law givers of antiquity; we help to perpetuate the fame of Solon and Lycurgus; but I doubt whether one single law of any law giver, ancient or modern, has produced effects of more distinct, marked and lasting character, than the Ordinance of '87. That instrument was drawn by Nathan Dane, then and now a citizen of Massachusetts. It was adopted as I think I have understood, without the slightest alteration; and certainly it has happened to few men to be the author of a political measure of more large or enduring consequences. It fixed forever, the character of the population in the vast regions northwest of the Ohio, by excluding from them involuntary servitude. It imposed on the soil itself, while it was yet a wilderness an incapacity to bear up any other than free men. It hid the interdict against personal servitude, in the original compact, not only deeper than all local law, but deeper also than all local constitutions. Under the circumstances then existing I look upon this original and seasonable provision as a real good attained. We see its consequences at this moment, and we shall never cease to see them, perhaps, while the Ohio shall flow."
I now refer the court to the case of Spooner vs. McConnell, in the 1st McLean's Reports, page 337.
(Mr. Paine here read at considerable length from the opinion of Judge McLean, holding that the articles of compact in the ordinance are still in force, except where they have been altered by common consent; that the adoption of a State constitution, with provisions repugnant to those of the ordinance, and entering the Union as a State, wo'd constitute the common consent necessary to the alteration; and intimating that such provisions as were subsequently guaranteed in the Federal constitution, might be considered as practically superseded.)
There is also a very able opinion of Chief Justice Stowe and Judge Larabee, of our old supreme court, delivered by the latter, in the case of Newcomb vs. Smith, reported in Chandler's Reports, sustaining the validity and binding force of the ordinance. These opinions are based upon the fact that the people of the Territory were not parties to the constitution, and therefore gave no consent in that to the alteration of the articles of compact.
But it is said in these opinions, that the adoption of a State constitution, with provisions repugnant to the ordinance, constitutes the common consent necessary to its alteration. This appears to be plain. The State constitution, after its adopt on, and the entry of the State into the Union, supersedes the ordinance,—but how far? It seems to me, only so far as it stands in its place. And it stands in its place only so far as the ordinance operated as a restriction on the local government. The State constitution is a restriction on the local, and not on the general government. I hold, therefore, that there is nothing in the adoption of a State constitution, that gives any consent to the removal of the restriction imposed by the ordinance on the power of congress. It is admitted by all who hold that the ordinance has ever been in force at all, since the adoption of the Federal constitution, that it limited the powers of congress, while the people were under the territorial government. Suppose, then, the people adopt a State constitution, re-enacting the provisions of the ordinance. Is there anything in this, that can possibly be construed into a consent that the general government shall be released from its restrictions? It seems to me not.
I hold, therefore, that the right of trial by jury was secured to the people of this State by the ordinance of '87, and that they have never consented that it should be taken away. I have said thus much upon that instrument, because it is sometimes claimed that the language of the constitution, in relation to trial by jury, applies either to a civil or criminal case, and that a fugitive case is neither the one nor the other. But the language of the ordinance is broad and general, and applies to any proceeding by which a person may be "deprived of liberty."
Now, Sir. I am aware, though I was not till a short time since, that the supreme court of the United States has held that the ordinance was superseded entirely by the federal constitution, and that it has never been in force since the adoption of the latter instrument. This was held in the case of Strader et al vs. Graham, 10th Howard, 82. It was a suit for helping away slaves, that went up from the Court of Appeals in Kentucky. The counsel cited a large number of cases where even the courts of slave States held the ordinance to be in force, and that if an owner allowed his slave to go into a State formed out of the Northwest Territory, he becomes free by virtue of the ordinance. Judge McLean held that the question of its validity did not arise before the supreme court, and claimed that all said by the court about that point, was extra-judicial. Judge Catron also said that the State courts "for thirty years" had held some parts of the ordinance to be binding, and he did not wish to disturb those decisions, when their "opinion might be disregarded by the State courts, as obiter and a dictum uncalled for!" But the court, notwithstanding this question was not necessary in the case, decided that the ordinance was superseded by the constitution, and that the people of the Territory were parties to the latter instrument.
I think this decision is not generally known by the people of the Northwest. For we still see frequent allusions to the beneficial results of the ordinance of '87. But, sir, if this decision is true, those who make these allusions are deceived. Daniel Webster was laboring under a great delusion. That instrument which he thought produced such "lasting" consequences, that we "should never cease to see them while the Ohio should flow," lasted less than two years. It had ceased to have any effect more than forty years before Mr. Webster pronounced his speech in its praise.
Sir, I do not regard this decision as an authority. I believe with Judge McLean that it was extra-judicial, and with Judge Catron that it was "a dictum uncalled for."—The only effect it should have, in my judgment, is to convince the people of the Northwest Territory, that their rights, though of the most important character, though guaranteed by the most solemn compacts, are not safe in the supreme court of the United States, whenever they come in conflict with the interests of slavery. Yes, that court will even go farther than is necessary, to construe those rights away!
But, leaving the ordinance, let us come to the constitution. And I contend that the right of trial by jury is guaranteed here with equal clearness. It is guarded with even the most anxious solicitude. In the 7th amendment it is declared that—"in suits at common law, where the value in controversy exceeds twenty dollars, the right of trial by jury shall be preserved." Admitting, then, that the claim of the master is a "case at law, arising under the constitution," as contended by the supreme court, then the right of trial by jury is expressly secured by this clause. In the 6th amendment, the jury trial is secured in criminal cases. But the 5th amendment covers the whole ground. A part of it is as follows.
"Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without dur process of law; nor shall private property be taken for public use without just compensation."
It is here provided that no person "shal be deprived of life, liberty or property without due process of law."—The words, "in a criminal case,"—in the clause preceding this, do not extend to this clause; but it stands by itself, without being necessarily affected by those words, any more than the one that follows it. The words are broad and general, and fully cover the proceedings of a fugitive slave case. And I have already referred the court to the construction of the words "due process of law," which are held to include all the essential rights secured by the common law, among which the trial by jury is one.
The words of this amendment seem evidently designed to be general, and to cover all proceedings by which the people may be deprived of liberty. Because, after this the 6th amendment provides expressly for criminal cases, and the 7th for civil cases. And the words of this 5th amendment seem fully to justify the broad statement of Chancellor Kent, already quoted, that—"It may be received as a self-evident proposition universally understood and acknowledged throughout this country, that no person can be taken or imprisoned, or disseized of his freehold, or liberties or estate, or exiled or condemned, or deprived of life, liberty or property, unless by the law of the land, or the judgment of his peers!" That is to say, unless he has a trial by jury.
If it be said that this is a proceeding sui generis, and that these provisions of the constitution do not apply, I answer that it was for the very purpose of protecting us against just such proceedings sui generis, by which our liberties could be destroyed without "due process of law," that these safeguards were inserted in the constitution.
And now, in view of all these safeguards, by which our fathers evidently supposed they had fenced round the liberties of the people with adamantine walls, that wo'd bid defiance to the fiercest storms of tyranny, let us look at the practical operation of this Fugitive Act. A person is found in our State in the possession of liberty. He enjoys actual freedom, and our law presumes him to be free. All the people here stand on the same footing in this respect. A man comes from another State, and claims