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YALE UNIVERSITY
LIBRARY

Act of Congress of 1793.
An Act hespecting Fugitives from Justice, ano persons escapin(i
\^ fuom the service of their masters.
Sec. 1. Beit enacied by the Senate and House of Representatives of the United States of
America in Congress asscmOled, That whenever the executive authority nf any State in tlin
Union, or of either of the lerritories northwest or souih ofthe river Ohio, shall demand any persdii
as a f'igiiive fmm jiisiirc, ofthe executive authority of any Kuch state or territory to which such
person shall have fled, and shdll moreover produce the copy of an indictment found, or an affidavit
made before a magistrate of any state or territory as aforesaid, charging the person so demanded,
with having committed treason, felony or other crime, certified as authentic by the governor or
chief magistrate of the slate or territory from whence the person so charged, fled, it shall be the
duty ofthe executive authority ofthe state or territory to which such person shall have fled, to
cause him or her to be arrested and secured, and notice of the arrest to be given lo the executivi-
aulhority making such demand, or to the agent of such authority appointed to receive the fugitive,
and to cause the fugrtive to be delivered to such agent when he shall appear: Eut if no such agent
shall appear within six months from the time of the arrest, the prisoner may be discharged. And
all costs or expenses incurred in the apprehending, securing, and traofmiiting such fugitive to the
state or territory making such demand, shall be paid by such slate or territory.
Sec. 2. And be it further enacted, That any agent appointed as aforesaid, who shall receive
the fugitive into his custody, shall be empowered to transport him or her to the state or territory
from which he or she shall have fled. And if any person or persons shall by force set at liberty, or
rescue the fugitive from such agent while transporting, as aforesaid, the person or persons so
ofifending shall, on convictionj be fined not exceeding five hundred dollars, and be imprisoned not
exceeding one year.
Sec. 3. And be it also enacted, That when a person heldjto labor in any ofthe United States, or
in eitherof the territories onthe northwest or south ofthe river Ohio, under the laws thereof, shall
escape into any other ofthe said states or territory, the person to whom such labor or service muy
be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and
to take him or her before any judge of the Circuit or Disirict Courts of the United States, residing
or being within the state, or before any magistrate of a county, city or town corporate, wherein
such seizure or arrest shall be made, and upon proof to the satisfaction uf such judge or magistrate.
either by oral testimony or afBdavit taken befbre-and certified by a magistrate of any such, elate or
territory, that the person so seized or arrested, doth, under the laws of the state or territory from
which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of
such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which
shall be sufficient warrant for removing the said fu^ilii^.froBiiatiar, to the state or territory firom
which he or she fied.
Sac, 4. And be it further enacted, That any person who shall knowingly and willingly obstruct
or hinder such claimant, his agent or altorney when so arrested pursuant lo the authority herein
given or declared: or shall harbor or conceal such person after notice that he or she was a fugitive
fctmU^or, as aforesaid, shall, for either ofthe said offences, forfeit and pay the sum of five hundred
dollars. Which penalty may be recovered by and for the benefit of such claimant, by aciion of
debt, in any court proper to try the same ; saving moreover to the person claiming such labor or
service, hia right of action for or on account ofthe said injuries or either of them.
JONATHAN TRUMBULL,
Speaker of the House of Representatives.
JOHN ADAMS,
Vice President of the United Stales, and President of the Senate,
Approved February 12th, 1793. GEORGE WASHINGTON, President of the United States

ra.si

Act of Congress of 1850.
An Act to amend, and supplementary" to the Act, entitled '* Aw
Act respecting Fugitives from Justice, and persons escaping from
the service of their Masters," approved February 12, 1793.
Be it enacted by the Senate and House of Representatives of the United States of America
in Congress assembled, That the persons who have been, or may hereafter be, appointed commia-
sioners, in virtue of any act of Congress, by the circuit courts of the United Slates, and who, in
consequence of such appointment, are authorized to exercise the powers that any justice of the
peace or other magistrate of any ofthe United Stales may exercise in respect to offenders for any
crime or offi3nce against the United States, by arresting, imprisoning, or bailing the same under
and by virtue of the thirty-third section of the act of the twenty-fourth of September, seventeen
hundred and eighty-nine, entitled, " An act lo establish the judicial courts of the United Stales,"
shall be, and are hereby authorized and required lo exercise and discharge all the powers and du
ties conferred by this act. *
Sec. 2. And be it further enacted, That the superior court of each organized territory of the
United Stales shall have the same power to appoint commissioners lo take acknowledgments of
bail and aflidavit, and to take depositions of witnesses in civil causes, which is now possessed by
the circuit courts ofthe United Slates ; and all commissioners who sliall hereafter be appointed fpr
such purposes by the superior court of any organized territory of the United States shall possess
all the powfirs and exercise all the duties conferred by law upon the commissioners appointed by
the circuit courts of the United States for similar purposes, and shall moreover exercise and dis
charge all the powers and duties conferred by this act.
Sec. 3. And be it further enacted, That the circuit courts ofthe United States, and the sups"
lior courts of each organized territory of ihe United States, shall from lime to time enlarge the
number of commissioners, withriview to afford reasonable facilities to reclaim fugitives fromlabor,
and to the prompt discharge ofthe duties imposed by this act.
Sec. 4. And be il further enacted, That the commissioners above named shall have concurrent
jurisdiction with the judges of the circtiit and district courts ofthe United Slates, in their res
pective circuits and districts within the several States, and the judges ofthe soperior courts of the
Territories, severally and collectively, in term time and vacalior>; and shall grant certificates lo
3 ach claimants, upon satisfactory proof being made, vrith amhority to lake and remove such fugi
tives from service or labor, under the restrictions herein contained, lo the State or Territory from
v.'hich such parsons may have escaped or fled.
Sec. 5. And be it further tftacCed, That it shall be the duty of all marshals and deputy^ mar
shals to obey and execute all warrants and precepts issued under the provisions of this act, when
to them directed; and should any marshal or deputy marshal refuse to receive such warrant or
other process, when tendered, or to use all proper means diljgently to execute the same, he shall,
on conviction thereof, be fined in the sum of one thousand dollars lo the use of such claimant, on
the motion of such claimant, by the circuit or district coun for the disirict of such marshal; and
aller arrest of such fugitive by such marshal or his deputy, or whilst at any time in hia custody,
under.the provisions of this act, should such fugitive escape, whether with or without the assent of
such marshal or his deputy, such marshal shall be liable, on his ofiicial bond, to be prosecuted for
the benefit of such claimant, for the full value of the service or labor of said fugitive in the State,
Territory, or district whence he escaped; and the better to enable the said commissioners, when
thus appointed, to execute their duties faithfully and eflicienily, in conformity with the require-
me.ta of ifie constitution ofthe United Stales and of this act, they are hereby authorized and em
powered, within their counties respectively, lo appoint in writing under their hands, any one or
more suitable persons, from time lo time, to execute all such warrants and other processes may be
issued by them in the lawful performance of their respective duties; with an authority to such
commissioners, or the persons to be appointed by them, to execute process as aforesaid, to summon
and call to their aid the bystanders, or posse comitatus of the proper county, when necessary to
insure a faithful observance ofthe clause ofthe constitution referred lo, in conformity with the pro"
visions of this act; and all good citizens are hereby commanded to "aid and assist in the prompt and
efficient execution of this law, whenever their services may be requiretl, as aforesaid, for that pur
pose ; and said warrants shall run and be executed by saiU ofiicers anywhere in the Stale wilhin
which tliey are issued.

Sac. 6^. And be it further enacted. That v/hen a person held to service or labor in any Slate or
Territory of the United States has heretofore or shall hereafter escape inio another State or Terri
tory ofthe United States, the person or persons to whom such service or labor may be due, or his,
her, or their agent or altorney, duly authorized, by power of attorney, in writing, acknowledged
and certified under the seal of some legal ofiice or court of the State or Territory m which the same
maybe executed, may pursue and reclaim such fugitive person, either by procuring a warrant
from some one of the courts, judges, or commissioners aforesaid, of the proper circuit, district or
county, for the apprehension of such fugitive from service or labor, or by seizing and arresting
such fugitive where the same can be done without process, and by taking and causing such person
to be taken forthwith before such court, judge or commissioner, whose duty it shall be to hear and
determine tlie case of such claimant in a summar> manner; and upon salifafaetory proof being
made, by deposition or affidavit, in writing, to- be taken and certified by such court, judge, os
commissioner, or by other satisfactory lesiimony, duly taken and certified by some court, magis
trate, justice of the peace, or other legal officer authorized to administer an oath and take deposi
tions under the laws of the Slate or Territory from which such person owing service or labor may
have escaped, wiln a certificate of such magistracy or other authority, as aforesaid, with the seal
ofthe proper court or officer thereto attached, which seal shall be sufficient lo establish the compe
tency ofthe proof, and with proof, also by affidavit, of the identity ofthe person whose service or
labor is claimed to be due as aforesaid, that the person so arrested does in fact owe service or labor
to the person or persons claiming him or her, in the State or Territory from which such fugitive
may have escaped eis aforesaid, and that said person escaped, to make out and deliver lo^such"
claimant, his or her agent or aiiorney, a certificale setting forth the substantial facts as lo the ser
vice or labor due from such fugitive lo the claimant, and of his or her escape from the Slate or Ter
ritory in which such service or labor was due to the Slate or Territory in which he or she waa
arrested, with authority to such claimant, or his or her agent or altorney, to use such reasonable
force and restraint as may be necessary under the circumstances of the case, lo take and remove
such fugitive person back to the State or Territory from whence he or she may have escaped aa
aforesaid. In no trial or hearing under this act shall the testimony of such alleged fugitive be ad
mitted in evidence; and the certificates in this and'the first section mentioned shall be conclusive
ofthe right ofthe person or persons in whose favor granted to remove such fugitive to the State or
Territory from whicli he escaped, and shall prevent all molestation of said person orpersons by
any process issued by any court, judge, magistrate, or other person whomsoever.
Sec. 7. And be it further enacted, That any person who shall knowingly and wlllingry obstruct,
hinder, or prevent such claimant, his agent or altorney, or any person or persons lawfully assisting
him, her, or them, from arresting such fugitive from service or labor, either with or without pro
cess as aforesaid ; or shall rescue, or airempt to rescue, such fugitive from service or labor, from
the custody of such claimant, his or her agent or attornco', or other person or persons lawfully
assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared ; or
shall aid, abet, or assist such person, so owing service or labor as aforesaid, directiy or indirectly,
to escape from such claimant, his agent or attorney, or other person or persons, legally authorized
aa aforesaid'; or shall harbor or conceal such fugitive, so aa to prevent the discovery and arrest of
such person, after notice or knowledge ofthe fact that such person was a fugitive from service or
labor as aforesaid; shall, for either of said offences, be subject to a fine not exceeding one thousand
dollars, and imprisonment not exceeding six months, by indictment and conviction before the dis
trict court ofthe United States for the disirict in which such offence may have been committed, or
before the proper court of criminal jurisdiction, if committed within any one of ihe organized Ter
ritories of the United Stales; and shall moreover forfeit and pay, by way of civil damages to the
party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as
aforesaid, to be recovered by action of debt in any of the districf or territorial courts aforesaid, with
in whose jurisdiction the said offence may have been committed'.
Sec. 8. And be it further enacted, That the marshals, their deputies, and the clerks of the said
district and territorial courts, shall be paid for their services the like fees as may be allowed lo
them for similar services in other cases ; and where such services are rendered exclusively in the
arreat, custody, and delivery of the fugitive to the cl^iimani, his or her agent or attorney, or where
such supposed fugitive may be discharged out of custody for the want of sufficient proof as afore
said, then such fees are to be paid in the whole by such claimant, his agent or altorney ; and in all
cases where the proceedings are before a commissioner, he shall be entitled to a fee often dollars in
full for his services in each case, upon the delivery ofthe said certificate to ihe claimant, his or her
agent or attorney j or a fee of five dollars in cases where the proof shall not, in the opinion of such

cominlssioner, wai'rant such certificate and delivery, inclusive of all services incident lo such arreat
and examination, to be paid in either case by the claimant, his or her agent or altorney. The per*
eon or persons authorized lo execute ihe process to be issued by such commissioners for the arreat
and detention of fugitives from service or labor as aforesaid, shall also be entitled to a fee of five
dollars each for each person he or they may arrest and take before any such commissioner aa afore-
aaid at the instance and request of such claimant, with such other fees as may be deemed reasona
ble by such commissioner for such other additional services as may be necessarily performed by him
or them : such as attending to the examination, keeping the fugitive in custody, and providing
him with food and lodging during his detention, and until the final determination of such comtnias-
ioner : and in general for performing such other duties as may be required by such claimant, his or
her attorney or agent, or commissioner in the premises ; such fees lo be made up in conformity
with the fees usually charged by the officers of the courts of justice within the proper district or
county, as near as raay be practicable, and paid by such claimants, their agents or attorneys,
whether such supposed fugitive from service or labor be ordered to be delivered to such claimanta
by the final determination of such commissioners or not.
Sec 9. And be it further enacted, That upon affidavit made by the claimant of such fugitive,
his agent or attorney, after such certificate has been issued, that he has reason to apprehend that
such fugitive will be rescued by force from his or thuir possession before he can be taken beyond
the limits of the State in which the arrest is made, it shall be the duty ofthe officer making the
arrest lo retain such fugitive in his custody, and lo remove him to the Stale whence he fled, and
there to deliver him to said claimant, his agent or altorney. And to this end the officer aforesaid
is hereby authorized and required to employ so many persons as he may deem necessary, to over
come such force, and to retain them in his service so long as circumstances may require; the said
oflficer and his assistants, while so employed, to receive the same compensation, and to be allowed
the same expenses as are now allowed by law for the transportation of criminals, to be cerlified by
the judge ofthe district within which the arrest is made, and paid oul ofthe treasury ofthe United
States. Sec. 10 And be it further enacted, That when any person held to service or labor in any State
or Territory, or in the District of Columbia, shall escape therefrom, the party to whom such service
or labor shall be due, his, her, or their agent or attorney, may apply lo any court of record therein,
or judge thereof in vacation, and make satisfactory proof to such court, or judge in vacation, of
the escape aforesaid, and that the person escaping owed service or labor lo such party. Whereupon
the court shall cause a record to be made ofthe mailers so provedj and also a general description of
the person so escaping, with such convenient certainty as may be ; and a transcript of such record
authenticated by the attestation ofthe clerk, and ofthe seal of the said court, being produced in
any other State, Territory, or District in which the person so escaping may be found, and being
exhibited to any judge, commissioner, or other officer authorized by the law of the United Stales
lo cause persons escaping from service or labor to be delivered up, shall be held and taken lo be
full and conclusive evidence ofthe fact of escape, and that the service or labor ofthe person escap
ing is due to the party in such record mentioned. And upon the production by the said parly of
other and further evidence, if necessary, either oral or by affidavit, in addition to what is coniained
in the said record, of the identity of the person escaping, he or she shall be delivered up to tha
claimant. And the said court, commissioner, judge, or other person authorized by this act to grant
certificates to claimants of fugitives, shall, upon the production ofthe record and other evidences
aforesaid, grant to such c!aimant a certificale of his right to lake any such person identified and
proved to be owing service or labor as aforesaid, which certificale shall authorize such claimant to
seize or arrest and transport such person to the State or Territory from which he escaped: Pro
vided, That nothing herein coniained shall be construed as requiring the production of a transcript
of such record as evidence as aforesaid ; but in ita absence, the claim shall be heard and determined
upon other satisfactory proofs competent in law. HOWELL COBB,
Speaker of the House of Representatives.
WILLIAM R. KING,
President of the Senate, pro tempore.
Approved September 18th, 1800. MILLARD FILLMORE.

A DEFENCE

FOR

FUGITIVE SLATES,

AGAINST THE ACTS OF CONGRESS OF FEBRUARY 12, 1793, AND
SEPTEMBER 18, 1850^

BY LYSANDER SPOONER.
Ill

BOSTON:
BELA MARSH, 25 CORNHILL,
1850.

Entered according to Act of Congress, in the year 1850,
By LYSANDER SPOONER, '
in the Clerk's Office of the District Court of Massachusetts.

CONTENTS.

CHAPTER I.
PAGE.
Unconstitutionality of the acts of Congress of 1793 and 1850, . . 5
CHAPTER II.
The Right of Resistance, and the Right to have the Legality of that
Resistance judged of by a Jury,  27
CHAPTER III.
Liability of United States Officers to be punished, under the State
Laws, for executing the acts of 1793 and 1850, ... 43
Appendix A.
Neither the Oonstitution, nor either of the Acts of Congress of 1793
or 1850, requires the Surrender of Fugitive Slaves, ... 50
Appendix B.
Authorities for the Right of the Jury to judge of the Law, . . 61
Appendix C.
Mansfield's argument against the Right of the Jury to judge of the-
Law,  67
Appendix U,
Effect of Trial by Jury, in nullifying other Legislation than the
Fugitive Slave Laws  69

DEFENCE FOR FUGITIVE SLAVES.

CHAPTER I.
Unconstitutionality of the Ads of Congress of 1793 and 1850.
SECTION 1 .
Admitting, for the sake of the argument — what is not true in
fact — that the words, "person held to service or labor," are a
legal description of a slave, and that the clause of the Consti
tution in reference to such persons, and the Act of Congress of
1793, and the supplementary Act of 1850, for carrying that
clause into effect, authorize the delivery of fugitive slaves to
their masters — said acts (considered as one,) are nevertheless
unconstitutional, in at least seven particulars, as follows: —
1. They authorize the delivery ofthe slaves without a trial
by jury.
2. The Commissioners appointed by the Act of 1850, are
not constitutional tribunals for the adjudication of such cases.
3. The State magistrates, authorized by the Act of 1793, to
deliver up fugitives from service or labor, are not constitution
al tribunals for that purpose.
4. The Act of 1850 is unconstitutional, in that it authorizes
cases to be decided wholly on ex parte testimony.
5. The provisions of the Act of 1850, requiring the exclu
sion of certain evidence, are unconstitutional.
6. The requirement of the Act of 1850, that the cases be
adjudicated " in a summary manner," is unconstitutional.
1

7. The prohibition, in the Act of 1850, of the issue of the
writ of Habeas Corpus for the relief of those arrested under
the act, is unconstitutional.
These several points I propose to establish.
SECTION 2.
Denial of a Trial by Jury.*
Neither the Act of 1793, nor that of 1850, allows the alleged
slave a trial by jury. So far as I am aware, the only argu
ment, worthy of notice, that has ever been offered against the
right of an alleged fugitive slave to a trial by jury, is that
given by Mr. Webster, in his letter to certain citizens of New
buryport, dated May 15, 1850, as follows : —
"Nothing is more false than that such jury trial is de
manded, in cases of this kind, by the constitution, either in its
letter or in its spirit. The constitution declares that in all
criminal prosecutions, there shall be a trial by jury; the re
claiming of a fugitive slave is not a criminal prosecution.
" The constitution also declares that in suits at common
law, the trial by jury shall be preserved ; the reclaiming of a
fugitive slave is not a suit at the comraon law ; and there is no
other clause or sentence in the constitution having the least
bearing on the subject."
In saying that " the reclaiming of a fugitive slave is not a
criminal prosecution," Mr, Webster is, of course, correct. But
in saying that "the reclaiming of a fugitive slave is not a suit
at the common law," within the meaning of the constitutional
amendment, that secures a jury trial " in suits at common
law," he raises a question, which it will require something
more than his simple assertion to settle.
* The argument on this point is substantially the same as one embraced in the Let
ter of Hon. Horace Mann, published in the Boston Atlas, June 10, 1850. Although the
argument implies no merit on my part — ^it being made np of definitions given by the
Supreme Conit^it may yet be proper for me — by way of avoiding the appearance of
plagiarism — to say that it was published in Burritt's Christian Citizen of June Sth,
1860, two days before the publication of Mr. Maim's.

