But he made no proposition. Mark the modesty of the suggestion. Here was no offer of compromise,—not even a complaint, much less a suggestion of corner-stone. The next article under discussion provided for the surrender of fugitives from justice. Mr. Butler and Mr. Charles Pinckney, both from South Carolina, now moved openly, but without any offer of compromise, to require “fugitive slaves and servants to be delivered up like criminals.” But the very boldness of the proposition drew attention and aroused opposition. Mr. Wilson, of Pennsylvania, afterwards the eminent judge and lecturer on Law, promptly remarked: “This would oblige the executive of the State to do it, at the public expense.” Mr. Sherman, of Connecticut, followed in apt words, saying that he “saw no more propriety in the public seizing and surrendering a slave or servant than a horse.” Under this proper pressure the offensive proposition was withdrawn. The article for the surrender of criminals was then adopted. On the next day, August 29th, Mr. Butler showed that the lovers of Liberty had not spoken in vain. Abandoning the idea of any proposition openly requiring the surrender of fugitive slaves, he moved an equivocal clause, substantially like that now found in the Constitution, which, without debate or opposition of any kind, was unanimously adopted,—or, according to the report of Mr. Madison, nem. con.[336] What could not be done directly was attempted indirectly; and the partisans of Slavery contented themselves, according to the teachings of old Polonius, with language which only “by indirections finds directions out.” But no “indirection” can find Slavery out. The language which sanctions such a wrong must be “direct.” Therefore, at the moment of seeming triumph, the partisans of Slavery failed.

Such is the indubitable origin of a clause latterly declared a compromise of the Constitution and a corner-stone of the Republic. That a clause for the hunting of slaves was recognized at the time as compromise or corner-stone is an absurdity disowned alike by history and by reason. That the clause was adopted, nem. con., with the idea, that, according to any received rules of interpretation, it could authorize the hunting of slaves, it is difficult to believe. The very statement that it was adopted nem. con. shows that it must have been regarded, according to received rules of interpretation, as having no “positive” character; for there were eminent members of the Convention whose declared opinions must have prevented them from consenting to any such proposition, if it were supposed for a moment to turn the Republic which they were then organizing into a mighty Slave-Hunter. There sat Gouverneur Morris, who only a short time before exclaimed in the Convention: “He never would concur in upholding domestic Slavery. It was a nefarious institution. It was the curse of Heaven on the States where it prevailed.”[337] There sat Oliver Ellsworth, afterwards Chief Justice, who said, in words which strike at all support of Slavery by the National Government: “The morality or wisdom of Slavery are considerations belonging to the States themselves.”[338] There sat Elbridge Gerry, afterwards Vice-President, who openly declared that “we had nothing to do with the conduct of the States as to slaves, but ought to be careful not to give any sanction to it.”[339] There sat Roger Sherman, who avowed that he was “opposed to a tax on slaves imported, as making the matter worse, because it implied they were property.”[340] And, greatest of all, there sat Benjamin Franklin, who, by character and conviction, in every fibre of his moral and intellectual being, was pledged against any sanction of Slavery. Who can suppose that these wise and illustrious patriarchs of Liberty all consented, nem. con., not only to sanction Slavery and to recognize property in man, but to put a kennel of bloodhounds into the Constitution, ready to hunt the flying bondman? They did no such thing; or, if it is insisted, contrary to received rules of interpretation, that such must be the signification of their language, clearly they did not understand it so. Doubtless there were members of the Convention who, in passion for Slavery, cheered themselves with the delusion that they had adequately described, in “positive” terms, the pretension they hoped to embody in the Constitution; but the legal meaning of this provision must be determined, not by the passion of such members, but by the actual language employed, according to received rules of interpretation, from which there is no appeal. Other rules may be set aside as inapplicable; but the rule, which, in presence of any doubtful phrase, any indirect language, or any word capable of a double sense, requires that the interpretation shall be in favor of Liberty, is the most commanding of all.

