him as a slave. He is arrested by a warrant, taken before a U. S. Judge or Commissioner, and after an examination which is a mere mockery, not only of all the substance, but of all the forms of law, he is decided by such judge or commissioner to be a slave, and is delivered up. Keep the simple facts in view! He is a freeman when seized. He is a slave when he leaves the court room or commissioner's office;—made so by the decision of one man! There is no room here for the evasions of ingenuity. The destruction of the jury trial is complete. That of those cities that were buried forever beneath volcanic fires, was not more so. Where then are the safeguards of the constitution? Where are all the solid ramparts, by which we believed our liberties were protected? Are they all swept away by this act? Are they, indeed, so feeble as to vanish before the breath of the slave power, as magic castles disappear before the waving of the enchanter's wand? They are, if this act is to stand, for one or the other is to fall. And what answer is made to this? None at all! It stands unanswered and unanswerable!
When I first obtained the opinion of Chief Justice Shaw in the Sims case, I read in the syllabus at the beginning, that the fact that this act makes "no provision for a trial by jury in favor of the alleged fugitive, does not make it unconstitutional." I then perused the opinion with feelings of intense curiosity and anxiety, to see by what reasoning this propositions was to be sustained. I came to it at last, and will now read it. It is not long. It is, like the proceedings under this act, of a very "summary character." The Chief Justice says:
"Since the argument in court this morning, I am reminded by one of the counsel for the petitioner, that the law in question ought to be regarded as unconstitutional, because it makes no provision for a trial by jury. . We think that this could not have varied the result. The law of 1850 stands, in this respect, precisely on the same ground with that of 1793, and the same grounds of argument which tend to show the unconstitutional of the one, apply with equal force to the other: and the same answer must be made to them."
Here we have this great right disposed of in a paragraph. The massive bulwarks of the constitution, are overthrown by a single exhalation of judicial breath! And how disposed of—how overthrown? Why the Chief Justice tells us that the "same answer must be made" to this objection to the present act, that was made to it, when urged against the law of '93. Well, Sir, no answer was ever made to it when urged against that law. The question of a jury trial was not raised in the Prigg case. And Judge Story said afterwards, as we are informed by his son, that the supreme court had never decided that point, but it was still an open question before that court. The answer of Chief Justice Shaw, therefore, is about as satisfactory as was the answer of a defendant to a Bill in Chancery, which I heard read at a late public trial. It was a Creditor's Bill, and the defendant wished to evade a disclosure. He answered, therefore, somewhat in this wise: that to the first interrogatory his reply was, that he had no information, to the second, his answer was that he knew nothing of the matter; to the third his "answer was the same" as his answer to the first; to the fourth his answer wo'd be found embodied in his answer to the first and second, and so through all the interrogatories! There never was any answer to the objection against the law of '93, for want of a jury trial, and Chief Justice Shaw tells us the same answer is to be made now. Sir, I turned away from that opinion sick at heart, at the manner in which tho great rights of a nation could be lightly construed away and disregarded, by tribunals that were instituted and sworn to protect them!
I read to this Court yesterday, the able opinion of Chancellor Walworth in the case of Jack vs. Martin, in which he asserted the right of every person claimed as a fugitive to a trial by jury. Let me know call its attention to that part of the opinion of the New York supreme court in the same case, relating to this point. It will be remembered that it was delivered by Judge Nelson, and that it sustained the power of congress to legislate on this subject. This gives its admissions upon this point a double force. On page 324 of the 12th Wendell, the court says:
"It has been said that under the law of 1793, a free citizen might be seized and carried away into captivity, and hence the necessity of the law of the State, giving to him a trial by jury on the question of freedom. This argument is plausible and the justice of it difficult to deny:—but sound as it is, it tends only to prove the defectiveness of the law of congress, not the authority of the State."
Here then we have both these judges who denied, and those who maintained the power of Congress to legislate, admitting that the "law is defective," and that the objection for want of a trial by jury is a "sound" objection. If this is the "answer," to which Chief Justice refered, we are willing to take this, and to have the "same" one made to the present Act. But sir, it is sometimes said that the person claimed, may have a trial by jury in the State to which he is taken as a slave! I should think that this pretence would blister the tongue of the freeman who could utter it! Is that the protection which this State furnishes to its people? When they ask for bread, will she give them a stone?[s 1] When they are seized to be carried away as slaves, and demand a trial by jury to determine their right to liberty,—will she say, she is unable to give it, but they may get one from the slave State; or in other words, that they may get better protection as slaves, under the laws of a slave State, than we can furnish to our freemen? It is only with feelings of the utmost amazement that I can listen to this pretext:—that I can learn that there are men, who, in order to secure to the slave holder, the speedy possession of his slave, are willing that freemen should be dragged away into captivity, with no chance of regaining their liberties, except such as the laws of the slave States give their slaves. If that is the extent of our protection from the States, the sooner the people learn it the better, for they will then take the protection into their own hands.
But they tell us also that a fugitive from labor, is no more entitled to a trial by jury where he is seized, than is a fugitive from justice. The distinction between the two cases is so palpable, that this needs no answer, but I will answer it. A fugitive from justice is not "deprived of his liberty" when arrested in the State to which he has fled, in the sense in which those words are used in the Constitution. Those words mean not a mere taking into custody for the purpose of being tried, but some judicial determination upon the party's right. A man arrested by a sheriff for a crime against the State, is deprived of his liberty temporarily for the purpose of a trial. But this is not such a deprivation as is meant by the Constitution. Otherwise no man could be arrested for any offence without the aid of a jury. In arresting and delivering up a fugitive from justice therefore, there is no adjudication on the party's right, but it is a mere arrest for the purpose of taking him to be tried where the crime was committed, in obedience to a long settled principle of criminal law.— The prosecution is begun in another State, and the arrest here is no decision on the guilt or innocence, but a necessary preliminary step to such a decision elsewhere. But with the fugitive from labor it is entirely different. With him, the question whether he "owes service and labor" or not, is to be judicially determined in the State to which he has fled. The question of his right to liberty is to be passed upon judically in that State. And so this Fugitive Act treats it. It makes provision for a trial here, to determine that question, and requires the Judge or Commissioner to pass upon it, though its provisions on this subject are so lamentably partial, oppressive and unjust, as to have excited the abhorance of the civilized world. Yet even these, wicked as they are, show the distinction between these cases. The proceedings against a fugitive from labor are not preliminary steps to any proceeding in another State. They are begun here and end here. The party's right to liberty is judicially decided here, and if it is decided against him, he is made a slave by it. The fugitive from justice is delivered up to a sovereign State, which has no purposes to subserve against him, but to administer to him as it does to its own people, justice according to its laws. The fugitive from labor, on the other hand, is delivered up as a chattel, to the absolute control of his claimant, to be taken where he wills, subject to his selfish passions, and all his irresponsible power.
The distinction is so plain that no mind can fail to perceive it. The fugitive from justice has no trial by jury where he is seized, because he has no trial at all, and his right to liberty is not decided upon. The fugitive from labor is entitled to a trial by jury, because he must have a trial of some kind; his libery is passed upon, and the effect of the proceedings in the State where he is seized, is to reduce him from a state of liberty to one of slavery. And if making a man a slave is not "depriving him of liberty" then I am unable to know what is.
And now I have presented the three objections on which we rely as fully as I had intended. To me they seem conclusive. They seem to show, beyond all doubt, that the Act of congress under which the Relator is held, was not only an entire usurpation of power, but was an exercise of it in palpable violation of the constitution, and is therefore null and void. It may be said this position is contrary to precedent. There is great force in the