To determine whether the reclaiming of a fugitive slave is a
" suit at comraon law," within the raeaning of the above
amendraent to the constitution, it is only necessary to define
the terras " suit" and " coramon law," as used in the amend
raent, and the term " claim," as used in that clause of the
constitution, which provides that fugitives frora service and
labor " shall be delivered up on claim of the person to whom
such service or labor may be due."
All these terms have been defined by the Supreme Court of
the United States. Their definitions are as follows :
In the case of Prigg vs. Pennsylvania, the court say —
" He (the slave) shall be delivered up on claim of the party
to whom such service or labor raay be due. * * * A claim,
is to be made. What is a claim? It is, in a just juridical
sense, a demand of some raatter, as of right, made by one per
son upon another, to do, or to forbear to do, some act or thing
as a matter of duty. A more limited, but at the sarae tirae an
equally expressive definition was given by Lord Dyer, as
cited in Stowell vs. Zouch, Plowden 359 ; and it is equally ap
plicable to the present case ; that ' a claira is a challenge by a
man of the propriety or ownership of a thing which he has not
in his possession, but which is wrongfully detained from him.'
The slave is to be delivered up on the claim." — 16 Peters
614^15. In Cohens vs. Virginia, the court say :
" Wh^it is a suit? We understand it to be the prosecution,
or pursuit, of some claim, demand, or request. In law lan
guage, it is the prosecution of some deraand in a court of jus
tice. ' The remedy for every species of wrong is,' says Judge
Blackstone, ' the being put in possession of that right whereof
the party injured is deprived.' The instruments whereby this
remedy is obtained, are a diversity of suits and actions, which
are defined by the Mirror to be ' the lawful demand of one's
right ;' or, as Bracton and Fleta express it, in the words of
Justinian, 'jusprosequendiinjudicioquod alicui debetur,' — (the
form of prosecuting in trial, or judgment, what is due to any
one.) Blackstone then proceeds to describe every species of
remedy by suit; and they are all cases where the party sueing
claims to obtain something to which he has a right.
" To commence a suit, is to demand something by the insti
tution of process in a court of justice ; and to prosecute the

8
suit, is, according to the common acceptation of language, to
continue that demand." — 6 Wheaton 407-8.
In the case of Parsons vs. Bedford et. al., the court define
the term "common law," with special reference to its meaning
in the amendment to the constitution, which secures the right
of trial by jury " in suits at common law." The court say :
" The phrase ' comraon law,' found in this clause, is used in
contradistinction to equity, and admiralty, and raaritime juris
prudence. The constitution had declared in the third article,
' that the judicial power shall extend to all cases in Jaw and
equity arising under this constitution, the laws of the United
States, and treaties raade or which shall be made under their
authority, &c., and to all cases of admiralty and raaritime ju
risprudence. It is well known that in civil causes, in courts of
equity and admiralty, juries do not intervene, and that courts
of equity use the trial by jury only in extraordinary cases to
inforra the conscience of the court. When, therefore, we find
that the araendraent requires that the right of trial by jury
shall be preserved in suits at comraon law, the natural conclu
sion is, that this distinction was present to the minds of the
framers of the amendraent. By common law, they meant what
the constitution denominated in the third article, ' law ;' not
merely suits which the convmon law recognized among its old
and settled proceedings, but suits in which legal 7-ights were to
be ascertained and determined, in contradistinction to those where
equitable rights alone were recognized, and equitable rerjiedies
were administered ; or where, as in ihe admiralty, a mixture of
public law, and of maritime law and equity was often found in
the same suit." * * * *
" In a just sense, the amendment, then, may be construed to
embrace all suits which are noi of equity and admiralty juris
prudence, whatever may be the peculiar form which they may
assume to settle legal rights." — 3 Peters, 446.
Such are the definitions given by the Supreme Court of the
United Slates, of the terms "claim," "suit," and "coraraon
law," as used in the constitution and araendment. If these
definitions are correct, they cover the case of fugitive slaves,
If they are not correct, it becomes Mr. Webster to give some
reason against them besides his naked assertion, that " the re
claiming of a fugitive slave is not a suit at the common law."
Mr. Webster is habitually well satisfied with the opinions of

9
the Supreme Court, when they make for slavery. Will he fa
vor the world with his objections to them, when they make for
liberty 1
Perhaps Mr. Webster will say that, in the case of a fugitive
slave,- the matter "in controversy," is not "value" — to be
measured by " dollars," but freedora. But it certainly does
not lie in the moulh of the slaveholder, (however it might in
the mouth of the slave,) to make this objection — because the
slaveholder claims the slave as property — as "value" belong
ing to himself. SECTION 3.
The Commissioners, authorized by ihe Act of 1850, are not
Constitutional Tribunals for the performance of the duties
assigned them.
The office of the Commissioners, in delivering up fugitive
slaves, is a. judicial office. They are to try " suits at coramon
law," within the meaning of the constitution, as has just been
shown. They are to give, not only judgraent, but final judg
ment, in questions both of property, and personal liberty — (of
property, on the part of the complainant, and of liberty, on the
part of the alleged slave.) Indeed, the Supreme Court have
decided that the office of delivering up fugitive slaves is a ju
dicial one. Say they,
" It is plain, then, that where a claim is made by the owner,
out of possession, for the delivery of a slave, it raust be raade,
if at all, against some other person ; and inasmuch as the right
is a right of property, capable of being recognized and asserted
by proceedings before a court of justice, between parties ad
verse to each other, it constitutes, in the strictest sense, a con
troversy between the parties, and a case arising under the con
stitution of the United States ; within the express delegation of
judicial power given by that instrument." — Prigg vs. Pennsyl
vania, 16 Peters, 616.
These Commissioners, therefore, are "judges," within the
meaning of that term, as used in the constitution. And being
1*

10
judges, they necessarily come within that clause of the con
stitution, (Art. 3, Sec, 1,) which provides that " The judges,
both of the Supreme and inferior courts, shall hold their ofiices
during good behavior, and shall, at stated times, receive far
their services, a compensation, which shall not be diminished
during their continuance in office."
The object of this provision of the constitution, in requiring
that all "judges " shall receive a fixed salary, or "a compen
sation, at stated times," instead of receiving their pay in the
shape of fees in each case — thus raaking its aggregate amount
contingent upon the number of cases they may try — was to
secure their impartiality and integrity, as between the parties
¦whose causes should corae before them. If a judge were to
receive his compensation in the shape of fees for each case, he
would have a pecuniary inducement to give a case to the
plaintiff, without regard to its raerits. And for these reasons.
Plaintiffs have the privilege of selecting their own tribunals.
If a particular judge be known as uniformly or usually giving >
cases to plaintiffs, he thereby induces plaintiffs x6 bring their
cases before him, in preference to other tribunals. He thus
tries a larger nuraber of cases, and of course obtains a larger
amount of fees, than he would if he were to decide impartially.
He thus induces also the institution of a larger nuraber of suits
than would otherwise be instituted, because if plaintiffs are
sure, or have a reasonable probability, of gaining their causes,
without regard to their raerits, they will of course bring many
groundless and unjust suits, which otherwise they would not
bring. It is obvious, therefore, that the payraent of judges by the
way of fees for each case, has a direct tendency to induce
corrupt decisions, and destroy impartiality in the administra
tion of justiee.J And the constitution — by requiring irapera-
tively that judges " shall receive " a fixed salary, or " a com
pensation at stated times," has in reality provided that the
rights of no man, whether of property or liberty, shall ever be
adjudicated by a judge, who is liable to be influenced by the

11
pecuniary temptation to injustice, which is here guarded
against. The legal objection I now make is not that the Commis
sioners or judges are paid double fees for deciding against
liberty, or for deciding in favor of the plaintiffs — (a provision
more infamous probably, for the pay of the judiciary, than
was ever before placed upon a human statute book) — but it is
that they are paid in fees at all ; that they receive no " com
pensation at stated times," as required by the constitution;
that their pay is contingent upon the nuraber of cases they can
procure to be brought before them ; in other words, contingent
upon the induceraents, which, by their known practice, they
raay offer to the clairaants of slaves to bring their cases before
thera. The arguraent on this point, then, is, that inasrauch as the
constitution imperatively requires that "judges shall receive, at
stated times, a compensation for their services," and inasmuch
as the Act of 1850 raakes no provision for paying these Cora
raissioners any " compensation at stated tiraes," they are not
constitutional tribunals, and consequently, have no authority
to act as judges or commissioners in execution of the law ; and
their acts and decisions are of necessity binding upon nobody.
In short, a Coraraissioner, instead of being one of the judges
of the United States, paid by the United States, is, in law, a
mere hired kidnapper, eraployed and paid by the slave-hunter
— and every body has a right to treat him and his decisions
accordingly.*

* The Commissioners are probably unconstitutional judicial tribunals for another
reason, to wit, that the law, which authorizes their appointment, makes no provision
that they " shall hold their offices during good behavior," as the constitution requires
that "judges " shall do. The law says nothing of the tenure, by which they shall
hold their offices ; it simply provides " That it shall be lawful for the Circuit Court of
the United States, to be holden in any district, * * to appoint such and so many dis
creet persons, in different parts of the district, as such court shall deem necessary, to
take acknowledgments of bail and affidavits," &o.
Stat. 20th Feb., 1812, V. S. Stat, at Large, Vol. 2, p. 678.
I imderstand the general opinion to be that, under this law, the commissioners are
entitled to hold their offices only during the pleasure of the courts that appoint them.

12

SECTION 4.
The State Magistrates, authorized by the Act of 1793, to de
liver up fugitives from service or labor, are not constitutional
tribunals for that purpose.
The Act of 1793 requires the State magistrates — " any magis
trate of a county, city, or town corporate " — to deliver up
fugitives from service or labor. This provision is plainly un
constitutional, for several reasons, to wit :
1. The Staie Courts are not " established " by Congress,
as the constitution expressly requires that all courts shall be,
in whora " the judicial power of the United States shall be
vested." 2. The "judges" of the State courts do not "at stated
times, receive for their services a compensation," (from the
United States,) as the constitution requires that the judges of
the United States shall do.
3. The judges of the Statecovtrts do not receive their offices
or appointments in any of the modes prescribed by the consti
tution. The president does not " norainate," nor does he "by
and with the consent of the Senate, appoint " them to their
offices ; nor is their " appointraent vested in the president alone,
in the courts of law, or in the heads of departments."
4. The State magistrates are not commissioned by the
President of the United States, as the constitution requires that
" all officers of the United States " shall be.
5. The State judges are not amenable to the United States
for their conduct in their offices ; they cannot be impeached, or
removed from their offices, by the Congress or the government
of the United States.
Por these reasons the Act of 1793, requiring the State mag
istrates to deliver up fugitives, is palpably unconstitutional.
Indeed the Supreme Court of the United States have decided
as much ; for they have decided that,
" Congress cannot vest any portion of the judicial power of

13
the United States, except in courts ordained and established
by itseU. "—Martin vs. Hunters, Lessee, 1 Wheaton 330.
Also, "The jurisdiction over such cases, (cases arising under
the constitution, laws, and treaties ofthe United Slates,) could
not exist in the State courts previous to the adoption of the
constitution, and it could not afterwards be directly conferred
on them; for the constitution expressly requires the judicial
power lo be vested in courts ordained and established by the
United States."— (Same, 2j. 335.
But although this act is thus palpably unconstitutional, the
Suprerae Court, in the Prigg case, with a corruption, that
ought to startle the nation, and shake their faith in all its de
cisions in regard to slavery, declared that " no doubt is enter
tained by this court that State magistrates may, if ihey choose,
exercise that authority, unless prohibited by State legislation."
—16 Peters, 622.
Thus this court, who knew — as the sarae court had pre
viously determined — that Congress^could confer upon the State
magistrates no "judicial power" whatever, nevertheless at
tempted to encourage thera to assume the office of judges of
the United States, and use it for the purpose of returning men
into bondage — under the pretence that an act of Congress, ad
mitted io be unconstitutional, would yet be a sufficient justifica
tion for the deed.
That court knew perfectly well that a law authorizing a
claimant to arrest a raan, on the allegation that he was a slave,
and then take hira before the first man or woman he might
happen to raeet in the street, and authorizing such man or
woman to adjudicate the question, would be equally constitu
tional with this act of 1793, and would confer just as much
judicial authority upon such raan or woraan, as this act of
1793 conferred upon the State magistrates ; and that it would
be just as lawful for such man or woman to adjudicate the
case of an alleged slave, and return him into bondage, under
such a law, as it is for a State magistrate to do it under the
law of 1793.
It is worthy of remark, that the sarae judge — and he a
northern one, (Story,) — who delivered the opinion, declaring

14
that " Congress cannot vest any portion of the judicial power
of the United States, except in courts ordained and established
by itself," delivered the other opinion declaring that "no doubt
is entertained by this court that State magistrates may, if they
choose, exercise that authority, unless prohibited by Stale leg
islation." It is also worthy of notice, that every one of the definitions .
before given, (Sec. 2,) of "claim," "suit," and "common
law," — from which it appears that a "claim" for a fugitive
slave is a "suit at comraon law," within the meaning of the
constitution, and must therefore be tried by a jury — were taken
from opinions dehvered in the Suprerae Court by Story. He
also, in the Prigg case, said that a claim for a fugitive slave
"constitutes, in the strictest sense, a controversy hetvf een the
parties, and a case 'arising under the constitution of the United
Slates,' within the express delegation of judicial power given
by that instruraent." And yet this same Story, in his Com
mentaries on the Constitution, says that this " suit at common
law," this "controversy between the parties," this "case aris
ing under the constitution, within the express delegation of
judicial power given by that instrument," has no more claim to
a. judicial investigation on its merits, than is had when a fugi
tive from justice is delivered up for trial. He says,
" It is obvious that these provisions for the arrest and re
moval of fugitives of both classes contemplate summary minis
terial (not judicial, hnt tninisterial — that is executive) proceed
ings, and not the ordinary course of judicial investigations, to
ascertain whether the complaint be well founded, or the claim
of ownership be established beyond all legal controversy. In
cases of suspected crimes the guilt or innocence of the party is
to be raade out at his trial ; and not upon the preliminary in
quiry, whether he shall be delivered up. All that would seem
in such cases to be necessary is, that there should be prima
facie evidence before the executive authority to satisfy iis
judgment, that there is probable cause to believe the party
guilty, such as upon an ordinary warrant would justify his
commitment for trial. And in cases of fugitive slaves there
would seem to be the same necessity for requiring only prima
facie proofs of ownership, without putting the party, (the
claimant,) to a formal assertion of his rights by a suit at law."
3 Story's Commentaries, 677-8.

15
The Act of 1850 is unconstitutional for the same reason as
is the Act of 1793; for the Act of 1850 (Sec. 10,) authorizes
any State Court of record, or judge thereof in vacation, to take
testiraony as to the two facts ofa man's being a slave, and of
his escape; and it provides that any testimony which shall be
"satisfactory" to such State "court, or judge thereof in vaca
tion," on those two points, "shall be held and taken to be full
and conclusive evidence " of those facts, by the United States
" court, judge, or commissioner," who may have the final dis
posal of the case.
It thus authorizes the State court, or judge thereof in vaca
tion, absolutely, and without appeal, to try those two points in
every case — leaving only the' single point of identity to be tried
by the United States "court, judge, or commissioner."
Now it is as clearly unconstitutional for Congress to give, to
a State court or judge, final jurisdiction, (or even partial juris
diction,) of two-thirds of a case, (that is, of two, out of the
only three, points involved in the case,) as it would be to give
them jurisdiction of the whole case.
I suppose the ground, if any, on which Congress would pre
tend to justify this legislation, is the following provision of the
constitution — (Art. 4, Sec. 1.)
" Full faith and credit shall be given in each State to the
public acts, records, and judicial proceedings of every other
Stale. And the Congress may by general laws prescribe the
manner in which such acts, records and proceedings shall be
proved, and the efi'ect thereof."
But " the public acts, records, and judicial proceedings" of
a State, which are here spoken of, are only "the public acts,
records, and judicial proceedings," done, raade, and had, by
State ofiicers, under ihe laws of ihe State. A Slate judge is not
an officer of the Staie, when exercising an authority conferred
upon him by the United Stales; nor are his " acts, records, or
judicial proceedings," the " acts, records, or judicial proceed
ings " of the State — but only of the United States.* It is only
* In truth, " the acts, records, and judicial proceedings " of a State judge, when ex
ercising a judicial authority purporting to 'be conferred upon him by the United States,
are not even the "acts, records, or judicial proceedings" ofthe United 8latei—{ov the

16
when acting as an officer of the State, under the laws of the
State, that his "acts, records, and judicial proceedings" are
the " acts, records, and judicial proceedings " of the Slate.
Congress seera to have been inspired with the idea that, al
though they could not directly confer upon a State judge that
"judicial power," which the constitution requires to be vested
only in judges of the United States, yet, if, by any unconstitu
tional law, they could but induce a State judge to exercise
" the judicial power of the United States," so far as to hear
and determine upon the evidence, (in a case arising under the
constitution and laws of the United Slates,) and makearecord
of his proceedings and determination, they (Congress) could
then, by virtue of this article of'the constitution, "prescribe
the manner in which such records and Judicial proceedings
shall be proved, and the efiect thereof" (before a court of the
United States,) as if they were really the " records and judi
cial proceedings " of the State itself
If this wonderfully adroit process were to succeed, Congress
would be able to transfer all thereat "judicial power ofthe
United States," to the State " courts, or judges thereof in va
cation " — leaving the United States courts nothing to do but to
receive the "records" made by these State courts and judges,
and give them such " efiect " as Congress raight prescribe.
But this remarkable contrivance must fail of its purpose,
unless it can be shown that the "acts, records and judicial
proceedings," which may be had and made by a State "court
of record, or judge thereof in vacation," — not by virtue of any
authority granted them by the State, but only by virtue of an
unconstitutional law of Congress— are really the "acts,
records, and judicial proceedings" of the State itself
The motive of this atterapt, on the part of Congress, to trans
fer to the State courts and judges full and final jurisdiction
over the two facts, that a man was a slave, and that he
escaped, is doubtless to be found in the statement made by
United States have no constitutional power to confer any suoh authority upon him-
and consequently his acts, in execution of such an authority, are legally nothing more
than his private acts as an individual.