Thus, when this clause took its place in the Constitution, nem. con., it was clearly a cipher. It meant nothing, or at least nothing “odious.” This conclusion becomes still more apparent in the light of two special incidents, which cannot be forgotten in determining the validity of any claim for Slavery under equivocal words. The first is the saying of Mr. Madison, which he has recorded in the report of the Convention, that it was “wrong to admit in the Constitution the idea that there could be property in men.”[341] Admirable words, constituting a binding rule of interpretation. And yet, in the face of this declaration, it is insisted that the “idea that there could be property in men” is embodied in the double-faced words of the fugitive clause. But as the words are susceptible of two meanings, clearly they should be interpreted so as to exclude what is “wrong.” The other incident furnishes the same lesson in a manner more pointed still. It appears that on the 13th of September, 1787, a fortnight after the fugitive clause was adopted in its earliest form, and while the Convention was considering the report of its committee on style and arrangement, “On motion of Mr. Randolph, the word ‘servitude’ was struck out and ‘service’ unanimously inserted, the former being thought to express the condition of slaves, and the latter the obligations of free persons.”[342] Thus the word “service” ceases even to be equivocal, for it was unanimously adopted as expressing “the obligations of free persons.” And such it would have continued to express always, if Slavery had not unhappily triumphed over the National Government in all departments, executive, legislative, and judicial.

It is not doubted that at home in the Slave States the fugitive clause was interpreted as embracing slaves, and that this asserted license was at times mentioned as a reason for the adoption of the Constitution. Even Mr. Madison, who had declared in the National Convention that it was “wrong to admit in the Constitution the idea that there could be property in men,” argued afterwards, in the Virginia Convention, that “this clause was expressly inserted to enable owners of slaves to reclaim them,”[343]—all of which was doubtless true, but the question still occurs as to the constitutional efficacy of the clause. Mr. Iredell, who was not a member of the National Convention, undertook, in the North Carolina Convention, to explain what it had done. Announcing that the clause was intended to include slaves, he added: “The Northern delegates, owing to their particular scruples on the subject of Slavery, did not choose the word slave to be mentioned,”[344]—so that, on the very statement of this expositor, the question naturally arose whether slaves were really included. In the South Carolina Convention, General Pinckney, who in the National Convention first started the idea of “some provision in favor of property in slaves,” boasted that this had been obtained; but he added, in suggestive words, “We have made the best terms for the security of this species of property it was in our power to make. We would have made better, if we could.”[345] True enough. The Slave-Masters got all they could: if possible, they would have got more. But the question still recurs, whether in this equivocal provision they got anything. In the National Convention they adopted a clause which was only another illustration of “Mr. Facing-both-ways.” At home, in their local conventions, they courageously insisted that it faced only one way. Without dwelling on old sayings about “a villain outwitting himself,” and wit failing when “upon an ill employ,” clearly the wit of the Slave-Masters was “upon an ill employ” when it sought to foist Slavery into the text of the Constitution; and it is easy to see that all who engaged in the work were like “a villain outwitting himself.” Whatever they may have thought or boasted, the thing was not done.

From the origin of the fugitive clause, and the circumstances attending its adoption, it is apparent that it has been the occasion of infinite exaggeration and misrepresentation. Like a Pagan idol, it has been worshipped and covered with gifts; but the prevailing superstition which sustained the imposture has at last disappeared, and we see nothing but a vulgar image of painted wood.

LEGISLATION FOR RENDITION OF FUGITIVE SLAVES.

From the clause in the Constitution, the Committee pass to a consideration of the legislation founded upon it. Of course, if the clause is misunderstood, no legislation can derive any validity from it. Nothing can come out of nothing; and since there is nothing in the Constitution positively requiring rendition of fugitive slaves by the National Government, there can be no authority for any legislation by Congress on the subject. Therefore the argument against the existing statutes is complete. But, since it is proposed to reverse an early policy of the Government, the Committee are unwilling to stop here. These statutes must be considered in their history and character.

