rights secured
to him by the constitution.
But Georgia has shown us, in the case of Tassels, that
there may be a practical abatement of the writ of error, by
hanging the plaintiff in error before he can prosecute his
writ!
It remains to examine the position of the six judges that
the constitution recognizes slaves as property.
Cambridge, February 19, 1861.
85 
86    SLAVERY IN THE TERRITORIES.
Slavery in the Territories....No. 4.
Having proved, from the nature of the question itself,
and by a brief reference to the history of the territories
from the acquisition of Louisiana to the organization of
Kansas in 1854, that the Constitution does not extend over
the territories while in a territorial condition, and that they
have uniformly been organized and governed, in important
particulars, according to the discretion of Congress, and
not in compliance with what the Constitution would require
if it was the paramount law there; and having proved, farther, that the question whether slavery shall be allowed or
prohibited in a territory is a political question for the determination of Congress, and not one of a judicial character
to be settled by a court of law   I proceed in the third place,
to show, that if the question was one of a purely legal
character, the "opinion of the court" that the act of Congress for the restriction of slavery north of latitude 36~ 30,
commonly called the Missouri compromise, was unconstitutional and void, is, as a legal conclusion, utterly indefensible,
being founded upon a false assumption of fact, for which
there is no reasonable excuse.
The elaborate arguments of the six judges, to show that
the Constitution extends over the territories, are entirely
unavailing for the extension of slavery there, unless it is
also shown that there is something in the provisions of the
Constitution which overrules and annuls any action of Congress to restrain the introduction of slavery. 
SLAVERY IN THE TERRITORIES. 
The fact that the express and specific powers of legislation
granted by the Constitution to Congress, comprise no power
to prohibit slavery, will not suffice to show that the restriction is void; because it is evident that those express grants
of power relate to the legislation of Congress which is to be
operative within the States, and where of course the State
authority provides for the local municipal legislation. It is
quite clear that Congress possesses and exercises a power of
legislation over the territories altogether beyond the limited
grants of power which that body may exercise within the
States. If it were not so, then there could be no code of
general municipal law enacted for a territory; for Congress
could not authorize a territorial legislature, supposing one
to exist, to do what Congress could not do of itself directly.
Or if the doctrine of popular sovereignty were admitted, so
that Congress had nothing to do but to provide for the
organization of the territory, leaving the people to form
their own territorial institutions in their own way, subject
to the provisions of the Constitution, it would follow that
they might prohibit slavery, unless there is something in the
Constitution which affirmatively authorizes the slave-holder
to take his slaves there, and protect him in retaining them
in slavery.
The six judges so understand it, and in "the opinion of the
court" attempt to maintain the position that the Constitution
does affirmatively secure the right, by asserting that upon
the opening of a territory for settlement all citizens have a
right to enter with their property, and that the Constitution
recognizes slaves as property. The substance of their conclusions upon this part of the case is thus stated in the
abstract prefixed to the report of the case, viz.:
87 
88     SLAVERY IN THE TERRITORIES.
"The territory thus acquired, is acquired by the people
of the United States for their common and equal benefit,
through their agent and trustee, the federal government."
"Congress have no right to prohibit the citizens of any
particular State or States from taking up their home there,
while it permits citizens of other States to do so. Nor has
it a right to give privileges to one class of citizens which it
refuses to another. The territory is acquired for their equal
and common benefit-and if open to any, must be open to
all upon equal and the same terms."
"Every citizen has a right to take with him into the territory any article of property which the Constitution of the
United States recognizes as property."
"The Constitution of the United States recognizes slaves
as property, and pledges the federal government to protect
it. And Congress cannot exercise any more authority over
property of that description than it may constitutionally
exercise over property of any other kind."
" The act of Congress, therefore, prohibiting a citizen of
the United States from taking with him his slaves when he
removes to the territory in question to reside, is an exercise
of authority over private property which is not warranted
by the Constitution."