17
Senator Mason, of Virginia, the Chairman of the Coraraittee
that reported the bill, and the principal charapion of the bill in
the Senate. In a speech upon the bill, on the 19th day of Au
gust, 1850, (as reported in the Washington Union and Intelh-
gencer,) in describing " the actual evils under which the slave
States labor in reference to the reclamation of these fugitives,"
he said —
" Then again, it is proposed, (by one of the opponents of the
bill,) as a part of the proof to be adduced at the hearing after
the fugitive has been recaptured, that evidence shall be brought
by the claimant to show that slavery is established in ihe
State from which the fugitive has absconded. Now, this very
thing, in a recent case in the city of New York, was required
by one of the judges of that State, which case atlraxiled the at
tention of the authorities of Maryland, and against which they
protested, because of the indignities heaped upon their citizens,
and the losses which they sustained in that city. In that case,
the judge of the State court required proof that slavery was
established in Maryland, and went so far as to say that the
only mode of proving it was by reference to the statute book.
Such proof is required in the Senator's amendment; and if he
means by this that proof shall be brought that slavery is estab
lished by existing laws, it is impossible to comply with the
requisition, for no such proof can be produced, I apprehend, in
any of the slave States. / am noi aware that there is a single
State in which the institution is established by positive law. On
a forraer occasion, and on a different topic, it was my duty to
endeavor to show to the Senate that no such law was neces
sary for its establishment ; certainly none could be found, and
none was required in any ofthe States ofthe Union."
It thus appears by the confession of the champion of the bill
hiraself, that every one of these fugitive slave cases would
break down on the first point to be proved, to wit, that the al
leged fugitive was a slave— if that fact were left to be proved
before a court that should require the clairaant to show any
law which made the man a slave. It was therefore indispens
able that this fact should be proved only to the satisfaction of
one of those State judges, who have acquired the habit of de
ciding men to be slaves, without any law being shown for it.
2

18
SECTION 5.
Ex parte Evidence.
The Act of 1850 is unconstitutional, in that it authorizes cases
to be decided wholly on ex parte testimony.
The 4th Section of the act makes it the "duty "of the
"court, judge, or comraissioner," lo deUver up an alleged fu
gitive, " upon satisfactory proof being made by deposition or
affidavit, in writing, * * or by other satisfactory testimony,
* * and with proof also by afiidavii of the identity of the per
son," &.C.
It thus allows the whole proof to be raade by "affidavit"
alone, which is wholly an ex parte affair. And if thi^ testi
mony be "satisfactory" to the court, judge, or comraissioner,
they are authorized to decide the case upon that testimony
alone, without giving the defendant any opportunity to con
front or cross-examine the witnesses of the claimant, or to offer
a particle of evidence in his defence.
The 10th Section of the act is of the same character as the
4th, except thai ii is worse. It first provides that a claimant —
by a wholly ex parte proceeding — raay make "satisfactory
proof" — to " any court of record, or judge thereof in vaca
tion," in the " Slate, Territory, or District," from which a fu
gitive is alleged to have escaped — that a person has escaped,
and that he owed service or labor to the party claiming him.
It then, not merely perraits, but imperatively requires, that this
ex parte evideijce, when a transcript thereof is exhibited in the
State where the alleged fugitive is arrested, " shall be held and
taken io be full and conclusive evidence of the fact of escape,
and that the service or labor of the person escaping is due to
the party in the record raentioned."
It thus absolutely reg'twres, that on the production of certain
ex parte evidence by the clairaant, the court, judge, or com
missioner shall decide these two points — the fact of escape,
ahd that the fugitive owed service or labor to the claimant —
against the defendant, without giving him a hearing.

19
It then permits the judge to decide the only remaining point,
to wit, ihe identity of the person arrested with the person es
caped — upon the sarae testimony. But it allows hira to receive
" other and further evidence, if necessary," on this single point
of identity.
Thus this section imperatively prescribes that, at the pleas
ure of the claimant, certain ex parte testimony " shall be held
and taken to be full and conclusive evidence," on two, out of
the three, points involved in the case. And on the only re
raaining point, it requires "other and further evidence," only
on the condition that it shall be "necessary" in the mind of
the judge or commissioner. And if " other and further evi
dence" be "necessary," that also may be "either oral, or by
afiidavii," which last is necessarily ex parte.
Thus the act authorizes the whole case to be decided wholly
on ex parte evidence, if such evidence be "satisfactory" tothe
commissioner; and, at the option of the claimant, it makes it
obligatory upon the comraissioner to receive such testimony
as " full and conclusive evidence," on two, out of the only
three, points involved in the case.
There is not a syllable in the whole act that suggests, im
plies, or requires that the individual, whose liberty is in issue,
shall be allowed the right to confront or cross-examine a single
opposing witness, or even the right to offer a syllable of re
butting testimony in his defence.
Now, I wish it to be understood that I am not about to ar
gue the enormity of such an act, but only its unconstitution
ality. The question involved is, whether Congress have any con
stitutional power to authorize courts lo decide cases, "suits
at coramon law," or any other cases, on ex parte testimony
alone? The constitution declares that "the judicial power shall
extend to all cases in law and equity, arising under this con
stitution, the laws of the United States, * * to controversies
to which the United Stales shall be a party ; to controversies
between two or more States, between a State and citizens of
another State, between citizens of different States," &c., (fcc.

20
What then is a "case?" "Case" is a technical term in
the law. It is a "suit," a "controversy" before a judicial tri
bunal, or umpire. The constitution uses the three terms,
"case," "suit," and "controversy," as synonymous with each
other. They all imply at least two parlies, who are an
tagonists to each other. There can be no "controversy,"
where there is but one party. Nor can there be a " con
troversy " where but one of the parties is allowed to be heard.
Say the Supreme court, " A case in law or equity consists
of the right of one party, as well as of the other."
Cohens vs. Virginia, 6 Wheaton 379.
What is this " right " which is at the same time " the right
of one party, as well as of the other?" It cannot be a right
to the thing in controversy ; because that can be the right of
but one of them. The "right," therefore, that belongs to
" one party as well as the other," can be nothing less than the
equal right of each party to produce all the evidence naturally
applicable to sustain his own claim, and defeat that of his ad
versary ; to have that evidence weighed impartially by the tri
bunal that is to decide upon the facts proved by it ; and then
to have the law applicable to those facts applied to the deter
mination ofthe controversy.
It has already been shown that the claim to a fugitive slave,
is a " case," " suit," and "controversy," arising under the
constitution of the United States; and as such, to use the lan
guage of the court, is "within the express delegation of_;w-
dicial power given by that instrument."
The question now arises, what is " ihe judicial power of the
United States?"
I answer, it is the power to take judicial cognizance or ju
risdiction of, to try, adjudicate, and determine, all "cases,"
"suits," and "controversies, arising under the constitution and
laws of the United Slates," &c.
The judicial power, therefore, being power io try cases, ne
cessarily includes a power to determine what evidence is appli
cable io a case, and to admit, hear, and weigh all the evidence
that is applicable to it. A case can be tried only on the evi-

21
dence presented. In fact, the evidence constitutes the case to
be tried. If a part only of Ihe evidence^ that is applicable to
a case — or that constitutes the case — or that is necessary for
the discovery of the truth ofthe case — be presented, weighed,
and tried, the case really in controversy between the parties is
not tried, but only a fictitious one, which Congress or the courts
have arbitrarily substituted for the true one. If, whenever a
case, arising under the constitution or laws of the United
States, is instituted by one indivdual against another, Con
gress have constitutional power to substitute a fictitious case
for the real one, and to require that the real one abide the re
sult of the fi(^titious one, they have power to authorize cases
to be tried on ex parte testimony — otherwise not. In what
clause of the constitution such a power is granted lo Congress,
no one, so far as I ara aware, has ever deigned to tell us.
No one will deny that the question, what evidence is ad
missible in a case, or raakes part of a case, or is applicable to
a case, is, in its nature, a judicial question. And if it be, in
its nature, a judicial question, the power to determine it is a
part of " the judicial power of the United States," and conse
quently is vested solely in ihe courts. And Congress have
clearly as rauch right to usurp any other "judicial power"
whatever, as to usurp the power of deciding what evidence is.
and what is not, admissible — or what evidence shall, and
what evidence shall not, be admitted.
As a general rule, the decision of these questions, of the ad-
raissibility of evidence, is left to the courts. But legislatures
are sometimes so ignorant or corrupt as to usurp this part of
"the judicial power;" and the courts are always, I believe,
ignorant, servile, or corrupt enough to yield to the usurpation.
The simple fact that all questions of the admissibility of
evidence are, in their nature, judicial questions, proves that the
power of deciding them, is a part of "the judicial power of the
United States ;" and as all "the judicial power of the United
States " is vested in the courts, it necessarily follows that Con
gress cannot legislate at all in regard to it, either by prescrib
ing what evidence shall, or what shall not, be adinitted, in
2*

22
any case whatever. For them to do so is a plain usurpation
of "judicial power."
Araong all the enumerated powers, granted to Congress,
there is no one that includes, or bears any, the reraotest, re
serablance to a power to prescribe what evidence shall, and
what shall not, be admitted by the courts, in the trial of a
case. There is none that bears any resemblance to a power
to Authorize or require the courts to decide cases on ex parte
testimony alone. If a judge were thus to decide a case, of his
own will, he would be impeached. The assumption, on the
part of Congress, of a power to authorize the courts to do such
an act, is a thoroughly barefaced usurpation. If Congress
can authorize courts to decide cases, on hearing the testimony
on one side only, they have clearly the same right to au
thorize them to decide them without hearing any evidence at
all.. SECTION 6.
The provisions of ihe act of 1850 requiring the exclusion of
certain evidence, are unconstitutional.
Those provisions of the act, which specially require the ex
clusion of certain testimony, naturally applicable to the case,
are unconstitutional for the same reason as are those which
purport merely to authorize or allow the decision of the case
on ex parte testimony. That reason, as has been already
stated in the preceding section, is that such legislation is an
usurpation, by Congress, of "the judicial power" — or rather
an attempt to control the judicial power — for which no au
thority is given in the constitution. " The judicial power "
being vested in the courts. Congress can of course neither ex
ercise nor control it.
If congress cah, by statute, require the exclusion of any tes
timony wh»atever, that is naturally applicable to a case, they
can require the exclusion of all testimony whatever, and re
quire cases to be decided by the courts, without hearing any
evidence at all.

23
There are two provisions in the act of 1850, which specially
require the exclusion of testiraony, on the part of the defendant.
The first is the one, (sec. 10), already coraraented upon, which
requires that certain ex parte testimony taken by the claimant,
" shall be held and taken to be full and conclusive evidence,"
on the two points to which it relates, to wit, the fact of slavery,
and the fact of escape. This requirement that this ear par^e
testiraony shall " be held and taken to be full and conclusive
evidence " of those two facts, is an express exclusion of all re
butting testiraony relative to those facts.
The other provision of this kind, is in the 4lh section, in
these words.
"In no trial or hearing, under this act, shall the testiraony
of such alleged fugitive be adraitted."
The act itself admits that the testiraony of one of the parties,
the clairaant, is legitimate evidence — for it permits it to be re
ceived, and, if it be "satisfactory" to the court, judge, or com
missioner, allows the case to be deterrained on his testiraony
alone. Indeed, without the clairaant's own testimony, his case
could rarely, if ever, be made out — because he alone could
generally know whether he owned the slave, and he alone
(except the slave) could know whether the slave escaped, or
whether he had permission to go into another stale. It is
therefore indispensable to the success of these cases generally,
that the claimant's own testimony should be received; and if
his testiraony be admissible, the testiraony of the opposing
party must be equally adraissible ; and for Congress to pro
hibit its admission is, for the reasons already given, an usur
pation of " the judicial power."*

* On general principles, the testimony of the parties themselves, in all cases, civil
and criminal, is legitimate, and neither Congress nor the courts have any authority to
exclude it.
In dml cases the testimony of the parties is legitimate, because they alone know the
vMle truth, as to the raatter iu controversy, and it is hardly possible to conceive of a
case in which it would not be for the interest of one or the other of the parties to dis
close it. If, therefore, the parties themselves are allowed to testify, it is morally cer
tain, as a general thing, that the whole truth will be told. If the parties agree in their
testimony, the facts of the case are at once ascertained, and the necessity and expense
of further testunony is saved. If they disagree, the testimony of third persons can

24

section / .
The requirement of ihe act of 1850, that ihe cases be adjudi
cated "in a summary manner," is unconstitutional.
Section 6th of the act makes it the "duty " of the court,
judge, or commissioner, " to hear and determine the case of
such claimant in a summary manner."
This determining the case in a summary raanner is only
another mode of excluding testimony on the part of the de
fendant. The plaintiff of course prepares his testimony before
hand, and has it ready at the moment the alleged fugitive is
arrested. If the case ihen be tried, without giving the defend
ant time to procure any testiraony, the decision must necessa
rily be raade upon the testiraony of the clairaant alone. Such
is the design of the act, for the defendant being arrested, the
then be brought in as supplementary to that of the parties ; and the presumption must
be that it will corroborate the party whose testimony is true. But if the testimony of
third persons alone is received, there can be no certainty at all that the whole truth is
told, in hardly any conceivable oase ; and consequently there can be no certainty that
the decision corresponds with the real merits of the case.
It is absurd to exclude both the parties, ou the ground of interest, for two reasons.
1. Because they have the same interests respectively ; their opposing interests there
fore exactly balance each other ; and they consequently stand on a perfect level with
each other in that respect. 2. Because, being parties, their interests are necessarily
known to the tribunal that weighs their testimony, and that tribunal will of course
make the proper allowance for their interests, and judge of the credibility of thek tes
timony accordingly.
In suits in equity, all courts receive the testimony of the parties themselves ; and
there is no rational ground whatever for making a distinction, in this respect, between
suits in equity, and suits in law. Blackstone says,
" It seems the height of judicial absurdity, that in the same cause, between the
same parties, ip the examination of the same facts, a discovery by the oath of the
parties should be permitted on one side of Westminster Hall, (iu the equity courts),
and demed on the other, (in the law courts); or that judges of one and the same
court should be bound by law to reject such a species of evidence, if attempted on a
toial at bar, but, when sitting the next day as a court of equity, should be obliged to
hear suoh examinations read, and to found their decrees upon it." 3 Blachstone, Ch. 23.
In crindnal oases, nothing can be more absurd, cruel, or monstrous, nothing more
manifestly contrary to all the dictates of humanity, justice, and common sense, than
to close the mouth of an accused person, and forbid him to offer any explanation or
justification of his conduct, or to give any denial to the testimony brought agamst
him— and thus throw hun,. for the protection of his life, liberty, and character, upon
suxdx evidence of other persons as chance may happen to throw in his way.
No doubt the guiMy would generally attempt to hide their guUt by falsehood ; but to

25
act requires that he shall be " taken forthwith before such
court, judge, or commissioner, whose duty it shall be to hear
and determine the case of such clairaEftit in a summary man
ner," — that is, without granting the delay necessary to enable
the defendant to obtain testiraony for his defence.
The whole object and effect of this provision is to make it
necessary for the court to determine the case on the evidence
furnished by the plaintiff alone. And the exclusion of all tes
tiraony for the defendant, by this "suraraary" process, is
equally unconstitutional with its exclusion in the raanner
coraraented on in the last two preceding sections — for the right
ofa party to be heard in a court of justice, necessarily iraplies
a right to reasonable time in which to procure his testiraony.

SECTION 8.
The suspension of the writ of Habeas Corpus, by the act of
1850, is unconstitutional.
Section Oth of the act provides that " the certificates in this
and the first section mentioned, shall be conclusive of the
right of the person or persons in whose favor granted, to re
move such fugitive to the state or territory from which he

presume that an accused person will testify falsely, is to presume him guilty before
he is heard, which we have no right to do. The law presumes an accused person in
nocent until he is proved guilty. Consistently with this presumption, the law is
bound to presume that he will tell the truth, because, if he be innocent, as the law
presumes him to be, the truth would best serve his purpose.
If the principle of shutting the mouth of au accused person, and compelling him to
rely for his defence upon such stray evidence as may chance to fall in his way, be a
sound one, it should be acted upon always, and everywhere. The father should strike,
but never hear, his child. And it should be the same throughout society. A man ac
cused of any thing offensive or injurious to others, should never be allowed, with his
own hps, either to deny the act, or justify it.
It is manifest that if such a principle were acted upon in society generally, it would
lead to universal war. Yet the principle would be no less absurd or monstrous in so
ciety at large, than it is in courts of justice.
The fear of falsehood, which has led to the adoption of this principle, has no justifi
cation in practical life ; for a guilty man is much more likely to entrap, than to excul
pate himself, when he attempts to defend himself by falsehood.

26
escaped, and shall prevent all molestation of snch person or
persons, by any process issued by any court, judge, magistrate,
or other person, whomsoever."
This is a prohibition upon the issue of the writ of habeas
corpus, and is a violation of that clause of the constitution,
which says that " The privilege of the writ of habeas corpus
shall not be suspended, unless when, in cases of rebellion or
invasion, the public safety may require it."
In cases where no appeal lies to a superior court, (and in
this case no appeal is granted, and the constitution, art. 3, sec.
2, clause 2, does not require an appeal,) the habeas corpus is
the only mode of relief for a person deprived of his liberty by
any illegal proceeding ; and a prohibition upon the use of the
habeas corpus for the purpose of inquiring into the proceedings,
and deterraining whether they have been legal, and releasing
the prisoner if they have been illegal, is as palpable a violation
of the constitution on this point as it is possible to conceive of
Upon a writ of habeas corpus, it would be the duty of the
court to inquire fully into the several questions, whether the
person, who had assumed to act as judge, and restrain the
prisoner of his liberty, was really a judge, appointed and qual
ified as the constitution requires ? Whether the law, under
color of which the man was restrained, was a constitutional
one? Whether the prisoner had been allowed a trial by jury ?
Whether he had been allowed to offer all the testimony, which
he had a constitutional right to offer, in his defence. Whether
he had had reasonable time granted him, in which to procure
testimony? And generally into all questions involving the
legality of his restraint ; and to set him at liberty, if the re
straint should be found to be illegal.