As early as 1793, while Congress was sitting in Philadelphia, provisions for the surrender of fugitive slaves were fastened upon a bill for the surrender of fugitives from justice, and the whole was adopted, apparently with little consideration. Thus, accidentally, Congress assumed the odious power to organize slave-hunting. But the Act was scarcely passed, before the conscience of people, not only at the North, but even in Maryland, began to be aroused. Granville Sharp, who in England so bravely maintained the national cause as well as the cause of the slave, addressed a letter to the “Maryland Society for Promoting the Abolition of Slavery and the Relief of Free Negroes and others unlawfully held in Bondage,” where he set forth elaborately those binding rules of interpretation, which, according to English law, require a court to incline always in favor of Liberty. This letter purports to have been published, as a pamphlet, by order of the Society, and to have been printed at “Baltimore, in Calvert Street, near the Court-House, by D. Graham, L. Yundt, and W. Patton,” in 1793. In a brief preface, the Maryland Society thus reveals the trials attending the new Fugitive Slave Act:—

Such is a contemporary record of sensibilities in a Slave State; and let it be mentioned to the honor of Maryland. But it is reasonable to suppose that sensibilities in States further north were touched still more. Mr. Quincy, whose living memory embraces this early period, reports, that, when an enforcement of this Act was attempted in Boston, the crowd thronging the room of the magistrate quietly and spontaneously opened a lane for the fugitive, who was thus enabled to save himself from Slavery, and also save the country from the dishonor of such a sacrifice. Almost at the same time, in patriotic Vermont, a judge of the Supreme Court of the State, on application for the surrender of an alleged slave, accompanied by documentary evidence, refused to comply, unless the master could show a bill of sale from the Almighty. Such was the popular feeling which this earlier legislation encountered.

There is authentic evidence that this popular feeling was recognized by President Washington as a proper guide, where he was personally interested. A slave of Mrs. Washington had escaped to New Hampshire. The President, in an autograph letter, which has been produced in the Senate,[346] addressed to Mr. Whipple, the collector at Portsmouth, and dated at Philadelphia, November 28, 1796, after expressing the desire of “her mistress” for the return of the slave, lays down the following rule of conduct:—

The fugitive never was returned, but survived to a good old age, down to a recent period,—a living witness to that public opinion which made even the mildest of Fugitive Slave Acts a dead letter.

At last, in 1850, after the subject of Slavery had been agitated in Congress without interruption for nearly twenty years, a series of propositions was adopted, and solemnly declared to be compromises, by which all the questions concerning Slavery were permanently settled, so as never again to vex the country,—as if any question could be permanently settled except on principles of justice. But the “gruel” was made, and among its ingredients “for a charm of powerful trouble” was a new Fugitive Slave Act, first reported from the Committee on the Judiciary by Mr. Butler, of South Carolina, but afterwards amended by a substitute from Mr. Mason, of Virginia, so as to become substantially his measure. It is needless to mention its details. Suffice it to say, that in these, as in general conception, it was harsh, cruel, and vindictive. Few statutes in history have been so utterly inhuman, not excepting even those British statutes for the oppression of the Irish Catholics, which are pictured by Edmund Burke in words strictly applicable to the monstrosity of our country:—

Such, unquestionably, was the Fugitive Slave Act of 1850, which is still allowed to remain on the statute-book, a blot upon our country and age.

Where a measure is so plainly repugnant to reason and authority, and on its face has so little foundation in the Constitution, any elaborate argument seems superfluous, especially at this moment, when Slavery everywhere is yielding to Freedom. The general conscience condemns the inhuman statute, and this is enough.

But it is important to show how the country has been deceived. Therefore, briefly, the Committee call attention to the constitutional objections.

UNCONSTITUTIONAL USURPATION OF POWER BY CONGRESS.

Forgetting, then, for the moment, the Preamble of the Constitution, which speaks always for Justice and Liberty,—forgetting, also, the venerable maxim of the law, that “we must incline always in favor of Freedom,” and likewise that other maxim, that “he is impious and cruel who does not favor Freedom,”—refusing, according to the requirement of law, “to catch at anything in favor of Liberty,” and, in spite of all received rules of interpretation, assuming that the words of the fugitive clause adequately define fugitive slaves,—the question then arises, if this clause, thus defiantly interpreted, confers any power upon Congress.