I have given the language of the abstract thus at large,
that there may be no room for a supposition that there is
any misapprehension respecting the actual doctrine of those
who assumed to determine this matter. We have before us
the premises, and the logical sequence through which they
state their conclusion.
The suggestion that a restriction of slavery in a territory
would violate the amendment to the Constitution which
provides that no person shall be deprived of life, liberty, or
L, ofC. 
SLAVERY IN T JE TERRITORIES.
property, without due process of law; and the political disquisitionil of Mr. Justice Campbell to show that Congress
does not possess the power of restraint, may serve adroitly
to cover up the legal issue, but they have no just place in
the case as grounds of judicial conclusion; and as they are
not made the basis of the decision, they do not require a
refutation.
It is hardly expedient to prolong this discussion by an
argument to show, that however it might be admissible in a
political debate, and by way of illustration, to speak of the
Federal Government as the "agent and trustee" of the
people, those terms are entirely inapplicable and unwarranted in describing the legal relations of the government
and people. Nor shall I stop to show that the position, that
every citizen has a right to take with him into the territory any article of property which the Constitution of the
United States recognizes as property," is utterly without
any foundation as a legal principle. The Constitution does
not so say, and there is no principle of public law which
supports the proposition.
But I propose to demonstrate, beyond the possibility of a
fair denial, that the Constitution does not recognize slaves
as property; and that the whole foundation of the opinion,
assuming the question to be a legal one, fails for this reason.
In point of fact the absence of any such recognition in the
Constitution is so palpable, upon an inspection of that
instrument, that one cannot but marvel at the judicial confidence with which its existence is assumed.
Let us look at this matter a little more closely. There
are three provisions in the Constitution which undoubtedly
have reference to slavery, and where we understand that
rights are recognized, as dependent upon its existence. In
12
89 
90    SLAVERY IN THF TERRITORIES.
neither of them is the term slave used. There is no inference, therefore, of a right of property, to be derived from
the use of a word which, it might be argued, denotes or
describes property. On the contrary, in each instance, the
Constitution in referring to the slaves speaks of them as
"persons," and not as property, and in neither of them
does the subject matter imply that there is a property in the
persons thus mentioned. In fact, in each instance, they are
spoken of, either in connection with other persons, as having
a personal status, or with capacities which do not belong to
property.
The first instance in which any reference is had to slaves
or slavery, is the provision that " Representation and direct
taxes shall be apportioned among the several States, which
mpy be included within this Union, according to their
respective numbers, which shall be determined by adding to
the whole number of free persons, including those bound to
service for a term of years, and excluding Indians not taxed,
three-fifths of all other persons." The part of this provision
which refers to the slaves neither expresses nor implies the
idea of property, either by its words, its object, or its connection with the other branches of the clause. The words
are, " three-fifths of all other persons." Unless slaves are
persons, they are not embraced in it. Persons bound to
service for an indefinite time, dependent upon a contingency, seem to be embraced in it, but such persons are not
property. So of persons bound to serve for the life of a
third person.  And persons bound to service during their
own lives, are by no means necessarily so, even admitting
that they may have that character.  The object of the provision is to establish a basis upon which representatives and
taxes are to be apportioned among the States, and that basis
:.
*2
,.v:. * 
SLAVERY IN THE TERRITORIES.
is clearly persons, and not property. The other branches of
the sentence, with which this part is in connection, relate to
persons, and not to property. This clause, therefore, standing by itself, not only has no tendency whatever to a recognition of slaves as property, but furnishes an argument to
show that the Constitution intentionally repudiated that
idea, for otherwise they might at least have been designated as slaves, without circumlocution.   This clause is
not cited in the opinion of the court as a recognition of
property.