27

CHAPTER II.
The Right of Resistance, and ihe Right to have the Legality of
thai Resistance judged of by a Jury.
If it have been shown that the acts of 1793 and of 1850, are
unconstitutional, it follows that they can confer no authority
upon the judges and raarshals appointed to execute thera; and
those officers are consequently, in law, raere ruffians and kid
nappers, who may be lawfully resisted, by any body and
every body, like any other ruffians and kidnappers, who assail
a person without any legal right.
The rescue of a person, who is assaulted, or restrained of
his liberty, without authority of law, is not only raorally, but
legally, a raeritorious act ; for every body is under obligation
to go to the assistance of one who is assailed by assassins,
robbers, ravishers, kidnappers, or ruffians of any kind.
An officer of the government is an officer of the law only
when he is proceeding according to law. The moment he
steps beyond the law, he, like other men, forfeits its protection,
and may be resisted like any other trespasser. An unconsti
tutional statute is no laiv, in the view of the constitution. It
is void, and confers no authority on any one; and whoever
attempts to execute it, does so at his peril. His holding a
commission is no legal protection for hira. If this doctrine were
not true, and if, (as the supreme court say in the Prigg case,)
a raan may, if he choose, execute an authority granted by an
unconstitutional law, congress raay authorize whomsoever
they please, to ravish woraen, and butcher children, at pleas
ure, and the people have no right to resist them.
The constitution contemplates no such submission, on the
part of the people, to the usurpations of the government, or to
the lawless violence of its officers. On the contrary it pro
vides that " The right of the people to keep and bear arms
shall not be infringed." Tliis constitutional security for " the
right to keep and bear arms," implies the right to use them, —

28
as much as a constitutional security for the right to buy and
keep food, would have implied the right to eat it. The consti
tution, therefore, takes it for granted that, as the people have
the right, they will also have the sense, to use arms, whenever
the necessity of the case justifies it. This is the only remedy
suggested by the constitution, and is necessarily the only
remedy that can exist, when the government becomes so cor
rupt as to afford no peaceable one. The people have a legal
right to resort 10 this remedy at all times, when the govern
ment goes beyond, or contrary to, the constitution. And it is
only a matter of discretion with them whether to resort to it
at any particular time.
It is no answer to this argument to say, that if an unconsti
tutional act be passed, the mischief can be remedied by a
repeal of it ; and that this remedy may be brought about by
discussion and the exercise of the right of suffrage; because, ifan
unconstitutional act be binding until invalidated by repeal, the
government may, in the mean time disarm the people, suppress
the freedom of speech and the press, prohibit the use of the
suffrage, and thus put it beyond the power of the people to
reforra the government through the exercise of those rights.
The government have as much constitutional authority for
disarming the people, suppressing the freedom of speech and
the press, prohibiting the use of the suftrage, and establishing
themselves as perpetual and absolute sovereigns, as they have
for any other unconstitutional act. And if the first unconsti
tutional act raay not be resisted by force, the last act that may
be necessary for the consummation of despotic authority, may
not be.
To say that an unconstitutional law raust be obeyed until it
is repealed, is saying that an unconstitutional law is just as
obhgatory as a constitutional one, — for the latter is binding
only until it is repealed. There would therefore be no differ
ence at all between a constitutional and an unconstitutional
law, in respect to their binding force ; and that would be equi
valent to abolishing the constitution, and giving to the govern
ment unlimited power.

29
The right of the people, therefore, to resist an unconstitu
tional law, is absolute and unqualified, from the moment the
law is enacted.
The right of the governraent " lo suppress insurrection,"
does not conflict with this right of the people lo resist the ex
ecution of an unconstitutional enactraent; for an "insurrec
tion" isa rising against the laii;s, and not arising against
usurpation. If the government and the people disagree, as to
what are laws, in the view of the constitution, and what
usurpations, they raust fight the raatter through, or raake
terras vvith each other as best they may.
But for this right, on the part of the people, to resist usurpa
tion on ihe part of the government, the individuals constituting
the governraent would really be, in ihe view of ihe constitution
itself, absolute rulers, and the people absolute slaves. The
oaths required of the rulers to adhere to the constitution,
would be but empty wind, as a protection to the people against
tyranny, if the constitution, at the same time that it required
these oaths, coramitted the absurdity of protecting the rulers,
when they were acting contrary to the constitution. The con
stitution, in thus protecting the rulers in their usurpations,
would continue to act as a shield to tyrants, after they thera
selves had deprived it of all power to shield the people. It
would thus invite its own overthrow, and the conversion of
the government into a despotism, by those appointed to ad
minister it for the liberties of the people.
This right of the people, therefore, to resist usurpation, on
the part of the government, is a strictly constitutional right.
And the exercise of the right is neither rebellion against the
constitution, nor revolution — it is a maintenance of the consti
tution itself, by keeping the government within the constitu
tion. It is also a defence of the natural rights of the people,
against robbers and trespassers, who attempt to set up their
own personal authority and power, in opposition to those of
the constitution and people, which they were appointed to ad
minister. To say, as the arguments of most persons do, that the peo-
3

30
pie, in their individual and natural capacities, have a right to
institute government, but that they have no right, in the same
capacities, to preserve that government by putting down usur
pation—arid that any attempt to do so is revolution, is blank
absurdity. The right and the physical power of fhe people to resist in
justice, are really the only securities that any people ever can
have for their liberties. Practically nogovernraent knows any
limit to its power but the endurance of the people. And our
government is no exception lo the rule. But that the people
are stronger than the government, our representatives would
do any thing but lay down their power at the end of two
years. And so of the president and senate. Nothing but the
strength of the people, and a knowledge that they will forcibly
resist any very gross transgression ofthe authority granted by
them to tlieir representatives, deters these representatives from
enriching themselves, and perpetuating their power, by plun
dering and enslaving the people. Not because they are at
heart naturally worse than other men; but because the temp
tations of avarice and ambition, to which they are exposed,
afe too great for the mere virtue of ordinary men. And noth
ing but the fear of popular resistance is adequate to restrain
them. As it is, the great study of many of them seems to be
to ascertain the utmost limit of popular acquiescence. Once
in a while they mistake that limit, and go beyond il.
But, to return. As every body who shall resist an officer
in the execution of these fugitive slave laws, will be liable lo
be tried for such resistaiice, ahd to be thus laid under the
necessity of proving the unconstitntionality of the laws to the
satisfaction of the tribunal by whom he is tried ; and as judges
are in the nearly unbroken habit of holding all legislation to be
constitutiona;l ; and espBcially as the Suprerne Court of the
United States have held, (in the Pfi|g casfe, as before citeil,)
that the sending of men into bondsige is so important an object
fo be accomplished, that an officer rnay, ifhe choose, exercise
an authority conferred only by an unconstitutional law ; it be-
cdnies those, who raay be disposed to resist the execution of

31
the laws in question, to ascertain what are their chances of
escaping unharraed in running the gauntlet of such a judiciary
as the nation is blessed with.
One liability, imposed by the act, (sec. 7,) is that any per
son, who shall in any way assist in the rescue, " shall forfeit
and pay, by way of civil damages lo the party injured by
such illegal conduct, the sum of one thousand dollars for each
fiigitive so lost as aforesaid, to be recovered by action of debt,"
&c. There is one consolation, in view of this liability, and
that is, that in the suit for this $4-000, the claimant will be
under the necessity of proving his property in the fugitive ;
and this, (as is shown by Senator Mason's speech, before
cited,) could be done in no case whatever.
I say the claimant will have to prove his property in the
fugitive, because it is not clear that the act intends, (although
at first blush such may be its apparent meaning,) that the
judgment given by the court, judge, or comraissioner, deliver
ing the alleged slave to the clairaant, shall be sufficient evi
dence, or even evidence at all, of such clairaant's property in
the slave, in a civil suit for damages for the loss of the slave.
And in the absence of such clear intention, I apprehend no
court would dare put such a construction upon the act, or
allow such use to be raade of that judgment. The right of
action for damages, which is given to the master, is given him,
not for the purpose of punishing those who rescue the alleged
fugitive, (for that punishment is provided for by fine and im
prisonment,) but to enable the owner to recover payment for
the loss of his property. In such an action he is of -course
necessitated to prove, (and Congress have no power to make
any law to the contrary,) that the raan he claims as his prop
erty, is really his — because, in a free state certainly, every
man is prima facie the owner of himself*

* In the oase of Hill ». Low, the court held that under the law of 1793, the claimant,
in a suit for the penalty, against a person for harboring, concealing, or rescuing a fugi
tive was under the necessity of proving his property in the fugitive, and that the certi
ficate of the magistrate was not propf. The reasons given for that opinion seem very
satisfactory and conclusive, and to be as applicable to a case under the act of 1850 as
under that of 1793.— 4 Washington C. C. Sep. 327.

32
The claimant could recover payment for his slave but once,
although an hundred or a thousand persons were engaged in
the rescue; and these hundred or thousand persons could
unite in the payment, thus making the burden a light one
upon each individual.
As this action is given to the owner, to enable him to recover
the value of his slave, and not as a penalty upon those who
rescue him, the law is clearly unconstitutional in fixing that
value at a specific sura. The value must be ascertained by a
jury, if it exceed twenty dollars. Congress have as much
right to say that, in case of any other injury done by one man
lo the property of another, the wrong-doer " shall forfeit and
pay, by way of civil damages to the party injured by such
illegal conduct, the sura of one thousand dollars, (and no
more,) to be recovered by action of debt," without regarding
whether the injury were really f 10, or $10,000, as to say the
sarae in this case. The power of deterraining the amount of
injury done by one man to the property of another, by viola
ting a law of the United States, is a part of " the judicial
power," and is vested solely in the courts, and Congress have
no authority whatever to decide that question.
Furthermore, the law is alsb unconstitutional in authorizing
the owner to recover the full value of the slave. It should
only authorize hira to recover the daraages actually sustained
by the rescue. The owner does not lose his property in his
slave by having hira taken out of his hands on a particular
occasion. His property in him remains, and the law presumes
that he can take his slave again at pleasure, as he could before
the rescue. Because there has been one rescue, the law does
not presume that the slave is forever lost to his owner. And
the defendants would be entitled to prove that the slave was
still within reach of the master, where his master might at any
time retake hira. And it would be no answer to this fact, to
say, that if the slave were retaken, he would probably be
rescued again. The law presumes nothing of that kind, and
could not presume it, even though the slave had been seized
by the owner, and rescued by the defendants, an hundred

33
tiraes. The law would slill presume that if the master were
to take the slave again, he would be suffered to hold peaceable
possession of him. Consequently the owner, in case of a res
cue, is entitled to recover only the daraages actually suffered
by that particular rescue, and not the full value of the slave,
as if he had been lost to him forever. And this suit for dam
ages, being a "suit at comraon law," within the meaning
of the constitution, must be tried by a jury; and the dam
ages must be ascertained by a jury, instead of being fixed by
statute. If this view of the law be correct, the pecuniary liability
incurred in rescuing a slave, would be very slight, so far as
the right of the master to recover damages was concerned.*
The only other liability incurred in rescuing an alleged
fugitive, is a liability to be indicted and tried criminally for
the act, and if convicted, subjected to "a fine not exceeding
one thousand dollars, and iraprisonment not exceeding six
napnths." There are two chances of security against these punish
ments. 1. They can be inflicted only upon "indictment and con
viction." There is a probabihty that a grand jury will not
indict, for it is not their duty to do so, if they think the law,
that has been resisted, is unconstitutional. A grand jury have
the same right to judge of the law, as a traverse jury.
2. If an indictment be found, the jury who try that indict
ment, are judges of the law, as well as the fact. If they
think the law unconstitutional, or even have any reasonable
doubt of its constitutionality, they are bound to hold the de
fendants justified in resisting its execution.
From this right of the jury to judge of the law in all crimi
nal cases, it follows that in all forcible collisions between the
goyernment and individuals, (as in the case of resistance to

* If however, it should be held that the $1000, requu-ed to be paid to the clairaant,
is in the nature of a penalty, mi addition to the fine and imprisonment, it follows that in
a suit for that penalty, the jury wiU have a right to judge of the constitutionality of
the law, as in oase of an indictment.
3*

84
the execution of a law,) the right of judging whether the gov
ernraent or the people are in the right, lies in the first instance,
not with the governraent, or any permanent department of it,
but with the people— that is, " the country," whom the jury
represent;, for the jury represent "the country," or the people,
as distinguished from the government* The people, there
fore, in establishing government, with trial by jury, do not
surrender their liberties into the hands of the government to
be preserved or destroyed, as the government shall please.
But they retain thera in their own hands, by forbidding the
governraent to injure any one in his life, liberty, or property,
without having first obtained the consent of " the country "—
that is, of the people theraselves — who are supposed to be
fairly represented by a jury, taken promiscuously from the
whole people, and therefore likely to embrace persons of all
the varieties of opinion that are generally prevalent among the
people. Hence it follows that, under the trial by jury, no man can
be punished for resisting the execution of any law, unless the
law be so clearly constitutional, as that a jury, taken promis
cuously from the mass of the people, will all agree that it is
constitutional. But for sorae principle of this kind, by which
the opinions of substantially the whole people could be ascer
tained, men, in agreeing to a constitution, would be liable to
be entrapped into giving their consent to a government that
would punish them for exercising rights, which they never
intended to surrender. But so long as it rests with a jury,
instead of the government, to say what are the powers of the
government, and what the liberties of the people — and so long
as juries are fairly selected by lot from the whole population,
the presumption is that all classes of opinions will be repre
sented in the jury, and every man may therefore go forward
fearlessly in the exercise of what he honestly believes to be
his rights, in the confidence that, if his conduct be called in
question, there will be araong his judges, (the jury,) some
* In aU criminal cases, the jury are told that the defendant has " for trial, put him
self upon the country, whioh country you are."

35
persons at least, whose judgments will correspond with his
own. And inasmuch as a single dissentient in the jury is sufficient
to prevent a conviction, it follows that if the governraent exer
cise any powers except such as substantially the whole people
intended it should exercise, it is liable to be resisted, without
having any power to punish that resistance. It raay indeed
overcorae that resistance and enforce the law, constitutional
or unconstitutional, unless resisted by a force that is stronger
than its own. But it cannot punish that resistance afterward,
unless substantially the whole people, through a jury, agree
that the law was constitutional.
But this right of a jury, in all criminal prosecutions, to judge
of the constitutionality of the law that has been resisted, is
not the whole ofa jury's rights; they have the right to judge
also of its justice. Juries are never sworn to try criminal cases
" according to law." They are only sworn to ".try the issue
according to the evidence." The " issue " is guilty or not
guilty. This issue is to be tried on the natural principles of
justice, as those principles exist in the breasts of the jurors,
and not according to any arbitrary standard which legislators
may have attempted to set up. Guilt is an intrinsic quality
of actions, and cannot be imparted to thera by all the legisla
tures that ever assumed to exercise the power of converting
justice into injustice, and injustice into justice. The question
for a jury, in trying " the issue," then, is not simply whether
the accused has been guilty of violating a law ; but whether
he has been guilty in violating it ? And unless they all an
swer this last question in the affirmative, he cannot be con
victed. The trial by jury might safely be introduced into a despotic
government, if the jury were to exercise no right of judging of
the law, or the justice of the law.
If juries were to find men guilty, simply because the latter
had exercised their natural rights in defiance of unjust laws,
juries, instead of being, as they are wont to be called, " the
palladium of liberty," would be the vilest tools of oppression

36
— the instruments of their own enslavements — for in condemn
ing others for resisting injustice, at the hands of the govern
ment, they authorize their own condemnation for a similar
cause. No honest man could ever sit on a jury, if he were
required to find a man " guilty," and thus become accessory
to his punishment, for doing an act, which was just in itself,
but which the government, in violation of men's natural
rights, had arbitrarily forbidden him to do.
Furthermore, a jury, before they can convict a man, must
find that he acted with a criminal intent — for it is a maxim of
law that there can be no crime without a crirainal intent.
There can be no criminal intent in resisting injustice. To
justify a conviction, therefore, the law, and the justice of ihe
law, must both be so evident as to make its transgression satis
factory proof of an evil design on the part of the transgressor.
Such are some of the principles of the trial by jury : arid
the effect of thera is to subject the whole operations of the gov
ernraent, both as to their constitutionality and their justice, to
the ordeal of a tribunal fairly representing the whole people,
and thus to restrain the government w;ithin such limits as sub
stantially the whole people, whose agent it is, agree that U
may occupy. But for this restraint, our governmentj like all
others, instead of being restricted to the accomplishment of
such purposes as the whole people desire, would fall, as indeed
it very often has fallen, into the hands of cliques and cabals,
who make it, as far as possible, an instrument of plunder and
oppression , for the gratification of their own avarice etnd aiP"
bition. There is, therefore, substantial truth in the saying, whic,h,
we have been recently told,* "has, in England, become tra
ditional, and drpps frofli the common tongue, .tha<t ' the great
object of King, I*ords, and Commons, is to get twelye men into
a jury box.' " And in this country, the great phject of PrggL-
d.ents, Senator?, and Itepre^ntatives is the same. But such
have heen the ignorance and the frauds pf Ipgislators and
jiudges, s-nd such the ignorance pf th.e people, on ,thj|s pojn:^,
* By H(»i. Horace Mann.

37
that juries have generally been merely contemptible tribunals,
looking after facts only, and not after rights, and ready to
obey blindly the dictation of legislatures and courts, and en
force any thing and every thing, which the permanent branches
of the government should require thera lo enforce. And we
now see the results of their degradation and submission, in the
audacity of the legislature in passing such laws as those of
1793 and 1850, and in the conduct of the courts in sanctioning,
as constitutional, the former of these laws, as they undoubted
ly will sanction the latter, unless deterred by the intelligence
and firmness of the people.
It is this intrusting of the liberties of the people, to the hands
of the people — represented by a jury taken promiscuously from
the mass ofthe people — instead of intrusting them to the gov
ernraent, which represents at most but a part, and generally a
small part, of the people — that makes the trial by jury " the
palladium of hberty." If governraents were intrusted with au
thority to define the liberties of the people, they would of course
say that the people had no liberties that could be exercised con
trary to the will of the governraent. And if governraents had
authority to define their own powers, and to punish all who re
sisted their power as thus defined, all governraents would declare
theraselves absolute of course. And the siraple right to punish
resistance, without getting the consent ofthe people in each indi
vidual case, would, of itself, raake any governraent absolute ; for
the power to punish necessarily carries all other powers with it.
The power to punish disobedience is the power that corapels
obedience. It is, in its very nature, an absolute and uncon
trollable power. And if a governraent have this power, it is
absolute of course. And oaths and parchments are things of
no iraportance in such a case, for they are necessarily but
straws in the way of a power that is otherwise unrestrained.
It is no arguraent to say that the constitution has provided
a judicial department, with power extending to "all cases
arising under the constitution and laws of the United States."
The answer is, that this constitution has made juries a part of
this judicial department, apd given thera special jurisdiction of

88
crimes, and made their acquittal final; and that it is only in
cases of conviction that a question can be carried beyond
them. The permanent officers of this department — the judges, so
called — by the very constitution of their office, are unfit tp be
trusted with any question arising between the government and
the people, as to the powers of the former, and :the liberties of
the latter ; for the judges receive their offices directly from
those other departments of the government, and not from the
people. They are also dependant upon those other depart
ments for their salaries, and are amenable to them hy impeach'
ment. They are of cpurse nothing but instruments in their
hands, and have always proved theraselves to be so. I think
there is not to be found on record, either in our general or state
governraents, a single instance, in which the judiciary have
ever held a law unconstitutional, that provided in any way
for punishing the people for the exercise of their rights. The
statute books of both the national and state governnients have
abounded, and still abound, with statutes creating odious and
oppressive monopolies, infringing men's natural rights, violat
ing the plainest principles of justice, having no authority in
the constitutions under which they purport to be enacted, and
providing fines and imprisonments for those who may trans
gress thera ; and yet, (so far as I am aware), no one of this
long catalogue of enactraents ever encountered the veto of the
judiciary. I apprehend that the whole judiciary of this counr
try. Slate and national, raight be safely challenged to produce
a single instance, in which they have ever vindicated a single
principle of either natural or constitutional liberty, against the
penal encroachments of the legislatures on which they were
dependent. On the contrary, they have uniformly— probably
without a solitary exception— proved themselves, in all ques?
tions of this nature, to be nothing but the willing instruments
of usurpation and oppression. They do-not accept their offices
with any other intention than that of holding all laws constitu
tional, which they suppose the legislature will pass—for no-

S9
body accepts an Office, unless with the rntentioh of being obe
dient to those, to whom they are amenable.*
The idea, so constantly asserted, that the permanent judici-
ai'y, fhe judges, have a right to decide all constitutional ques
tions, authoritatively for the people, is one of those gross impos-
tores, by which men have always been defrauded of their
rights. There is not a syllable in the constitution, that raakes
a decision of the judiciary — of its own force, and without re
gard to its correctness — binding upon any body, either upon
tM executive, or the people. In the very nature of things,
nothing but the law can be binding upon any one. If a judi
cial decision be aceordlng to law, it is binding; if not, not.
An unconstilu tional judicial decision is no raore binding, than
an unconstitutional legislative enactment — and a man has the
same right to resist, by force, one as the other, and to be tried
for such resistance by a jury, who judge of the law for thera
selves. Suppose the judiciary, ta a suit between two pretended
mothers, for the custody of a child, should give the judgraent
of Solomon, that the child be cut in two, and a half given to
each ; does any one suppose the executive would be bound to
carry the judgrifvent into effect? or that the opinion is obliga
tory as an authority upon any body? Yet it would be as
much binding as any other erroneous decision.
If a judicial decision contrary to the constitution, werebihd-
ing simply because it were a judicial decision, the judiciary
could constitutionally make theraselves absolute sovereigns at
onee. A ju'dieial decision, as such, has therefore no intrinsic ail-
ttiority at all; its constitutional authority rests wholly upon
its being in accordance with tlie constitution. And we can de-
teriKine whether it be in accordance with the constitution, only'
by first determining the meaning of the dotistithtion, indepen
dently of the decision, and then coniparing the decision AW'ith
" it. If we take the decision as authority for the meaning of the

* If judges were made amenable to the people by election, we might have more
hope of their having some respect for the rights of the people.