Clearly not.

Search the Constitution, and you will find no grant, general or special, conferring upon Congress power to legislate with regard to fugitives from service or labor. In the general catalogue of powers this is not mentioned; nor does it appear in any special grant. There is nothing in the clause itself, there is nothing in any other clause, applicable to this pretended power. The whole subject is left to stand on a clause which, whatever its meaning otherwise, plainly on its face is only a compact, and not a grant of power. And in this respect it differs on its face from other provisions of the Constitution. For instance, Congress is expressly empowered “to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies, throughout the United States.” Without this grant, these two important subjects would have fallen within the control of the States, the nation having no power to establish a uniform rule thereupon. Now, instead of the existing compact on fugitives from service or labor, it would have been easy, had any such desire prevailed, to add this case to the provision on naturalization and bankruptcy, and empowered Congress to establish a uniform rule for the surrender of fugitives from service or labor throughout the United States. Then would Congress have had unquestionable jurisdiction. But nobody in the Convention, not one of the hardiest partisans of Slavery, presumed to make this proposition. Had it been made, it is easy to see that it must have been most unceremoniously dismissed.

The genius of the Common Law, to which our ancestors were devoted, cried out against any such concession. If we refer to its great master, Lord Coke, from whose teachings in that day there was no appeal, we find its living voice. In the Third Institute he thus expresses himself: “It is holden, and so it hath been resolved, that divided kingdoms, under several kings in league one with another, are sanctuaries for servants or subjects flying for safety from one kingdom to another, and, upon demand made by them, are not, by the laws and liberties of kingdoms, to be delivered.”[348] Unquestionably, if such “sanctuaries” may be overturned, it can be only in a manner consistent with “laws and liberties” of the States where the fugitive is found, and not through the exercise of a domineering prerogative by Congress.

Whatever the real meaning of the clause in other respects, plainly it is a compact, with a prohibition on the States, conferring no power on the nation. In natural signification it is a compact. According to examples of other countries and principles of jurisprudence, it is a compact. All arrangements for surrender of fugitives are customarily compacts. Except under express obligations of treaty, no nation is bound to surrender fugitives. Especially has this been the case with fugitives for Freedom. Bodin asserted the freedom of all foreign slaves just so soon as they crossed into France.[349] In mediæval Europe cities set up the same immunity, even against claimants under the same national government. In 1531, while the Netherlands and Spain were united under Charles the Fifth, the supreme council of Mechlin rejected an application from Spain for the surrender of a fugitive slave. By express compact alone could this be secured. But the provision of the Constitution was borrowed from the Ordinance of the Northwestern Territory, which is expressly declared to be a “compact,”[350] and this Ordinance, finally drawn by Nathan Dane, of Massachusetts, was again borrowed, in some of its distinctive features, from the early institutions of Massachusetts, among which, as far back as 1643, was a compact of like nature with other New England States. Thus this provision is a compact in language, a compact in nature, and a compact in its whole history; as we have already seen, it is a compact according to the intentions of our fathers and the genius of our institutions.

There are two instances in history of compacts which illustrate the present words. The first is found in a treaty of peace between Leo the Sixth, Greek Emperor of Constantinople, and Oleg, Regent of Russia, in the year of the Christian era 906, as follows:—

This compact, made in the unequivocal language of a barbarous age, has long since ceased to exist; and now, in our own day, Russia disdains to own a slave.

The other instance is the compact between the New England colonies in 1643, being one of the “Articles of Confederation between the Plantations under the Government of the Massachusetts, the Plantations under the Government of New Plymouth, the Plantations under the Government of Connecticut and the Government of New Haven, with the Plantations in combination therewith.” Here it is:—

Here, by words of agreement, less frank and unequivocal than those of the earlier time, fugitives are restored. But this compact, like its Russian prototype, long since ceased to exist.