The second instance of a provision having direct reference
to slavery, is this: "The migration or importation of such
persons as any of the States now existing shall think proper
to admit, shall not be prohibited by the Congress, prior to
the year one thousand eight hundred and eight; but a tax
or duty may be imposed on such importation, not exceeding
ten dollars for each person." Here again there is no recognition of property, even by implication, but the reverse. It
would have been more direct, to have said that slaves might
be imported.  The inference to be drawn from its omission,
shows a determination not to recognize slavery by the use
of the term which ordinarily designates the relation. Circumlocution is resorted to in order to avoid it. The subject
matter of the migration or importation is "persons;" twice
so designated;.the further characteristics are not stated,
unless it should be said that " migration" is not an ordinary characteristic of property. Some animals ferne nature
have migratory habits, but the law does not recognize property in them. And yet this is one of the clauses cited, as
we have seen, in the " opinion of the court," to show that
the right of property in a slave is distinctly and expressly
affirmed in the Constitution.  And it is added,' The right
91 
92    SLAVERY IN THE TERRITORIES.
to traffic in it, like an ordinary article of merchandise and
property, was guaranteed to the citizens of the United States,
in every State that might desire it, for twenty years." This
is an utter perversion of the terms and spirit of the provision, and of the well-known history of its introduction.
It was introduced, on the allegation of some of the members
of the convention from South Carolina and Georgia, that
those States would not ratify the Constitution, unless some
provision was inserted restraining Congress from prohibiting the introduction of slaves; the powers about to be
granted to Congress, being broad enough for that purpose,
if left unrestricted. It was quite well understood that the
slave trade, whether "slavery"  did  or did  not imply
"property," was abhorred by the great majority of the
people, for which reason it was feared that Congress, if at
liberty, would prohibit it forthwith.   The threats of a
refusal to ratify produced a mere agreement not to interfere, for a term of years, with such action as any State
might take on the subject.  The  scope of the provision
shows that the subject matter was regarded with disfavor
by the majority; that it was admitted to save the Constitution; that it recognized nothing except a restraint upon
the power of Congress in that particular; without assuming
to give any legal character Whatever to any traffic, or to the
subject matter of any traffic, which might be prosecuted or
produced during the time of the restraint. To call this a
guaranty of the right to traffic is not a legitimate use of the
term.   If England  and  France  had, within the time,
denounced the traffic as piracy, and captured the vessels
engaged in it, there is nothing in this provision which would
show that Congress was bound to interpose and object. 
SLAVERY IN THE TERRITORIES.
The third provision having a special reference to slavery,
is the fugitive slave clause.  " No person held to service or
labor in one State, under the laws thereof, and escaping
into another, shall in consequence of any law or regulation
therein, be discharged from such service or labor; but
shall be delivered up, on claim of the party to whom such
service or labor may be due." This provision is cited in
the opinion of the court as distinctly and expressly affirming the right of property in a slave; and it is added, that
"the government in express terms is pledged to protect it
in all future time, if the slave escapes from his owner."
Now it is hardly necessary to say that there is nothing
whatever in this clause recognizing property in a slave, and
nothing pledging the government to protect any such property.  The clause recognizes the existence of the fact that
in some States persons are held to service and labor, from
which they may escape, and provides that they shall not be
discharged from it by the laws of the State to which they
escape, but shall be delivered up. Here, again, so far as
the Constitution indicates any thing upon the subject, it is
adverse to the idea of property in the master. The framers
of the Constitution understood the right use of words, and
would never have spoken of labor and service as being
"due" fromnt property. Whether it is due to one person
from another person through force or contract,-by reason
of a "patriarchal relation," or by apprenticeship, or peonage-and what is the extent and requirement of the servitude, the Constitution in no way indicates.  We  know
that it had reference to slavery, but for the rights of the
master and the obligations of the slave, we must seek elsewhere.   The Constitution has no recognition  upon that
93 
94    SLAVERY IN THE TERRITORIES.
subject, except that the master is entitled to the return of
the person-who has escaped.