40
constitution, all decisions will of necessity be constitutional,
and the judges are of course, constitutionally speaking, absolute
despots. It is no argument, in answer to this view of the case, to say,
that decisions raay be so grossly and palpably unconstitutional
as not to be binding ; but that in all doubtful cases they are
obligatory. The constitution knows nothing of doubtful cases.
In its view decisions and laws are simply either constitutional
or unconstitutional. It knows nothing of their being more or
less grossly and palpably so. If they are constitutional, they
are binding ; if they are not constitutional, they are not bind
ing, though their variation from the constitution be but the
smallest that can be discovered.
The constitution does not assume that it needs any authori
tative interpreter. It assumes that its meaning is known to
the people who ordained and established it, just as all legal in
struraents assurae that their true raeaning is understood by the
parties to thera. The people, as parties to the constitution,
would not be bound by it, unless they were presuraed to un
derstand it — for no one is bound by a contract, which he is not
presuraed to "understand.
The constitution as rauch presumes that the people under
stand its own meaning, as it does that they understand a judi
cial opinion. It presuraes itself to be as intelligible as the
opinions of courts. It would be absurd for it to presurae that
courts would express its intentions more intelligibly than it has
itself expressed thera — for, in that case, the language of the
courts would be more authoritative than the language of the
constitution ; they would consequently make the constitution
whatever they should please to raake it ; and they would also
make themselves whatever they should please to be. But the
constitution has no such suicidal character as that. On the
contrary, it presumes that the people are competent to under
stand both the raeaning of the constitution and the meaning of
the courts ; and consequently that they are competent to de
termine whether the opinions and decisions of the courts cor-

41
respond with the constitution, and whether, therefore, their
decisions are to be obeyed or resisted.
What, then, it may be asked, is the use of the judiciary, if
it be not to decide doubts as to the meaning of the constitution ?
The answer is, that it is their office to try certain " cases,"
"controversies," and "suits," raentioned in the constitution.
These cases are presumed to arise out of disagreements as to
facts, or frora the dishonesty of one or the other of the parties,
and not frora their ignorance of the law, (or constitution), —
for every body is presumed to know the law, although all do
not in fact know il — neither the people nor the courts. And
the judiciary are to try these "cases," "controversies," and
" suits," — that is, they are to ascertain the facts, and deter
mine the resulting rights of the parties — by ihe standard of ihe
constitution, as a known standard ; a standard thai is presumed
io be known io both the parties, as well as to the courts.
The judiciary are in a situation analagous to that of any
other umpire, who should be agreed upon, for instance, by the
parties in a controversy, to measure a certain commodity by a
certain standard — as, for example, to raeasure certain cloth by
a yard stick. The subraission of this controversy to the um
pire, implies that the parties, as well as the umpire, under
stand the length of the yard stick — but that they nevertheless
disagree as to the true admeasurement of the cloth. They
therefore agree to abide the decision of the umpire.
In the performance of his office, it becomes necessary for this
umpire — for a guide to his own duty, and not for the inforraation
of the parties or the public, — to ascertain what is a yard stick.
And if he honestly measure the cloth by a yard stick, the par
ties are bound by his admeasureraent. But if this umpire,
either from ignorance or design, measure the cloth by a stick,
that is either more or less than a yard, calling such stick a
yard stick, the admeasureraent is not binding upon the parties
— because the subraission of the case to the urapire was made
upon the express condition that the admeasureraent should be
made by a yard stick. And the party, who has been wronged
4

42
by the false admeasurement, has a right to resist the execution
of the umpire's decree.
The case is the same with the judiciary. They are umpires,
appointed to measure the rights of parties, by a certain standard,
to wit, the constitution. This standardis presumed to be known
to the parties, as well as to the umpires, (for all are presumed
to know the law), although it may in fact be known to none of
thera. The umpires — in order to perform their own duty, and
not for the information of the parties or the public, — must neces
sarily ascertain, if they can, what the constitution really is. But
if, through ignorance or design, they put a false raeaning upon
the constitution — thus adopting a false standard — and then
raeasure the rights of the parties by this false standard, the
parties are not bound by their decision, because the submission
was made to them only on the condition that their rights should
be measured by that particular standard, the constitution —
and not by any false standard which the umpires, through
ignorance or design, might adopt. And the party, who is
wronged by the decision, has a right to resist the execution of
it, to the best of his power. And if tried criminally for such
resistance, his triers (the jury) must judge whether the decis
ion of the umpires was according to the standard agreed upon
by the parties — that is, according to the constitution.
But it is thoroughly ridiculous to talk of these umpires hav
ing fixed or established the standard itself — that is, the mean-
ingof the constitution — raerely because, in a particular instance,
they measured the rights of certain parties by the constitution.
There would be as much reason in saying that the umpire,
who measured the cloth by a yardstick, established the length
of the yard stick by so doing, as' to say that the judiciary es
tablish the meaning of the constitution, whenever they pretend
to measure rights by the constitution. Any thing they said or
did in one instance, between certain parties, has no binding
force, of itself, in any subsequent case between the same, or
any other, parties. The standard, alone, or a true adraeas-
ureraent by the standard alone, is binding in all cases. If the
first admeasurement were correct, that admeasureraent estab-

43
lished simply the rights measured by it. It did nothing to
wards fixing ihe standard itself, by which the rights were
measured. And any subsequent correct admeasurement will,
in like manner, establish the rights measured by it ; but will
do nothing towards fixing the standard itself The standard
itself needs not to be fixed, for it was fixed before any rights
at all had been measured by it. But to say because one ad
measurement has been made thus, therefore all future admeas
urements must be made thus, is ridiculous. The admeasure
ments are all bound to be raade correctly, according to the
standard. But if one have been raade wrong, that is no reason
why all future admeasurements must be made wrong, nor why
the people are bound to presume that all future admeasure
ments will be raade wrong. Whether any admeasurement be
made wrong, or not, each one raust judge for himself, and re
sist the decision of the umpires at the peril of being tried for
such resistance by a jury.

CHAPTER III.
Liability of United States Ofiicers io be punished, under the
Staie Laws, for executing the acts of 1793 and 1850.
If the laws of 1793 and 1850 are unconstitutional, they are
no laws, in the view of the constitution ; consequently they
confer no authority on any one; and the United States judges,
comraissioners, raarshals, (fcc, who may assist in sending raen
into slavery, in performance of them, are liable to be punished,
under the State laws, as kidnappers, the sarae as they would
have been if Congress had passed no act on the subject.
The constitution contemplates that all officers of the United
States, except Senators and Representatives, raay be punished
for any criraes done under color of their office ; for it declares,
that, in addition to irapeachraent, they " shall be liable, and
subject to, indictment, trial, judgment, and punishment accord
ing to law." {Art. 1, Sec. 3, Ch. 7).

44
If any one of these officers were to commit murder, rape,
arson, theft, or any other crirae, either under color of his
office, or otherwise, his office is no protection to hira against
the laws of the State. And it is the sarae in the case of kid
napping, as it would be in the case of any other crime.
The only question, that can be raised in their defence, is,
whether they are bound to know that an act, that has passed
through the regular forms of being enacted, is unconstitu
tional ?
This question is answered by the siraple principle, that
every body is bound to know the law. If that obligation be
iraperative upon any one, it is imperative upon those who ad
minister the law. The constitution is the fundamental, the
paramount law, and all officers of the government are sworn
to support it. Of course they are presumed to know it, and
bound to know it, else their oaths to support it would be but
nonsense. If they are bound to know the constitution itself, they are of
course bound to know whether an act, that has passed Con
gress, be in conformity with it, — else in executing the act they
would be liable to commit a breach of their oaths to support
the constitution.
They are also sworn to administer and execute the laws of
the United States, Unless they were presumed to know, and
bound to know, what are, and what are not, laws of the
United States, within the meaning of the constitution, this
oath also is an absurd one.
If the judges or executive officers were bound to consider
every act, that raay pass Congress, a constitutional one — that
is, a laiv, within the meaning of the constitution, — their oath
to support the constitution, and their oath to support the laws,
would come in conflict with each other, whenever an uncon
stitutional act was passed.
Indeed we all know that the judiciary are not bound to con
sider an act of congress constitutional ; and if the judiciary
are not, no other branch of the government is, for each depart
ment of the government judges of the constitution for itself,

45
independently of the others,— else no one branch would be
any restraint upon the others, and the whole object of having
the government divided into different departments, to act as
checks upon each other, would be lost. Every law, therefore,
raust pass the ordeal of all branches of the government, (if
brought before thera), before it can be executed.
The constitution (Art. 1. Sec. 6), protects those who make
an unconstitutional law, — that is, " the Senators and Repre
sentatives," — frora any legal responsibility for the act, by
providing that " for any speech or debate in either house,
they shall not be questioned in any other place." Unless,
therefore, those who execute an unconstitutional law, can be
held responsible for their acts, there is no crime, however con
trary to the constitution, which congress may not authorize to
be coraraitted with impunity; and all ideas of there being any
legal and practical restraints upon the governraent of the
United Stales, short ofa resort to force, are fallacious.
For all acts, therefore, thai are criminal in themselves, the
officers of the United States are liable to be tried under the
State laws, and punished, unless they show ihat the acts were
done in pursuance of sorae consiiiuiional law of the United
States. And no presuraption in favor of the constitutionality
of the law can be allowed, if the acts done are crirainal in
themselves; for the presuraption raust always be that the con
stitution authorizes nothing crirainal in itself
In the trial of an United States officer for a crirae coramitted
under color of an unconstitutional law of Congress, the ques
tion whether the law were constitutional, would be a question
to be judged of, in the first instance, by a jury. If they held
the law unconstitutional, and convicted the defendant, he
would have a right of appeal to the Supreme Court of the
United States. But corrupt as that court is, they would rarely
dare, against the general voice of the juries of the country, to
hold a law constitutional, that licensed crimes against the
people. In saying that the officers of the government are bound to
know the law, (and consequently to know whether an act of
4*

46
congress be constitutional), I am only laying down the general
principle of criminal law — a principle, which the government
usually enforces without mercy, against private individuals,
and which is certainly as sound when applied to an officer of
the governraent, as when applied to private persons.
But in truth the maxim, that ignorance of the law excuses
no one, is a very absurd and unjust one, if applied without any
limitation, inasmuch as it would nullify the first principle of
criminal law, that there can be no crime without a criminal
intent. The rule is also one, which judges theraselves could
not live under, for they are every day committing errors,
which would be criraes, if ignorance were not a legal excuse.
But the rule is a sound one, so far as it is necessary to com
pel all raen, officers of the governraent, as well as private per
sons, to use all reasonable and proper diligence to ascertain the
law. And where a law requires any thing, thai is criminal in
itself, an officer is bound to act with far greater caution, and to
use far greater diligence, to ascertain whether it be constitu
tional, than he is where the act required to be done is right in
itself — because the presuraption of law is always in favor of
justice. Nothing, therefore, but entirely clear and conclusive
proof of the constitutionality of a law, ought to justify an offi
cer in executing it, if it require hira to do any thing that is in
trinsically crirainal.
This liability of the officers ofthe United States, to the crim
inal laws of the states, is no hardship upon thera — for it applies
only in cases where the acts done by them are mala in se, crimi
nal in themselves. And they, like other men, can be convicted
only where the jury find that they either knew that the acts done
by them were intrinsically criminal, or were culpably ignorant of
their character in that respect. Now, it would really be no hard
ship that a;man should be punished for an act, t&at he knew to be
to be intrinsically criminal, even though it were authorizedby all
the governments in the world ; because governments have no
rightful power to authorize such acts, and their authority is,
morally speaking, no justification to the agent. An officer of
the government, who performs an act criminal in itself, does

47
it voluntarily for hire, (for he is at liberty to resign his office) ;
and he has no more -moral excuse for the act than any other
man has, who perpetrates a crirae for pay. It is therefore a
special grace, and bad enough in principle, to allow officers of
the government, in any case, to set up a law of the govern
ment, as an excuse for a known crime. If this grace be ex
tended so as to allow an unconstitutional law, (which is really
no law at all), to be used as a justification for crimes, we in
reality hcense the governraent to perpetrate all criraes at
pleasure. The question now arises, whether these fugitive slave laws
are so plainly unconstitutional, as to afford no legal excuse for
those who execute thera ?
In the first place, there would seera to be no doubt, so far as
the commissioners are concerned. The acts required of them
are judicial acts ; yet they plainly are not judicial officers,
within the meaning of the constitution. And inasmuch as the
act of delivering a man into bondage is intrinsically a crirae,
they are inexcusable for assuming judicial powers for the pur
pose of executing it.
The objection which lies against the commissioners, on ac
count of the tenure of their offices, and their want of fixed sal
aries, does not apply to judges of the established courts. But
all the other grounds of unconstitutionality are as strong in the
case of the judges as in the case of the commissioners^ And the
question is; whether an act of Congress, requiring that a man
— found in a free state, a,nd prima facie a free man and citizen
of the United States — be delivered into slavery ; without a
trial by jury ; on ex parte evidence ; and a part of that ex parte
evidence taken in another state, by a state "court, or judge
thereof in vacation," and made binding upon the United States
court that delivers him up ; denying him the right to give his
own testimony ; and depriving him, by "a summary manner "
of proceeding, of all opportunity of procuring other testimony
in his favor ; be so plainly unconstitntional, that a jury would
be bound to hold a judge guilty of a criminal intent in execut
ing it?

48
That the act of deUvering a raan into slavery is intrinsically
a crirae of a high grade no one can deny. The presumption
of law therefore is, that the constitution gives no authority for
it. The burden is therefore upon the judge to show that the
acts of Congress are so clearly constitutional, as to overcome
this presumption, and justify the act. Ifhe can show this, he
is entitled to the benefit of it ; otherwise not.
To illustrate the principles here raaintained, let us suppose
that Congress pass an act for the trial and punishment of trai
tors ; providing that a person accused of treason, raay be tried
and convicted wholly on ex parte evidence; that ex parte evi
dence, taken in another state than the one in which he is tried,
and before "any (state) court of record, or judge thereof in
vacation," "shall be held and taken (bythe United States
court) to be full and conclusive evidence of the treason," leav
ing nothing but the identity of the individual to be proved on
the trial; enacting also that he ^hall be tried "forthwith,"
after being arrested, and " in a summary manner," that will
allow hira no opportunity to procure evidence in his defence;
that he shall not have a trial by jury, as the constitution re
quires that he shall have; but that he shall be tried by a
single judge ; (and that judge, it may be, not one having a
fixed salary, and therefore free from any pecuniary interest in
his conviction, but one depending solely upon fees for his pay,
and who is to receive ten dollars if he convict the accused,
and sentence him to death, and but five dollars if he acquit
him); enacting further that, in case of conviction, no appeal
shall be allowed to a higher court on any question of either
law or fact ; that no writ of habeas corpus shall be issued in
his behalf; but that, on the contrary, the judge, that con
victed hira, shall at once issue his warrant to the marshal, re
quiring him, under penalty of a thousand dollars, to hang the
man iraraediately before he can be rescued by the people ;
suppose all this, and does any one doubt that the judge,
marshal, and every body else who should assist in executing
the law, would be bound to know that such a law was uncon
stitutional, and would therefore be guilty of murder in ex-

49
ecuting it? and liable to be punished as murderers under the
laws of the state, in which the transaction occurred? Yet
what difference is there, in principle, between that case, and a
case of kidnapping under the statutes we have been discuss
ing? If there be any difference, sufficient to constitute a
valid excuse, the governraent officers must go acquitted of
their crime; otherwise they raust be convicted.
The same principles of responsibility to the crirainal laws
of a state, that apply to judges, comraissioners, and marshals,
apply also to the militia, who turn out, at the comraand of the
president, to assist in enforcing an unconstitutional law. If the
miUtia are bound to know nothing of the constitutionality of
a law of Congress, or to know no law but the orders of a supe
rior officer, we live under a military despotism.
In addition to these liabilities to the crirainal law, the offi
cers of the United Stales are liable to civil suits for damages,
if they execute an unconstitutional law of Congress to the in
jury of private persons. And judgments recovered in the
state courts could be invalidated, if at all, only on an appeal
to the suprerae court of the United States.
Finally. If these fugitive slave laws are unconstitutional,
the delivery of persons into slavery under color of them, is a
crime ; and the state magistrates, on application to them, are
bound to place the officers of the United States under bonds to
keep the peace in this particular. If those officers then pro
ceed, contrary to the obligation of their bonds, to execute the
law, their bonds are liable to be enforced, unless invalidated
on an apppeal to the supreme court of the United States.
Unless these principles be sound, it is manifest that the
states have no power to protect their citizens against any
crimes, which Congress, by unconstitutional enactments, raay
please to license to be coraraitted against them.