Unquestionably the fugitive clause of the Constitution, whether applicable to fugitive slaves or not, was never intended to confer power upon Congress, but was simply a compact, to receive such interpretation as the States where it was enforced might choose to adopt.

AUTHORITIES AGAINST THE POWER OF CONGRESS.

The Committee do not leave this conclusion to rest merely on unanswerable reason. Authorities add to the testimony.

Here is the judgment of Chancellor Walworth, of New York, pronounced in 1835, before this subject had become the occasion of political strife. The testimony of the learned Chancellor is the more important, when it is considered that he has always acted politically with the Democracy, which has been the support of Slavery.

Here, also, is the judgment of Chief Justice Hornblower, of New Jersey, pronounced in 1836. Having shown that the clause in question confers no power on Congress, he proceeds as follows.

Afterwards, in a published letter of 1852, the Chief Justice says:—

Other judicial opinions might be adduced; but, as they have been pronounced since controversy on this question, they would be less regarded.

There are opinions, pronounced in the Senate, which, from the characters of their authors, are entitled to peculiar consideration.

It will be remembered that Mr. Webster gave his support to the Fugitive Slave Act of 1850; but, whatever may have been his vote, so far as his personal authority could go, he condemned the Act as unconstitutional. Here is his opinion, in the famous speech of the 7th March, 1850.

“I have always entertained that opinion, and I entertain it now.” Such are the emphatic words by which Mr. Webster declares his judgment of the unconstitutionality of this Act.

He was not alone. Mr. Mason, the actual author of the Act of Congress, exposed its unconstitutionality in the very speech by which he introduced it.

And Mr. Butler, of South Carolina, at a later day, said:—

Such are some of the authorities, judicial and political, by which Congressional power over this subject is denied. And yet, in the face of all authority, and in defiance of reason, Congress assumed this power. It was done at the demand of Slavery, and for the protection of Slavery. Of course, such an assumption of undelegated power was a usurpation at the time, and is a usurpation still,—doubly hateful, when it is considered that it is a usurpation in the name of Slavery. It is hard to think that Congress was driven to unconstitutional assumption in such a cause, and that, contrary to sovereign rules of interpretation, it leaned to Slavery rather than to Freedom. But the time has come at last when it may recover the attitude belonging to it under the Constitution.

In advising the repeal of the Fugitive Slave Act, it is enough to show that it is founded on usurpation by Congress of power not granted by the Constitution. But, even admitting the power, a slight examination will show that it has been executed in defiance of the Constitution.

The constitutional objections to the Fugitive Slave Act are abundant. It is not too much to say, that in every section and at every point it is repugnant to admitted principles of Constitutional Law.

UNCONSTITUTIONAL DENIAL OF TRIAL BY JURY.

Foremost among these objections it is proper to put the denial of trial by jury to the fugitive whose liberty is in question. It is well known that Judge Story, who pronounced the opinion of the Supreme Court affirming the constitutionality of the early Fugitive Slave Act, declared that the necessity of a trial by jury had not been argued before the Court, and that in his opinion this was still “an open question.”[359] It has never been argued since; but it is difficult to say that it is still “an open question.” The battles of Freedom are never lost, and the longer this right is denied the more its justice has become apparent, until at last it shines resplendent beyond all contradiction. Even if there were doubt of the obligation of Congress, there can be no doubt of the power. Nobody denies that Congress, if it legislates on this matter, may allow trial by jury. But here again, if it may, so overwhelming is the claim of justice, it must.

The text of the Constitution leaves the case beyond question. And here, on the threshold, two necessary incidents of the delivery are observed: first, it must be made in the State where the fugitive is found; and, secondly, it restores to the claimant complete control over the person, so that the victim may be conveyed to any part of the country where it is possible to hold a slave, or he may be sold on the way. The proceedings, therefore, cannot be regarded, in any just sense, as preliminary or auxiliary to some future formal trial, as in the case of a fugitive from justice, but as complete in themselves, final and conclusive.