It is quite apparent upon the face of all these clauses in the
Constitution, that so far from recognizing slaves as property,
there is a studied exclusion of any recognition of slavery
by name, and that when the framers were obliged to make
any provision having relation to it, they purposely resorted
to a periphrasis. And we have the evidence of Mr. Madison,
that in the convention he and Mr. Sherman, and it would
seem others also, objected to any acknowledgment or expres sion of an idea that there could be property in a man.
The clauses by which power is given to Congress to pro vide for suppressing insurrections, and by which the United
States are bound in certain contingencies, to protect the
several States against "domestic violence," comprehend,
doubtless, servile insurrections, but they have no exclusive
reference to them. So far as they may be considered, they
negative the idea of property. Property does not get up
insurrections.
Upo ithei whole, therefore, the assertion that the Consti tution recognizes slaves as property is wholly inexcusable.
Lastly.  If the Constitution, in any or all of the clauses
in which slavery is referred to, did recognize slaves as
property, it could fairly be construed only as a special
recognition for the precise purposes for which the recogni tion was made; and the conclusion that, therefore, the
* slave-holder had a constitutional right to carry his slaves
into a territory, and hold them there against the prohibition
of Congress, would be a perfect non sequitur. It would not
follow.
In terminating this discussion for the present, I take leave
to say, with all due respect, that this attempt to control the 
SLAVERY IN THE TERRITORIES.
power of Congress to restrain slavery in the territories, was
wholly unworthy the judicial tribunal from which it proceeded. Any one has the right to say that, because of
the immense public mischief which this gross usurpation
has occasioned, and the greater mischief which may yet
result from it. Mr. Jefferson's apprehension of danger from
the usurpations of the court are shown to have been the
result of a wise forecast. The public good imperatively
demands, at this time, that the question involved should be
subjected to a frank, honest and unhesitating examination;
and that the legitimate conclusions derived  from such
examination, should not be repressed by any extraordinary
delicacy or courtesy.
Cambridge, February 25, 1861.
95
i 
96    SLAVERY IN THE TERRITORIES.
Supplementary.
I wish to call one more witness respecting the true construction and meaning of a section of the "Personal Liberty
laws."
In a recent speech before the Committee on Federal Relations, Mr. Wendell Phillips endeavored to obviate and
answer the objections which had been made to those laws;
but I do not understand that he gives a different construction to any of the provisions from that which I have suggested. On the contrary, in relation to one part about
which there has been a difference of opinion, he is reported
to have said, " the statute provides that a man who undertakes voluntarily to help in the return of a fugitive slave
does so at his peril, and that if the alleged fugitive proves
not to be a slave, the person so voluntarily aiding shall be
punished."
Mr. Phillips is a lawyer, and in relation to this subject,
especially, should know what he is talking about.  Hle says
nothing about " knowledge' that the person is not a slave;
nor any thing about an " unlawful intent," further than the
intent voluntarily to help in the return of a person as a
fugitive, who is not a slave.
I admit, however, that Mr. Wendell Phillips cannot be
offered as a perfectly reliable witness, because in that same
speech he assumed to state that I said, of the time when
Sims' case was under consideration, that " it was an amusing
week;" whereas I said very nearly the reverse; to wit, that
*I 
SLAVERY IN THE TERRITORIES.
"an attempt to count the numerous motions, writs, warrants, and other legal proceedings, which were resorted to in
order to prevent his rendition, with a statement of the
nature and operation of them, might be more amusing and
instructive at this day, thani the proceedings themselves
were at the time when they occurred." (See page 30.)
There was nothing said, either expressly or by implication,
about " all amusing week."   If I were to say that Mr.
Wendell Phillips' account of his return to his house, followed by the crowd, on the day when he preached in the
Music Hall, might be more amusing than the actual transit
was at the time when it occurred; I certainly should not
even imply that he or any one else found it anl amusing
experience at that time.
If the legal maxim "falsus in uno, falsus in omnibus" is
to be applied, and this part of his statement detracts from
the credit which might otherwise attach to his construction
of the statute, I can only regret it.
J. P.
Cambridge.
13
97
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