APPENDIX,

JVeither the Constitution, nor either of the acts of Congress of 1793 or 1850,
requires the surrender of Fugitive Slaves.
In the preceding chapters, it has been admitted, for the sake of the argu
ment, that the constitution, and the acts of Congress of 1793 and 1850, require
the delivery of Fugitive Slaves. But such really is not the fact. Neither the
constitutional provision, nor either of said acts of congress, uses the word
slave, nor slavery, nor any language that can legally be made to apply to
slaves. The only " person " required by the constitution to be delivered up,
is described in the constitution as a " person held to service or labor in one
state, under the laws thereof." This language is no legal description of a slave,
and can be made to apply to a slave only by a violation of all the most impera
tive rules of interpretation, by which the meaning of all legal instruments is to
be ascertained.
The word " held " is a material word in this description. Its legal meaning
is synonymous with that ofthe words " bound," and " obliged." It is used in
bonds, as synonymous with those words, and in no other sense. It is also used
in laws and other legal instruments. Jlnd its legal meaning is to describe persons
held by some legal contract, obligation, duty, or authority, which the law will
enforce. Thus, in a bond, a man acknowledges himself " AcW, and firmly
bound and obliged '' to do certain things mentioned in the bond, — and the law
will compel a fulfillment of the obligation. The laws " hold " men to do vari
ous things ; and by holding them to do those things, is meant that the laws will
compel them to do them. Wherever a person is described in the laws as being
" held " to do any thing, — as to render " service or labor," for example, — the
legal meaning invariably is that he is held by some legal contract, obligation,
duty, or authority, which the laws will enforce, — (either speci6cally, or by com
pelling payment of damages for non-performance). I presume no single instance
can be found, in any of the laws of this country, since its first settlement, in
which the word " held " is used in any other than this legal sense, when used
to describe a person who is " held " to do any thing, " under the laws." And
such is its meaning, and its only meaning, in this clause of the constitution. If
there could be a doubt on this point, that doubt would be removed by the addi
tional words, " under the laws," and the word " due " as applied to the " ser
vice or labor," to which the person is " held."

51
Now a slave is not " held " by any legal contract, obligation, duty, or au
thority, which the laws will enforce. He is " held " only by brute force. One
person beats another until the latter will obey him, work for him, if he require
it, or do nothing if he require it. This is slavery, and the whole of it. This is
the only manner in which a slave is " held to service or labor."
The laws recognize no obligation on the part of the slave to labor for or serve
his master. If he refuse to labor, the law will not interfere to compel him.
The master must do his own flogging, as in the case of an ox or a horse. The
laws take no more cognizance ofthe fact whether a slave labors or not, than it
does of the fact whether an ox or a horse labors.
A slave then is no more " held " to labor, in any legal sense, than a man
would be in Massachusetts, whom another person should seize and beat until he
reduced him to subjection and obedience. If such a man should escape from his
oppressor, and take refuge in Carolina, he could not be claimed under this
clause ofthe constitution, because he would not be " held " in any legal sense,
(that is, by any legal contract, obligation, duty, or authority), but only by
brute force. And the same is the case in regard to slaves. Senator Mason of
Virginia, in the extract before given from his speech, virtually admits this to be
the fact.*
It is an established rule of legal interpretation, that a word used in laws, to
describe legal rights, must be taken in a legal sense. This rule is as imperative
in the interpretation of the constitution, as of any other legal instrument. To
prove this, let us take another example. The constitution (Art. 1, Sec. 6),
provides that " for any speech or debate in either house, they (the Senators
and Representatives) shall not be questioned in any other place." Now this
provision imposes no restriction whatever upon the Senators and Kepresenta-
tives being " questioned for any speech or debate," by any body and every
body, who may please to question them, or in any and every place, — with this
single exception, that they must not " be questioned " legally, — that is, they
must not be held to any legal accountability.
It would be no more absurd to construe this provision about questioning Sen
ators and Representatives, so as to make it forbid the people, ih their private
capacity, to ask any questions of their Senators and Representatives, on their
return from Congress, as to their doings there, instead of making it apply sim
ply to a legal responsibility, than it is to construe the words " held to service
or labor," as applied to a person held simply by brute force, (as in the case
supposed in Massachusetts), instead of persons held by some legal contract,
obligation, or duty, which the law will enforce.
Astthe slave, then, is " held to'service or labor," by no contract, obligation,
or duty, which the law will enforce, but only by the brute force of the master,
the provision ofthe constitution in regard to " persons held to service or labor"
can have no more legal application to him, than to the person supposed in Mas
sachusetts, who should at one time be beaten into obedience, and afterwards
escape into Carolina.
* I am confident that Mr. Calhoun made the same admission within two or three
years last past, but I have not the paper contaming it at hand.

62
The word " held " being, in law, synonymous with the word " bound," the
description, "person held to service or labor," is synonymous with the descrip
tion in another Section, (Art. 1, Sec. 2), to wit, "those bound to service for a
term of years." The addition, in the one case, of the words "for a term of
years," does not alter the meaning," for it does not appear that, in the other
case, they are " held " beyond a fixed term.
In fact, every body, courts and people, admit that " persons bound to service
for a term of years," as apprentices and other indented servants, are to be de
livered up under the provision relative to " persons held to service or labor."
The word " held," then, is regarded as synonymous with " bound," whenever
it is wished to deliver up " persons bound to service." If, then, it he synony
mous with the word "bound," it applies only to persons who are "bound," in
a legal sense, — that is, by some legal contract, obligation, or duty, which the
law will enforce. The words cannot be stretched beyond their necessary and
proper legal meaning ; because all legal provisions in derogation of liberty
must be construed strictly. The same words that are used to describe a " per
son held to service or labor," by a legal contract, or obligation, certainly can
not be legally construed to apply also to one who is " held " only by private
violence, and brute force.
Mr. Webster, in his speech of March 7th, 1850, admits that the word " held "
is synonymous with the word " bound," and that the language of the consti
tution itself contains no requirement for the surrender of fugitive slaves. He
says —
" It may not be improper here to allude to that — I had almost said cele
brated — opinion of Mr. Madison. 'Fou observe sir, thai the term slavery is not
used in the constitution. The constitution does not require that fugitive slaves
shall be delivered up ; it requires that persons bound to service in one state, and
escaping into another, shall be delivered up. Mr. Madison opposed the intro
duction, of the term slave or slavery into the constitution ; for he said he did
not wish to see it recognized by the constitution of the United States of America
that there could be property in men."
Had the constitution required only that " persons bound to service or labor,"
should be delivered up, it is evident that no one would claim that the provision
applied to slaves. Yet it is perfectly evident also that the word " held "- ia
simply synonymous with the word " bound."
One can hardly fail to be astonished at the ignorance, fatuity, cowardice, or
corruption, that has ever induced the north to acknowledge, for an instant,
any constitutional obligation to surrender fugitive slaves.
The Supreme Court ofthe United States, in the Prigg case, (the first case in
which this clause of the constitution ever came under the adjudication of that
court), raade no pretence that the language itself of the constitution afforded
any justification for a claim to & fugitive slave. On the contrary, they made
the audacious and atrocious avowal, that for the sole purpose of making the
clause apply to slaves, they would disregard,— as they acknowledged them
selves obliged to disregard,— all the primary, established, and imperative rules
of legal interpretation, and be governed solely by the history of men's intentimt,
outside of the constitutions. Thus they say :

53
" Before, however, we proceed to the points more immediately before us, it
may be well, — in order to clear the case of difficulty , — to say, lhat in ihe e.\po-
silion of this part ofthe constitution, we shall limit ourselves to those consider
ations which appropriately and exclusively belong to it, without laying down
any rules of interpretation ofa more general nature. It will, indeed, probably,
be found, when we look to the character of the constitution itself, the objects
whicli it seeks to attain, the powers which it confers, the dulies vvhich it en
joins, and the rights vvhich it secures, as well as the known historical fact that
many of its provisions were matters of compromise of opposing interests and
opinions ; that no uniform rule of interpretation can be appUed io it, which
may not allow, even if it dofs not posiiively demand, many modifications in its
actual application io pftriicular clauses. And, perhaps, the safest rule of inter
pretation after all will be found to be to look to the niture and objects of tho
¦particular powers, dulies, and riglils, with all the lights and aids of contempo
rary history ; and to give to the words of each just such operation and force,
consistent with their legitimate meaninsf, as may fairiy secure and attain the
¦ends proposed. * * * * Historically, it is well known, lhat the object of
this clause was to secure to the citizens ot'the slaveholding states the complete
right and title of ownership in their slaves, as property, in every state in the
Union inte vvhich they might escape from the state where they were held in
servitude." 16 Peters, 618-11.
Thus it vvill be seen, that on the strength of history alone, tjiey assume that
^' many of the provisions ofthe constitution were, matters of compromise," (that
is, in regard to slavery) ; but they admit that the words of those provisions cannot
be made to express any sueh csmpromise, if they are interpreted according to any
*' uniform rule of interpretation," or " any rules of interpretation of a more
general nature," than the mere history of those particular clauses. Hence,
"in order to clear the case of (that) diffi-culiy.," they conclude that "perhaps
ihe safest rule of interpretation afier all will be found to be io look io the nature
and objects of the particular powers, duties, and rights, with all the lights and
aids of contemporary history ; and to give to the words of each just such opera
tion and force, consistent with their legitimate meaning, as may fairly secure
and attain the ends proposed."
The words " consistent with their legitimate meaning," contain a deliberate
falsehood, thrown in by the court from no other motive than the hope to hide,
in some measure, the fraud they were perpetrating. If it had been " consistent
with the legitimate meaning of the words" of the clause, fo apply them to
slaves, *' there would have been no necessity for discarding, as they did, all the
authoritative and inflexible rules of legal interpretation, and resorting to history
to find their meaning. They discarded those rules, and resorted to history, to
make the clause apply to slaves, for no other reason whatever, than that such
meaning was not " consistent with the legitimate meaning ofthe words." Il is
perfectly apparent that the moment their eyes fell upon the " words " of the
¦clause, they all saw lhat they contained no legal description of slaves.
Stripped, then, ofthe covering, which that falsehood was intended to throw
over th-eir conduct, the plain English of the language of the Court is this,— that
history tells us that certain, clauses of the constitution were intended to recog
nize and support slavery ; but inasmuch as such is not the legal meaning ofthe
words of those clauses, if interpreted by the established rules of interpretation,
we will, " in order to clear the -case of (that) difficulty," jiist discard those
5

54
rules, and pervert the words so as to make them accomplish whatever ends Ais-
tory tells us were intended to be accomplished by them.
It was only by such a naked and daring fraud as this, that the court could
make the constitution authorize the recovery of fugitive slaves.
And what were the rules of interpretation, which they thus discarded, "in
order to clear the case of difficulty," and make the constitution subserve the
purposes of slavery ? One of them is this, laid down by the Supreme Court bf
the United Stales :
" The intention of the instrument must prevail ; this intention must be col
lected from iis words." 12 Wheaton, 882.
Without an adherence to this rule, it is plain we could never know what was,
and what was not, the constitution.
Another rule is that universal one, acknowledged by all courts to be impera
tive, that language must be construed strictly in favor of liberty and justice.
The Supreme Court of the United States have laid dovvn this rule in these
trong terms.
"Where rights are infringed, where fundamental principles are overthrown,
where the general system ofthe laws is departed from, the legislative intention
must be expressed with irresistible clearness, to induce a court of justice to sup
pose a design to eff'ect such objects." United States vs. Fisher, 2 Cranch, 390.
Story delivered this opinion of the court, (in the Prigg case), discarding all
other rules of interpretation, and resorting to history to make the clause apply
to slaves. And yet no judge has ever scouted more contemptuously than Story,
the idea of going out ofthe words ofa law, or the constitution, and being gov
erned by what history may say were the intentions ofthe authors. He says,
" Such a doctrine would be novel and absurd. It would confuse and destroy
all the tests of constitutional rights and authorities. Congress could never pass
any law without an inquisition into the motives of every member ; and even
then they might be re-examinable. Besides, what possible means can there be
of making such investigations ? The motives of many of the members may be,
nay must be, utterly unknown, and incapable of ascertainment by any judicial
or other inquiry ; they may be mixed up in various manners and degrees ; they
may be opposite to, or wholly independent of each other. The constitution
would thus depend upon processes utterly vague, and incomprehensible ; and
the written intent of the legislature upon its words and acts, the lex scripta,
woirid tie contradicted or obliterated by conjecture, and parol declarations, and
fleeting reveries, and healed imaginations. No government on earth could rest
for a moment on such a foundation. It would be a constitution of sand, heaped
up and dissolved by the flux and reflux of every tide of opinion. Every act of
the legislature, (and for the same reason also every clause ofthe constitution),
must therefore be judged of from its objects and intent, as they are embodied
in its provisions." 2 Story's Comm., 534.
Also he says.
The constitution was adopted by the people ofthe United States; audit was
submitted to the whole, upon a just survey of its provisions, as they stood in
¦the text itself. * * Opposite interpretations, and different explanations of
different provisions, may well be presumed lo have been presented in difierent
bodies, to remove local objections, or to win local favor. And there can be no
, certainty, either that the different state conventions, in ratifying the constitu
tion, gave the same uniform interpretation to its language, or that, even in a

55
single state convention, the same reasoning prevailed, with a majority, rauch
less with the whole, of the supporters of it. * * It is not to be presumed
that even in the convention which fi-amed the constitution, from the causes
above mentioned, and other causes, the clauses were always understood in the
same sense, or had precisely the same extent of operation. Every member ne
cessarily judged for himself ; and the judgment of no one could, or ought to be,
conclusive upon lhat of others. * * JVoihing but the text itself was adopted
by the people. * * Is the sense of the constitution to be ascertained, not by its
own text, but by the ' prob.ible mean'ng,' to be gathered by conjectures from
scatftred documents, from private papers, from the table-talk of some states
man, or the jealous exaggerations of others? Is th^ constitution ofthe United
States to be the only instrument, which is not to he interpreted by what is writ
ten, but by probable guesses, aside from the text ?• What would be said of in
terpreting a statute ofa state legislature, by endeavoring to find out, from pri
vate sources, the objects and opinions of every member; how every one thought;
what he wished; hovv he interpreted it ? Suppose different pei'sons had differ
ent opinions, what is to be done ? Suppose different persons are not agreed as
to the ' probable meaning ' of the framers, or of the people, what interpreta
tion is to be followed ? These, and many questions ofthe same sort, might be
asked. It is obvious, that there can he no security to ihe people in any constitu
tion of government, if they are not to judge of it by the fair meaning of ihe
words ofthe text, but the words are to be bent and broken bythe 'probable mean
ing' of persons, whom they never knew, and whose opinions, and means of in
formation, may be no better than their own? The people adopted the constitu
tion, according to the words of the text in their reasonable interpretation, and'
not according to the private interpretation of any particular men."
1 Story's Comm. on Const., 387 to 392.
And Story has said much more ofthe same sort as to the absurdity of relying
upon " history " for the meaning of the constitution.
It is manifest that if the meaning of the constitution is to be warped in the
least, it may be warped to any extent, on the authority of histoiy; and thus it
would follow that the constitution would in reality be made by the historians,
and not by the people. It would be impossible for the people to make a con
stitution, which the historians might not change at pleasure, by simply assert
ing that the people intended thus or so.
But, in truth. Story and the court, in saying that history tells us that the
clause ofthe constitution in question, was intended to apply to fugitive slaves,
are nearly as false to the history ofthe clause, as they are to its law.
There is not, I presume, a word on record, (for 1 have no recollection of hav
ing ever seen or heard of one), that was uttered either in the national conven
tion that framed the constitution, or in any northern state convention that rati-:
fied it, that shows that, at the time the constitution was adopted, any northern
man had the least suspicion that the clause of the constitution, in regard to
" persons held to service or labor," was ever to be applied to slaves.
In the national convention, " Mr. Butler and Mr. pinckney raoved to require
' fugitive slaves and servants to be delivered up like criminals.' " " Mr. Sher
man saw no more propriety in the public seizing and surrendering a slave or ser
vant, than a horse." (Madison papers, 1447-8.)
In consequence of this objection, the provision was changed, audits language,
as it now stands, shows that the claim to the surrender of slaves was abandon
ed, and only the one for servants retained.*
* Servants were, at that time, a very numerous class in all the states ; and there
were many laws respecting them, aU treating them as a distinct class frora slaves.

56
It does not appear that a word was ever utteied, in the national convention,
to show that any member of it imagined that the provision, as finally agreed
vpon, would apply to slaves.
But after the national convention had adjourned, Mr. Madison went home to
Viroinia, and Mr. Pinckney, to South Carolina, and in the Stute conventions of
those states, set up the pretence that the clause was intended to apply to slaves.
I think thei-e is no evidence that any other southern member of the national
convention followed their example. In North Carolina, Mr. Iredell, (not a
member ofthe national convention), said the provision was intended to refer to
slaves; but that "The northern delegates, owing to their particular scruples
on the subject of slavery, did not choose the word slave to be mentioned."
I think the declarations of these three men, Madison, Pinckney, and Iredell,
are all the " history " we have, that even southern men, at that time, under
stood the clause as applying to slaves.
In the northern conventions no word was ever uttered, so far as we have any
evidence, that any man dreamed that this language would ever be understood as
authorizing a claim for fugitive slaves. It is incredible that it could have passed
the northern conventions without objections, (indeed it could not have passed
them at all), if it had been understood as requiring them to surrender fugitive
slaves; for, in several of them, it was vvith great difficulty that the adoption of
the constitution was secured, when no such objection was started.
The construction, placed upon the provision at the present day, is one ofthe
many frauds which the slaveholders, aided by their corrupt northern accompli
ces, have succeeded in palming off upon the north. In fact the south, in the
convention, as it has ever done since, acted upon the principle of getting by
fraud, what it could not openly obtain. It was upon this principle that Mr.
Madison acted when he said that they ought not to admit, in the constitution,
the idea that there could be property in man. He would not admit that idea,
in the constituiion itself; but he immediately went home and virtually told the
State convention that that was the meaning which he intended to have given to
it in practice. He knew well that if that idea were admitted in the instrument
itself, the north vvould never adopt it. He therefore conceived and adhered
to the plan of having the instrument an honest and free one in its terms, to se
cure its adoption by the north, and of then trusting to the fraudulent interpre
tations that could be accomplished afterwards, to make it serve the purposes of
slavery. Further proof of his fraudulent purpose, in this particular, is found in the fact
that he wrote the 42d number of the Federalist, in which he treats of " the
po-.vei's vvhich provide forthe harmony and proper intercourse among the states."
But he inakes no mention ofthe surrender of fugitives from " service or labor,"
as one ofthe means of promoting that "harmony and proper intercourse.'' He
did not then dare say to the north that the south intended ever to apply that
clause to slaves.
But it is said that the passage ofthe act of 1793, shows that the north under
stood the constitution as requiring the surrender of fugitive slaves. That act
is supposed to have passed without opposition from the north j and the reaso&

57
was that it contained no authority for, or allusion to, the surrender of fugitive
slaves; but only to fugitives from justice, and " persons held to service or
labor." The south had not at that time become sufficiently audacious to make
such a demand. And it was twenty-six years, so far as 1 have discovered, (and
I have made reasonable search in the matter), after the passage of that act,
before a slave was given up, under it, in any free state, or the act was acknowl
edged by the supreme court of any free state, to apply to slaves.
In 1795, two years after the passage of the act of congress, and after the
constitution had been in force six years, a man was tried in the supreme court
of Pennsylvania, on an indictment, under a statute of the state, against seduc
ing or carrying negroes or mulattoes out of the state with the intention to sell
them, or keep them, as slaves.
"Upon the evidence, in support of the prosecution, it appeared that negro
Toby had been brought upon a temporary visit to Philadelphia, as a servant in
the family of General Sevier, of the state of Virginia ; that when General Sevier
proposed returning to Virginia, the negro refused to accompany him" — but was
afterwards forcibly carried out of the state. It appeared also in the evidence,
that it wa.s proposed, by'Richards, the defendant, that the negro be enticed into
New Jersey, (a slave state), and there seized and carried back to Virginia.
"The evidence, on behalf of the defendant, proved that Toby was a slave
belonging to the father of General Sevier, who had lent him to his son, merely
for the journey to Philadelphia."
The defendant was found not guilty, agreeable to the charge of the Chief
Justice; and what is material is, that the case was tried wholly under the laws
of Pennsylvania, which permitted any traveller, who came into Pennsylvania,
upon a temporary excursion for business or amusement, to detain his slave for
six months, and entitled him to the aid of the civil police to secure and carry
him away. Republica vs. Richards 2 Dallas 224.
Not one word was said, by either court or counsel, of the provision of the
United States constitution, in regard to " persons held to service or labor," or
ofthe act of 1793, as having any application to slaves, or as giving any author
ity for the recovery of fugitive slaves. Neither the constitution, nor the act of
Congress was mentioned in connection with the subject.
Is it not incredible that this should have been the case, if it had been under
stood, at that day, that either the constitution, or the act of 1793, applied to
slaves ?
Would a man have used force in the case, and thus subjected himself to the
risk of an indictment under the state laws ? or would there have been any pro
position to entice the slave into a slave state, for the purpose of seizing him, if
it had been understood that the laws of the United States were open to him,
and that every justice of the peace (as provided by the act of 1793) was author
ized to deliver up the slave ?
It cannot reasonably be argued that it was necessary to use force or fraud to
take the slave back, for the reason that he had been irougAi, instead of having
escaped, into Pennsylvania, for that distinction seems not to liave been thought
of until years after. The first mention I have found of it was in 1806.
Sutler vs. Hopper, 1 Washington C. C. R. 499.