It is because of the contempt with which, under the teachings of Slavery, to the shame of our country, men have thus far regarded the rights of colored persons, that courts have been willing for a moment to recognize the constitutional right to hurl a human being into bondage without trial by jury. Had the victims been white, it is easy to see that the rule would have been different. But it is obvious, that, under the Constitution, the rule must be the same for all, whether black or white.

On the one side is a question of property; on the other side is the vital question of Human Freedom in its most transcendent form,—not merely Freedom for a day or a year, but for life, and the freedom of generations that shall succeed so long as Slavery endures. Whether viewed as a question of property or a question of Human Freedom, the requirement of the Constitution is equally explicit, and it becomes more explicit as we examine its history. It is well known, that, at the close of the National Convention, Elbridge Gerry refused to sign the Constitution, because, among other things, it sanctioned the establishment of “a tribunal without juries,—a Star-Chamber as to civil cases.”[360] Many united in this opposition, and on the recommendation of the First Congress an additional safeguard was added in the following words: “In suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Words cannot be more positive.

Three conditions, according to this Amendment, are necessary. First, there must be “a suit.” But the Supreme Court, in the case of Cohens v. Virginia, have defined a suit to be “the prosecution, or pursuit, of some claim, demand, or request,”[361]—thus affirming that the “claim” for a fugitive is “a suit.” Secondly, there must be a suit “at Common Law.” But here again the Supreme Court, in the case of Parsons v. Bedford, while considering this very clause, has declared that “in a just sense the Amendment may well be construed to embrace all suits which are not of Equity and Admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights”;[362] and clearly, since the claim for a fugitive is not a suit in Equity or Admiralty, but a suit to settle what are culled “legal rights,” it must, of course, be “a suit at Common Law.” Thirdly, the value in controversy must “exceed twenty dollars.” But here again the Supreme Court, in the case of Lee v. Lee, on a question as to jurisdiction, founded on “the value in controversy,” has declared that the freedom of the petitioners, which was the matter in dispute, was “not susceptible of a pecuniary valuation,”[363]—showing, that, since Liberty is above price, the claim to a fugitive always necessarily presumes that “the value in controversy exceeds twenty dollars.”

Thus, by a series of separate decisions of the Supreme Court on the three points involved in the interpretation of this clause, it is clear beyond question that the claim to a fugitive is, first, “a suit,”—secondly, “at Common Law,”—thirdly, “where the value in controversy exceeds twenty dollars”: so that trial by jury is expressly secured.

Even if the Supreme Court had been silent on this question, the argument from the old books of the Common Law would be unanswerable. We are told that there is nothing new under the sun. Certainly, long before our Constitution, the claim for a fugitive slave was known to the Common Law. In early history, and down even to a late period, the slave in England was generally called villein, though in the original Latin judicial forms nativus, implying slavery by birth. Of course, then as now, he sometimes ventured to escape from his master; but the Common Law supplied the appropriate remedy. The claim was prosecuted by “a suit at Common Law,” to which, as to every suit at Common Law, the trial by jury was necessarily attached. Blackstone, in his Commentaries, in words which must have been known to all the lawyers of the Convention, said of villeins: “They could not leave their lord without his permission, but, if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chattels.”[364] But this word “action” of itself implies “a suit at Common Law,” with trial by jury.

The forms of proceeding in such cases are carefully preserved in those books which constitute the authoritative precedents of the Common Law. There are writs, counts, pleadings, and judgments, all ending in trial by jury. They will be found in Fitzherbert’s “Natura Brevium.”[365] The Year Books and Books of Entries are full of them. Clearly and indisputably, in England, where the Common Law has its origin, a claim for a fugitive slave was “a suit at Common Law,” recognized as such among its old and settled proceedings, as much as a writ of replevin for a horse or a writ of right for land. It follows, then, that the requirement of the Constitution, read in the illumination of the Common Law, naturally and necessarily embraces proceedings for the recovery of fugitive slaves, so far as any such are instituted or allowed under the Constitution.

And this irresistible conclusion had the support of a Senator from South Carolina in an earlier period of our history, before passion had obscured reason and conspiracy against the Union had blotted out all loyalty to truth. In reply to a proposition, in 1818, to refer the claim of the master to a judge without a jury, Mr. Smith, speaking solely in the interests of property, thus expressed himself:—

Thus, in those days, a partisan of Slavery, while asserting its divine origin, and vindicating the rendition of fugitive slaves, recognized the claim of the master as “a suit at Common Law,” to be tried by a jury; and this he insisted was prescribed by the Constitution. But if this Senator could claim trial by jury for the protection of his pretended property, with much greater reason might the fugitive claim trial by jury for the protection of his liberty. Surely, now, when Liberty is regaining her lost foothold, this protection will not be denied.

OBJECTIONS TO TRIAL BY JURY.

To this array of reason and authority there are but two attempts at reply, so far as the Committee is informed.

(1.) The first asserts that the rendition of the slave under the Act of Congress is a “preliminary” proceeding, in the nature of extradition, which does not establish any right between the parties, but simply hands the slave over to the local jurisdiction from which he escaped, and therefore trial by jury is unnecessary. But this pretension is founded on a plain misapprehension. It forgets, in the first place, that by ancient authority a “claim” for a fugitive slave is unquestionably a “suit at Common Law,” to be determined by a jury before the judgment of rendition. And it forgets, in the second place, that the proceedings are in no respect “preliminary”; that they do not contemplate any other trial between the parties, but that they fix absolutely the relations of the parties, making one of them master and the other slave; that the certificate of rendition is absolute and unimpeachable by any human tribunal, so that the claimant, from the moment of its issue, may assert unqualified ownership over the fugitive; that, under this certificate, he may proceed at once to demand service and labor, and enforce his demand by the lash; and that, instead of returning the victim to that local jurisdiction from which he is alleged to have escaped, the claimant may hurry him, chained and manacled, to some distant plantation, where the only judge will be an overseer, and the only jury the creatures who aid in enforcing a terrible power. And the argument forgets, also, that this cruel judgment may be inflicted upon a freeman, who, perhaps, has never left his Northern home, but whose fate will be fixed beyond appeal by the mere certificate of a commissioner. Surely this simple statement is enough.

The very word “preliminary” suggests the inquiry, To what? Preliminary is not an adjective that supports itself. It requires an adjunct, or an abutment on which to rest. It is the beginning or introduction to some further proceeding. It is something incomplete or unfinished. If it be judicial, it contemplates necessarily some further judicial proceeding. The judge who pronounces a preliminary judgment must necessarily have in mind the judgment to follow, and must recognize his relation to it. But if there is no judgment to follow, if there is no contemplation of any further judicial proceeding, if the actual proceeding is complete and finished, if it is not the beginning or introduction to any further proceeding, if there is nothing on which the adjective “preliminary” can rest, it is absurd to call the proceeding by this name. Such proceeding is essentially final, and this is the unquestionable character of that under the Fugitive Slave Act. To call it “preliminary,” and on this ground set up apology for denial of trial by jury, is only another illustration of devices employed by Slavery to baffle the demands of Freedom.

But it is still said that there may be another trial in the State whither the slave is conveyed. On this assumption it has been well remarked, that, if, contrary to general principles of law attaching to the decision of a competent tribunal a conclusive force as to the same right between the same parties, there could be any trial in the Slave State, then it is another trial, and in no respect a continuation and completion of the proceedings before the commissioner. The only trial possible would be an original suit by the alleged slave against his actual master, whosoever he might be; for the claimant may have already sold him to another. But there can be no legal connection between the two proceedings. Each is original, and must be decided on its own merits. In the one case, the actual claimant, whosoever he may be, is plaintiff, and the slave is defendant; and in the other case the slave is plaintiff, and the actual master, whosoever he may be, is defendant. And the first proceeding is preliminary to the other only as an illegal imprisonment is preliminary to a suit for damages. The whole pretension is lost in its absurdity.

(2.) The second attempt at reply to the argument for trial by jury may be given in the words of the author of the Fugitive Slave Act himself. In the debate which occurred on its passage, Mr. Mason thus expressed himself:—