68
In 1812 it was first acknowledged by the supreme court of New York, thaf
the act of 1793, applied to slaves, although no slave was given up at the time.
ButNew York then had slaves of her own. Glen vs, Hodges, 9 Johnson 67.
In 1816 Ihe supreme court of Pennsylvania first acknowledged that the con
stitution and the act of 1793 applied to slaves. But no slave was then given
up. Commonwealth vs. Holloway, 2 Sargent ^ Rawle 305.
In 1823 the supreme court of Massachusetts first acknowledged that the con
stitutional provision in regard to " persons held to service or labor " applied to
slaves. Commonwealth vs. Griffith,'', Pickering \\.
Few, if any, slaves have ever been given up under the act of 1793, in the free
states, until within the last twenty or thirty years. And that fact furnishes
ground for a strong presumption that during the first thirty years after the
constitution went into operation, it was not generally understood, in the free-
states, that the constitution required the surrender of fugitive slaves.
But it is said that the ordinance of 1787, passed contemporaneously with the
formation of the constitution, requires the delivery of fugitive slaves, and that
the constitution ought to be taken in the same sense. The answer to this alle
gation is that the ordinance does not require the delivery of fugitive slaves, but
only of persons " from whom labor or service is lawfully claimed." This lan
guage certainly is no legal description ofa slave.
But beyond, and additional to, all this evidence, that the constitution does not
require the surrender of fugitive slaves, is the conclusive and insuperable fact,
that there is not now, nor ever has been, any legal or constitutional slavery in
this country, from its first settlement. All the slavery that has ever existed,^
in any of the colonies or states, has existed by mere toleration, in defiance of
the fundamental constitutional law.
Even the statutes on the subject have either wholly failed to declare who
might, and who might not, be made slaves, or have designated them in so loose
and imperfect a manner that it would probably be utterly impossible, at this
day, to prove under those statutes, the slavery of a single person now living.
Mr. Mason admits as much in the extracts already given from his speech.
But all the statutes, on that subject, whatever the terms, have been uncon
stitutional, whether passed under the colonial charters, or since under the state
governments. They were unconstitutional under the colonial charters, because
those charters required the legislation of the colonies to " be conformable, as
nearly as circumstances would allow, to the laws, customs, and rights of the
realm ofEngland." Those charters were the fundamental constitutions ofthe
colonies, and of course made slavery illegal in the colonies — inasmuch as slav
ery was inconsistent with the " laws, customs, and rights of the realm of Eng
land."*

* Washburn, in his "Judicial History of Massachusetts," (p. 202), says,
" As early as 1770, and two years previous to the decision of Somersett's case so fa
mous in England, the right of a master to hold a slave had been denied, by the Supe-

69
There was therefore no legal slavery in this country, so long aa we were coU
onies — that is, up to the time of the revolution.
After the Declaration of Independence, new constitutions were established in
eleven of the states. Two went on under their old charters. Of all the new
constitutions, that were in force at the adoption of the constitution of the
United States, in 1789, not one authorized, recognized, or sanctioned slavery.*
Ml the recognitions of slavery, that are now to be found in any of the state con
stitutions, have been inserted since the adoption of ihe constitution of the United
States. There vvas therefore no legal or constitutional slavery, in any of the states,
up to the time ofthe formation and adoption ofthe constitution ofthe United
States, in 1787 and 1789.
There being no legal slavery in the country, at the adoption ofthe constitution
ofthe United States, all " the people of the United States" become legally
parties to that instruraent, and of course members of the United States govern
ment, by its adoption. The constitution itself declares that " We the people
of the United States * * do ordain and establish this constitution." The
term "people " of necessity includes the whole people; no exception being
made, none can be presumed — for such a presumption would be a presumption
against liberty.
After " the people " of the whole country had become parties to the con
stitution ofthe United States, their rights as members of theUnited States gov
ernment were secured by it, and they could not afterwards be enslaved by the
state governments — for the constitution of the United States is " the supreme
law," (operating " directly on the people and for their benefit," say the su
preme court, 4 Wheaton 404-5) , and necessarily secures to aH the people in-

rior Court of Massachusetts, and upon the sarae grounds, substantially, as those upon
which Lord Mansfield discharged Somersett, when his case came before him. The
ease here alluded to, was James vs. Lechmere, brought by the Plaintiff, a, negro,
against his master to recover his freedom."
* Perhaps it may be claimed by some that the constitution of South Carolina waa
an exception to this rule. By that constitution it was provided that the qualifications
of members of the Senate and House of Representatives " sJiall le the same as mentioned
in the election act."
" The election act " was an act of the Provincial Assembly passed in 1759, which
provided that menibers ofthe assembly "shall have in this province a settled planta
tion or freehold estate of at least five hundred acres of land, and twenty slaves."
But this act was necessarily void, so far as the requirement in regard to slaves was
concerned, because slavery being repugnant to the laws of England, it could have no
legal existence in the colony, which was restricted from makmg any laws except such
as were conformable, as nearly as circurastances would allow, to the laws, statutes,
and rights of the realm ofEngland.
This part of the act, then, bemg void at the time it was passed, and up to the time
of the adoption of the constitution of the State, the provision in that constitution could
not legally be held to give force to this part [of the act. Besides, there could be no
slaves, legally speaking, in 1778, for the act to refer to.

60
dividually all the rights it intended to secure to any; and these rights are such
as are incompatible with their being enslaved by subordinate governments.
But it will be said that the constitution of the United States itself recognizes
slavery, to wit, in the provision requiring " the whole number oi free persons"
and " three fifths of all other persons " to be counted in making up the basis
of representation and taxation. But this interpretation ofthe word " free " is
only another of the fraudulent interpretations, which the slaveholders and their
northern accomplices have succeeded in placing upon the constitution.
The legal and technical meaning ofthe word "free," as used in England for
centuries, has been to designate a native or naturalized member of the state,
as distinguished from an alien, or foreigner not naturalized. Thus fhe term
"/rec British subject " means, not a person who is not a slave, but a native
born, or naturalized subject, who is a member of the state, and entitled to all
the rights ofa member ofthe state, in contradistinction to aliens, and persons
not thus entitled.
The word " free " was used in this sense in nearly or quite all the colonial
charters, the fundamental constitutions of this country, up to the time of the
revolution. In 1787 and 1789, when the United States constitution was adopt
ed, the word "free " was used in this political sense in the constitutions ofthe
three slaveholding states, Georgia, South Carolina, and JVorth Carolina. It
was also used in this sense in the articles of Confederation.*
The word "free " was also used in this political sense in the ordinance of
1787, in four different instances, to wit, three times in the provision fixing the
basis of representation, and once in the article of compact, which provides that
when the states to be formed out of the territory should have sixty thousand
free inhabitants, they should be entitled to admission into the Confederacy.
Thatthe word "free" was here used in its political sense, andnot aa the correl
ative of slaves, is proved by the fact that the ordinance itself prohibited slavery
in the territory. It would have been absurd to use the word " free " as the
correlative of slaves, when slaves were to have no existence under the ordi
nance. This political meaning, which the word " free " had borne in the English law,
and in all the constitutional law of this country, up to the adoption of the con
stitution of the United States, was the meaning which all legal rules of inter
pretation required that congress and the courts should give to the word in that
instrument. But we are told again that the constitution recognizes the legality of the
slave trade, and by consequence the legality of slavery, in the clause respecting
the " importation of persons." But the word " importation," when applied to
" persons," no more implies that the persons are slaves, than does the word
" transportation." It was perfectly understood, in the convention that framed
the constitution — and the language was chosen with special care to that end —
that there was nothing in the language itself, that legally recognized the slav
ery ofthe persons to be imported; although some of the members, (how raany
* For proof that such was the meaning ofthe word "free " iu those instmments, I
must refer to my argument on " The Unconstitutionality of Slavery."

61
we do not know), while choosing language vvith an avowed caution against
" admitting, in the constitution , the idea that there could be property in man,"
intended, if they could induce the people to adopt the constitution, and could
then get the control of the government, to pervert this language into a license
to the slave trade.
This fraudulent perversion of the legal meaning of the language ofthe con
stitution, is all the license the constitution ever gave to the slave trade.
Chief Justice Marshall, in the case of the Brig Wilson, (1 Brockenbrough,
433-5), held that the words " import " and " imported," in an act of Congress,
applied to free persons as well as to slaves. If, then, the word " importation,"
in the constitution, applies properly to free persons, it certainly cannot imply
that any ofthe persons imported are slaves.
If the constitution, truly interpreted, contain no sanction of slavery, the
slaves of this country are as much entitled to the writ of habeas corpus at the
hands of the United States government, as are the whites.

B

Authorities for the Right of the Jury to judge of the Law in Criminal Cases.
The House of Representatives of the United States, by a vote of more than
two to one, once affirmed the right ofthe jury to judge of the law, in criminal
cases, tobe an " indisputable right," — and impeached one of the Justices of
the Supreme Court of the United States for infringing it. The following is a
copy of the caption, and one of the articles, of an impeachment, found by the
House of RepVesentatives, (in 1804), against Samuel Chase, one of the Judges
ofthe Supreme Court.
" Articles exhibited by the House of Representatives of the United States, in
the name of themselves, and of all the people of the United States, against
Samuel Chase, one of the Associate Justices of the Supreme Court of the United
States, in maintenance and support of their impeachment against him, for high
crimes and misdemeanors." ARTICLE I.
That unmindful ofthe solemn duties of his office, and contrary to the sacred
obli<ration by which he stood bound to discharge them " faithfully and imparti-
allyfand without respect to persons," the said Samuel Chase, on the trial of
John Fries, charged with treason before the Circuit Court of the United States,
held for the district of Pennsylvania, in the city of Philadelphia, dunng the
months of April and May, one thousand eight hundred, whereat the said Samuel
Chase presided, did, in his judicial capacity, conduct himself m a manner highly
arbitrary, oppressive, and unjust, viz. .• <¦ , .u
1 In delivering an opinion, in writing, on the question of lavv, on the con
struction of which, the defence of the accused materially depended, tending to
preiudice the minds of the jury against the case of the said John Fries, the
prisoner, before counsel had been heard in his defence. v. r- r v.
2 In restricting the counsel for the said Fries from recurring to such English
authorities as they believed apposite ; or from citing certain statutes of the

62
United States, which they deemed illustrative ofthe positions, upon which they
intended to rest the defence of their client.
3. In debarring the prisoner frora his constitutional privilege of addressing the ¦
jury (through his counsel) on the law, as well as on the fact, which was lo de
termine his guilt, or innocence, and at the same time endeavoring to wrest from,
the jury their indisputable right to hear argument, and determine upon ihe ques
tion of law, as well as the question of fact, involved in the verdict which they
were required to give :
In consequence of which irregular conduct ofthe said Samuel Chase, os dan
gerous to our liberties, as it is novel to our laws and usages, ihe said John Fries
was deprived of the right, secured to him by the eighth article amendatory of
the constitution, and was condemned to death without having been heard hy
counsel, in his defence, to the disgrace ofthe character ofthe American bench,
in manifest violation of law and justice, and in open contempt of the rights of
juries, on which, ultimately, rest the liberty and safety of ihe American people."
This charge was made by the House of Representatives, against that judge,
by a vote of 83 yeas, to 34 nays. Of course, all those who voted for this
charge, believed it to be an " indisputable right of the jury to hear argument,
(on the law), and determine upon the question of law, as well as the question
of fact, involved in the verdict," and that an infringement of that right was
both " dangerous to our liberties," and " novel to our laws and usages," a
" manifest violation of law and justice," an " open contempt of the rights of
juries, on which, ultimately rest the liberty and safety of the American people."
Whether those who voted nay, had the same opinion on this point, or whether
they voted nay on the ground that the fact of the infringement of the right of
the jury was not sufficiently proved, does not appear.
The judge was tried by the Senate on this impeachment. On the trial it was
proved that, although the judge, before the trial of Fries was commenced,
gave notice to the counsel of Fries that he should lay some restrictions upon
them, in addressing the jury on the law, and in citing ancient English authori
ties, which he considered inapplicable and improper, yet when those restrictions
were objected to, he gave them notice that they might have full freedom in
those particulars. It also appeared that in his charge to the jury, he said to
them :
" It is the duty of the court in this case, and in all criminal cases, to state
to the jury their opinion of the law arising on the facts ; but the jury are to
decide on the present and in all criminal cases, both the law and the facts, on
their consideration ofthe whole case."
But notwithstanding his offer of entire freedora to the counsel of Fries in
arguing the law, and citing authorities, as they should think proper, and not
withstanding his charge to the jury, distinctly instructing them that they were
judges of the law as well as the fact, in that and in all criminal cases, yet, inas
much as his conduct at the first had been somewhat arbitrary and improper, and
such as it was supposed, might prejudice the minds ofthe jury against Fries, on
the question of law involved in his defence, sixteen out of thirty-four Senators
voted to convict the judge, on this charge of infringing the right of the jury to
judge ofthe law. The sixteen Senators, who voted for his conviction, of course
held that the jury had the right to judge of the law. And it is not only suppos-
able, but highly probable, that of the eighteen Senators, who voted for his ac-

63
quittal, some or all held the same opinion, but believed that the judge had not
really infringed, or intentionally infringed, the right of the jury in that par
ticular. Thus we have the decided opinions of eighty-three, out of one hundred and
seventeen members of the House of Representatives, and of sixteen out of
thirty-four, Senators, of the United States, in favor of the doctrine that the jury
have the right to judge of the law, — vvhile there is no distinct evidence that
either ofthe other thirty-four Representatives, or the other eighteen Senators,
repudiated the doctrine.
The Supreme Court ofthe United States also, in a charge given to a jury,
in a civil case, (John Jay, Chief Justice, doing it in behalf of the whole court),
gave these instructions to them : —
" It may not be amiss, here gentlemen, to remind you of the good old rule,
that on questions of fact, it is the province ofthe jury, on questions of law, it is
the province ofthe court, to decide. But it must be observed, that by the same
law that recognizes this reasonable distribution of jurisdiction, you have never
theless a right to take upon yourselves to judge of both, and to determine the law
as well as the fact in controversy. On this, and on every other occasion, how
ever, we have no doubt you will pay that respect, which is due to the opinion
ofthe court ; for, as on the one hand, it is presumed that juries are the best
judges of facts, it is, on the other hand, presumable that the court are the best
judges of law. But still both objects are lawfully within your power of
decision." The State of Georgia vs. Srailsford, et al. (3 Dallas 4).
On the 14th of July, 1798, Congress passed an act for punishing certain libels
against the government ofthe United States. By this act it was declared that
" the jury who shall try the cause, shall have a right to determine the law and
the fact, under the direction ofthe court, as in other cases."
The words " under the direction ofthe court," may, to unprofessional read
ers, make the meaning of this provision equivocal. Such readers may think the
word " direction," equivalent to " dictation." But if that meaning were given
to it, the provision vvould be absurd, — vvould contradict itself, — for then the
jury would not "have the right to determine the law and the fact," as the
statute provides that they shall have ; but the law would be determined by
the court, and the jury would be bound by their determination. The
word " direction," then must mean something that is consistent with the
jury's " determining the law and the fact," instead of their being bound by any
opinion ofthe court. And that meaning can only be one that is equivalent to
advice, guidance, information, instruction, and assistance, which every body
admits that a court have a right, and are bound, to render to a jury, still leav
ing them finally to determine the matter for themselves, — as we see was done
by the Supreme Court in the case just cited.
The use of the words " as in other cases," is an admission, on the part of
Congress and the president, that " in other cases " " the jury have the right lo
determine the law and the fact."
In addition to these opinions of Congress, the President, and of the Supreme
Court ofthe United States, I add some other eminent authorities, on both sides
ofthe question.
James Wilson, one of the signers of the Declaration of Independence, one of

64
'the most distinguished among the framers of the United States constitution,
and afterwards one of the Judges of the Supreme Court of the United States,
says,— " It is true, that, in matters of law, the jurors are entitled fo fhe assistance
of the judges ; but it is also true that, after they receive it, they have the right
of judging°for themselves." 1 Wilson's Works, 12.
" The Roman juries were iudges of law as well as of fact."
•* 2 Wilson's Works, 320.
" The antiquity of this institution among the most civilized people of the
world, is urged as an argument, that it is founded in nature and original justice.
The trial by a juiy of our own equals seeras to grow out of the idea of just gov
ernment, and is founded in the nature of things." 2 Wilson's Works, Z19.
In the case of United States vs. Battiste, Story said it had been the opinion of
" the whole of his professional life," that the jury had not the right to judge of
the lavv. 2 Sumner, 243.
In United States vs. Wilson, Justice Baldwin, of the Supreme Court of tbe
United States, held that the jury had the right to judge of the law.
Baldwin's C. C. R. 108.
Tvvo years afterwards, in the case of United States vs. Shive, the same judge
held that they had not the right to judge of a particular question of law put in
issue in that case. Baldwin's Rep., 510.
In 1804, the Judges ofthe Supreme Court of New York, in a case of libel,
were equally divided in opinion on the question, — Kent and Thompson being m
favor ofthe right, and Lewis and Livingston against it.
The People vs. Croswell. 3 Johnson's Cases, 337.
At the next session of the legislature of New York an act concerning libels
*' passed both houses unanimouely " providing,
" That on every such indictment or information, the jury, who shall tr"- the
same, shall have a right to determine the law and the fact, under the direction
ofthe court, as in other criminal cases." 3 Johnson's Cases, 412.
In Commonwealth vs. Knapp, (1830), the Supreme Court of Massachusetts
said, —
" As the jury have the right, and, if required by the prisoner, are bound, to
return a general verdict of guilty, or not guilty, they must necessarily, in the
discharge of this duty, decide such questions of law as well as of fact, as are
involved in the general question. * * *
" It is their duty to decide all points of law, which are involved in the gen
eral question ofthe guilt or innocence ofthe prisoner." 10 Pickering, 496.
In Commonwealth vs. Kneeland, (1838), the same court said, —
" In criminal cases, by the form in which the issue is made up, the jury pass
upon the whole matter of law and fact." 20 Pickering, 222.
In Commonwealth vs. Porter, (1845), the same court decided that the jury
had not the right to judge of the law, but were bound to take it as laid down to
them by the court. 10 Metcalf, 263.
In the case of Townsend vs. the State, the Supreme Court of Indiana held
that the jury had net the right to judge of the law. 2 Blackford, 151.

65
Two years afterwards, in the cases, Warren vs. the State, and Armstrong vs.
the State, the same court held that the jury had the right to judge of the law.
4 Blackford, 150-249.
In the case of Pierce vs. the State, the Supreme Court of Nevv Hampshire
held that the jury had not this right. 13 .A^. H. Rep., 536.
In the case of the State vs. Snow, the Supreme Court of Maine, say, —
" The presiding judge erred, in determining that, in criminal cases, the jury
are not the judges of the law as well as the fact. Both are involved in the issue
they are called upon to try ; and the better opinion very clearly is, that the
law and the fact ai>e e<juaHy submitted to their determination." 6 Shepley, 348.
In the case ofthe State vs. Jones, the Supreme Court of Alabama say, —
" The power of the jury to judge both of law and fact, results necessarily
from the very constitution of that body, and from their right to find a general
verdict (of not guilty) for the prisoner, vvhich the court cannot disturb * *
When a juror is sworn, he is invested with the office of judge, and authorized
to pronounce th« law in the particular case he has to try, and does so when he
renders his verdict, whether he abides by, or disregards the opinion of the
court." 5 Alabama Reports, 672-3.
In the case of Montgomery vs. Ohio, the Supreme Court of Ohio held that
the jury had not the right to judge of the law. 11 Ohio Rep., 424.
In Montee vs. Comraonw-ealth, the Supreme Court of Kentucky said,—
¦"They (the jury), have the right, in all cases, to find a general verdict of
guilty or not guiUy. As guilt or innocence, is a deduction from the law and
facts ofthe case, the jury must, therefore, necessarily decide the \a.w , incident-_
ally, as well as the facts, before they can say that the accused is guilty or not
gailty." 3 /. J. Marshall, 149.
The constitution of Kentucky declares that " in all indictments for libels, the
jury shall have a right to determine the law and the facts, under the direction
ofthe court, as in other cases."
The constitution of Indiana has the same provision.
The constitution of Illinois has the same provision.
The constitution of Texas has the same provision-
The constitution of Ohio has tbe same provision.
The constitution of Tennessee provides that "in all indictments for libels,
the jury shall have a right to determine the law and the facts, under the direc
tion ofthe court, as in other criminal cases."
The constitution of Michigan provides that " in all prosecutions or indict
ments for libels, » * the jury shall have the right to determine the law
and the fact."
The constitution of Missouri declares that " in all prosecutions for libels, the
truth may be given in evidence, and the jury may determine the law and the
facts under the direction ofthe court."
The constitution of Arkansas provides that " in all indictments for libels, the
jury shall have the right to determine the law and the facts."
The constitution of Wisconsin says that " in all criminal prosecutions or
indictments for libel, * » * the jury shall hav« the right to determine the
Jaw and the fact." 6

66
The constitution of Mississippi declares that " in all prosecutions or indict
ments for libels, * * * the jury shall have the right to determine the law
and the facts under the direction ofthe court."
The constituiion of Maine declares that "in all indictments for libels, the
jury, after having received the direction of the court, shall have aright to deter
mine, at their discretion, the law and the fact."
The new constitution of New York provides that " in all criminal prosecu
tions or indictments for libels, * * * the jury shall have the right to deter
mine the law and the fact."
The foregoing statutory and constitutional provisions for the right of the jury
to judge ofthe lavv in cases ol libel, had their origin in a false decision by Lord
Mansfield, in 1784, in which he held that, in the trial of an indictment for libel,
'the jury had no right to take it upon themselves lo judge whether the writing
charged as libellous, was really so, or not, — but that they must leave lhat
question wholly vvilh the court. 3 Term Reports, 428 note.
This decision created rauch agitation in England, inasmuch as its efiect was
to give lo the judiciary the poiver to restrain, within such limits as it pleased,
the freedom of the press, in the discussion of the characters and conduct of
public men. To remove any doubts excited by the decision, and to maintain
the legitimate freedom ofthe press, Pailiament soon after passed a special act,
" that on the trial of an indictment or information for a libel, the jury may give
a general verdict of guilty or not guilty, upon the whole matter put in issue,
and shall not be required or directed by the court or judge to find the defendant
guilty, merely on the proof of the publication by the defendant of the paper
charged to be a libel, and of the sense ascribed to the same in the indictment
or information." Stat. 32 Geo. 3, c. 60.
The purport of this act is that the jury may judge both of the law and the
fact. The example of Parliament was followed extensively in this country, as the
preceding citations show.
On the general question ofthe right ofthe jury to judge ofthe law, in crimi
nal cases, there has been for centuries the same disagreement araong judges in
England as in this country. If this disagreement proves nothing else, it at least
proves this, that the perraanent judiciary are utterly unworthy to be intrusted
with the decision ofthe law in crirainal cases. If after centuries of controversy,
they cannot deterraine a point so important to the liberties of a people as is the
one whether the jury may rightfully judge of the law ? that is, whether " the
country " may judge of its own liberties ? they are manifestly unfit to be en
trusted vvith the decision of any other question involving the freedom of the
people.

Mansfield's argument against the Right of ihe Jury to judge of the law in crim
inal cases.
Mansfield's argument, if argument it can be called, against the right of the
jury to judge ofthe law, is this.
"They (the jury) do not know, and are not presumed to know, the law;
they are not sworn to decide the law ; they are not required to do it. * *
The jury ought not to assume the jurisdiction of law; they do not know, and
are not presumed to know, any thing of the matter; they do not understand
the language, in which it is conceived, or the meaning ofthe terms; they have
no rule to go by but their passions and wishes." 3 Term Rep. 428 note.
One answer to this argument is, that the jury are the " peers " of the ac
cused, and consequently are supposed to know the law as well as he does. He
is presumed to know the law, otherwise he could not be held guilty ofa crimi
nal intent in violating it. If, then, he is rightfully presumed to know the law,.
his "peers" must be presumed equally to know it. If his "peers" do not
know the law, then it must be presumed that he did not know it, and that he
therefore had no criminal intent in transgressing it. '
The effect, therefore, of trial by jury, in criminal cases, is to hold no accused
person responsible for a more precise or accurate knowledge ofthe law, than is
common to his fellow men. And this is all that he ought to be held responsible
for. Ifhe is to be held responsible for a more accurate knowledge of the law
than his " peers " — his fellow-men in the same rank and condition of life — he
is liable to be held guilty in law, when he had no criminal intent, and had been
guilty of no culpable neglect in ascertaining the law — for that neglect cannot
be legally culpable, which is common to the mass of mankind.
Mansfield's argument goes to this extent, that the common people, (such as
juries are composed of), knovv nothing of the law, and are not presumed to
know any thing of it; and yet, if one of their number transgress it, he is then
presumed to have known it, and to have had a criminal intent, (without which
there can be no crime), in transgressing it.
This doctrine looks as 'iC judges, as well as juries, sometimes " had no rule to
go by but their passions and wishes." Whatever imperfection there raay be in
the judgment of juries, I apprehend they have never, (unless under the dictation
of a court), acted upon so atrocious a principle as the one here avowed by
Mansfield. Mansfield's argument is the argument of all who oppose the right ofthe jury
to judge ofthe law. And it seems to prove very satisfactorily that, if the peo
ple cannot trust their liberties in their own hands, there is little hope for them at
the hands of judges — for the doctrine of those, who oppose the right of the jury
to judire ofthe law, is, that tho people must trust their liberties in the hands of
judges, whose reasons and rules of judgment are unintelligible to the people.

68
and the justice or injustice of whose decisions the people consequently cannot
understand. This doctrine supposes that it is not necessary that the people should know,
for themselves, whether they are living under a just government, or a tyranni
cal one; that if they are ever punished for doing what they think they have a
right to do, and what they think they never gave up their right to do, it is quite
sufficient for them to have the word of the judges that the punishment is ac
cording to lavv.
Such liberty as this, Mansfield no doubt thought was good enough for man
kind at large. But whether it is such liberty as will always satisfy the people
themselves, remains to be seen. They will probably prefer a liberty, that is a
little more intelligible, even though it should be, (what in reality it would not
be), a little less refined.
The people, it is true, are not very learned in the laws. But they have suffi
ciently clear ideas of liberty, justice, and men's natural rights, to be reasonably
competent to determine whether, in a given case, one man has infringed the
rights of another, and ought to be punished therefor. And it seems to be a
somewhat strong trait in the Anglo-Saxon character, that they prefer fo trust
their liberties in the hands of their " peers,"' rather than in the hands of judges,
whose pretended superiority in knowledge may be merely a cloak for practising
such oppressions as cannot be otherwise justified to the minds of those who are
the subjects of them.
Story's argument is substantially the same with Mansfield's, (United States
vs. Battiste, 2 Sumner, 243.)
Mansfield and Story, I think, are the most distinguished authorities of modern
times, against the right ofthe jury to judge of the law. One would infer from
their opinions, and the grounds of them, that neither had ever heard, or sup
posed that the world had ever heard, ofthe comraon law of England, or of such
an instrument as Magna Charta.
The idea that, in this country, where the people institute government for the
preservation of their rights, a'nd where they must be presuraed to know what
rights they had in view in so doing, they are not competent, as jurors, to judge
when those rights are invaded, is absurd.
It cannot be said that if they judge of the law, their ignorance may be dan
gerous to the prisoner; because if he be convicted against law, he has his ap
peal to the court. Itis only when they acquit, that their judgment is final.
Magna Charta does not say that a man shall be punished by the judgment of
his peers; but only that he shall not be punished " unless by the judgment of
his peers." He may be acquitted, but cannot be convicted, against their judg
ment.

69

D
Effect of Trial by Jury, in nullifying other Legislation than the Fugitive
Slave Laws.
If jurors, in criminal cases, have the right to judge ofthe law, of its constitu
tionality, and its justice, the trial by jury can be made eflScient for nullifying
nearly all unconstitutional and unjust legislation ; because it makes it safe to
violate, and resist the execution of it.
It would, for instance, make it safe to resist the execution of all those un
equal and iniquitous revenue laws, which in reality confiscate ten, twenty,
thirty, or fifty per cent of one man's property, under pretence*of taxation,
white ninety-nine one-hundredths, more or less, of all the other property ofthe
country goes free of taxation ; laws, the object of which is, not only to raake
one man pay the taxes of others, but also to make tbe mass of the people pay
to a few domestic manufacturers, ten, twenty, thirty, or fifty per cent more for
their commodities, than they would be worth in free and open market.
It is as much the duty of a man to defend his property against such laws, as
to defend it against pirates and highwaymen. And the execution of such laws
would certainly be resisted, if it were understood that jurors had a right, in try
ing men for such resistance, to judge of the justice of the laws.
The laws against smuggling also, which confiscate a man's entire cargo, as a
punishment for evading a tax gatherer, who, but for the evasion, would have
seized a half or a quarter of it, would be nullified by the trial by jury, if it were
understood -that jurors had a right to judge of the justice of the laws.
The laws against smuggling are unconstitutional, as well as unjust. The
constitution gives not the slightest authority for laws, that punish men for con
cealing their property frora the tax gatherer. Men have a natural right to con
ceal their property ; for they raay fear other robbers than the tax gatherer.
The governraent must find property before they can tax it ; and when they
have found it, they are authorized only to tax it. They have no authority to
confiscate it, as a punishment to the proprietor for not having voluntarily ex
posed it for taxation.
The constitution declares simply that " the congress shall have power to lay
and collect taxes, duties, imposts, and excises," &c. Here is no authority for
confiscating property, which the owner had refused to expose to, or had at
tempted to conceal frora, the tax gatherer.
The constitution gives no more power to confiscate imported goods, for the
reason mentioned, than to confiscate domestic property. Suppose a direct tax
were laid, who imagines that congress would have power to confiscate all prop
erty, which the owners should refuse to expose to, or should attempt to conceal
from, the assessors ? Yet they would have the same right in that case, that
they have in the case of imported goods ; for the constitution makes no dis
tinction, in this particular, between imported and domestic goods.

70
The state governments havepower to lay taxes also ; but who supposes they
have power to confiscate property, or punish the owner by imprisonment, be
cause he lefuses to disclose hovv much money he has in his pocket, or attempts
to conceal any other property from the assessors I Yet the states have as much
power to do so, as have congress.
The true trial by jury would also abolish the government monopoly in the
carriage of letters and papers. If mankind have any natural rights, the right
of transmitting intelligence to each other, in any way that is intrinsically inno
cent, is one of them. And juries, if they knew their duties, would sustain that
right, by refusing ever to convict a man for exercising it.
The laws against this right is another of the many laws, for which the con
stitution gives no authority. The constitution says, simply that " Congress shall
have power to establish post-offices and post roads." It gives them no power
to forbid others to establish post-oflnces and post roads in competition with
those of Congress. Suppose the constitution had said that Congress shall have
power to establish stage coaches, steam-boats, and rail-roads, for the transpor
tation of passengers and merchandize ; does any one imagine that that would
have given them any authority to prohibit others from establishing stage
coaches, steam-boats, and rail-roads in competition with those of Congress?
Yet that case would have been a parallel one to the post-office power.
The trial by jury would also open all vacant wild lands to the settler, free of
charge by, or interference from, the government. The Creator gave lands, not
to governments, but to men. And men have the same natural right to take
possession of unoccupied wild lands, without permit from the government, that
they have to dip water from the stream, to breathe the air, or enjoy the sun
shine. And juries, if they knew their duties, would protect men in the enjoy
ment of this right, by acquitting thera, if indicted as trespassers, or for resisting
the government in its attempts to dispossess them of their lands.
What is true of lands, is true also of all mines, salt springs, &c., which men
find in the earth. A man has the sarae right to dig gold out of the earth, with
out asking perraission of the governraent, if he can find a spot unoccupied by
any other raan, that he has to dig roots.
In the state governraents, the trial by jury would abolish all restrictions upon
contracts, that are intrinsically lawful, between man and man. It would, for
example, abolish the laws which prohibit free banking, and limit the rates of
interest ; laws, which make currency scarce, and make credit and capital diffi
cult to be obtained. Also the laws, which forbid the sale of certain cQmraodi-
ties, unless inspected by officers of the government ; which forbid raen to act
as pilots, auctioneers, or innholders, unless specially licensed ; and all other
laws, which require that men obtain a special license from the government for
doing any act or business that is intrinsically lawful.
In fact the trial by jury would abolish the whole catalogue of laws against
acts not criminal in themselves, by which monopolies are sustained, and men
are deprived of their natural rights ; laws founded on the principle that the
destruction of private rights is promotive ofthe public good.

71
The trial by jury would compel the free administration of justice. A man has
a natural right to enforce his own rights, and redress his own wrongs. If one
raan owe another a debt, aiil refuse to pay it, the creditor has a natural right
to seize sufficient property of the debtor, wherever he can find it, to satisfy the
debt. If one man commit a trespass upon the person, property, or character
of another, the injured party has a natural right either to chastise the aggressor,
or to take corapensation for the injury out of his properly. But as the trovern-
ment is an irapartial parly, as between these individuals, it is more likely to do
exact justice between them, than the injured individual himself would do. The
government also, having more power at its comraand, is likely to right a raan's
wrongs more peacefully than the injured party himself could do it. If therefore,
the government will do the w ork of enfoi eing a man's rights, or of redressing his
•wrongs, free of expense to him, he is under a moral obligation to leave the work
in the hands of the government, — but not otherwise. When the government
forbids him to enforce his own rights, or redress hi.« own wrongs, and deprives
him of all means of obtaining justice, except on the condition of his employing
the government to obtain it for him, and of paying the government for doing it,
the government becomes itself an accomplice of the oppressor. If the govern
ment will forbid a man to protect his own rights, it is bound to do it for him,
free of expense to him. And so long as governraent refuses to do this, juries, if
they knew their duties, would protect a man in defending his own rights.
Probably one half of the community are virtually deprived of ail protection
for their rights, except what the criminal law affords them. Courts of justice,
for all civil suits, are as eflectually shut against them, as though it were done
by bolts and bars. Being forbidden tn maintain their own rights by force, — as,
for instance, to compel the payment of debts, — and being unable to pay the
expenses of civil suits, they have no alternative but submissiim to raany acts of
injustice, against which the government is bound either to protect them,/ree of
expense, or allow them to protect theraselves.
The free administration of justice is one of the principles of Magna Charta.
Its language is, " We will sell to no man, we will deny no raan, nor defer right
or justice." Whit is it but selling right and justice, to compel a man to pay the
cost of it ? or any part of the necessary cost of it ? There would be the same
reason, in compelling a party to pay the judge and the jury for their services,
that there is in compelling him to pay the witnesses, or any other necessary
charges. The above principle of Magna Charta is incorporated into many of our state
constitutions ; but it is a dead letter in all of them. But if the trial by jury were
rightly understood, the administiation of justice would have to be made free, or
juries would protect mSn in defending their rights by force.
This compelling parties to pay the expenses of civil suits, is one ofthe many
cases, in which government is false to the fundamental principles, on which it
is bajed. What is the object of government but to protect men's rights J On
what principle does a man pay his taxes to the government, except on that of
contributing his proportion towards the necessary cost of protecting the rights of

72
all ? Yet when his own rights are actually invaded, this govemment, which he
contributes to support, becomes bis enemy, and will neither protect his rights,
(except at his own cost), nor suffer him to do it himself.
The free administration of justice would p'lomote simplicity and stability in
the laws. The mania of legislation would be in a great measure restrained, if
the government were compelled to pay the expenses of all the suiis that grow
out of it.

YALE