A Letter to the Hon. Samuel A. Eliot, Representative in Congress From the City of Boston, In Reply to His Apology For Voting For the Fugitive Slave Bill

You tell us that the Convention of 1787 "agreed that the new Constitution should have nothing to do with slavery." I have not been so fortunate as to find the record of this agreement, but if such a compact was indeed made, then seldom, if ever, has a solemn covenant been more grossly and wickedly violated. Is it, Sir, in virtue of this agreement, that you voted to fine and imprison every conscientious, humane citizen who may refuse, at the command of a minion of a commissioner, to join in a slave hunt? Did this agreement confer on the holders of slaves an enlarged representation in Congress? Was it in pursuance of this agreement that the importation of slaves was guaranteed for twenty years? Did this agreement authorize the Federal government to enter into negotiations with Great Britain and Mexico for a mutual surrender of runaway slaves? Was it in pursuance of this same agreement, that our government negotiated with Russia and Spain to prevent emancipation in Cuba, – a traitorous conspiracy with despots against the rights of man? How, Sir, was this agreement illustrated, when Daniel Webster, as Secretary of State under John Tyler of glorious memory, made a demand on Great Britain for the surrender of the slaves of the Creole, who had gallantly achieved their liberty, and taken refuge in the West Indies? How comes it, Sir, that under this agreement an act of Congress secures to the Slave States officers in the navy in proportion to the number of their slaves? How is it, that under this agreement colored men are seized in the District of Columbia, under "the exclusive jurisdiction" of the Federal government on the suspicion of being slaves, and, when that suspicion is rebutted by the non-appearance of any claimant, are sold as slaves for life, to pay their jail-fees? Perhaps it would be denouncing our fathers, to say that Messrs. Webster and Cass may search the archives of Austria in vain for any act so utterly diabolical as this, perpetrated by a government which it was agreed "should have nothing to do with slavery." Was it to carry out this famous agreement that the Federal government officially declared through its Secretary, Mr. Calhoun, that Texas was annexed to preserve the institution of slavery from the perils that threatened it?

Once more, Sir. We all know that the slaveholders regard the free blacks as dangerous to the subordination of their slaves, and are contemplating their forcible removal. Think you, Sir, Mr. Webster was mindful of the agreement you have discovered, when, on the 7th of last March, in his place in the Senate, he proposed his magnificent scheme of taxing the whole nation untold millions to give additional security to property in human beings? "If," said the Massachusetts Senator, "any gentleman from the South shall propose a scheme of colonization to be carried on by this government upon a large scale, for the transportation of free colored people to any colony or any place in the world, I should be quite disposed to incur almost any degree of expense to accomplish the object." The magnitude of the scheme, and the cost at which it is to be accomplished, are thus hinted: – "There have been received into the treasury of the United States EIGHTY MILLIONS of dollars, the proceeds of the sales of the public lands ceded by Virginia. If the residue should be sold at the same rate, the whole aggregate will exceed TWO HUNDRED MILLIONS of dollars. If Virginia and the South see fit to adopt any proposition to relieve themselves from the free people of color among them, they have my free consent that the government shall pay them any sum of money out of the proceeds which may be adequate for the purpose." Will you, Sir, please to point out the article of the agreement of 1787, which, while it restricts Congress from having any thing to do with slavery, sanctions an appropriation not exceeding two hundred millions of dollars, for the purpose of strengthening the institution of slavery, by relieving the slaveholders from the presence of free people of color, and forcibly transporting to any place in the world hundreds of thousands of native-born Americans, who have as good a constitutional right to the pursuit of life, liberty, and happiness on their native soil, as Mr. Webster himself? Mr. Webster, it seems, now views the subject of negro colonization in precisely the same light that he did thirty years since, although his intentions on this, as on various other points, have undergone marvellous changes. We learn from a Massachusetts paper (Congregationalist, 6 July, 1849), that this gentleman was in 1822 appointed by a public meeting to draft a constitution for the State Colonization Society. After considerable discussion in the committee he rose and said, "I must leave. I understand the whole project. It is a scheme of the slaveholders to get rid of their free negroes. I will have nothing to do with it."

And how, Sir, as a member of Congress, have you fulfilled this agreement to have nothing to do with slavery? Not only have you required "good citizens," when commanded, to hunt and catch slaves, but you have even fixed a money value on every slave. If a master fails to recover his fugitive slave through the agency, "direct or indirect," of any citizen, you give him an action for damages. In all other cases of trespass, the damages sustained by the plaintiff are assessed by a jury according to the evidence. You kindly save the master the trouble of proving the value of his lost property, and give him out of the pockets of the defendant $1,000, no matter whether the slave was sick or well, young or old. If a woman escapes with a child at the breast, the master is to have $2,000! Recollect, Sir, this is for damages to the slaveholder; the trespasser is to pay to the government, which was to have nothing to do with slavery, another thousand dollars, and to be incarcerated six months. Either, Sir, you have wholly mistaken the nature of the "agreement," or the slaveholders, through the aid of their Northern auxiliaries, have, in defiance of the agreement, rendered the Federal government a mighty engine in protecting, extending, and perpetuating the stupendous iniquity of human bondage.

Your first excuse for voting for the recent slave-catching law, after relying on your "constitutional obligation," is, that it is "practically more favorable to the fugitive than the law of 1793"!!! The Southern lawyers, then, who drafted the bill, were a set of blunderers, and your constituents are blockheads for blaming you for legislating against human rights, when, in fact, you were loosening the bonds of the oppressed, and facilitating escape from the prison-house. Your assertion may well excite astonishment at the South as well as the North, till your proof is known, and then, indeed, astonishment will be exchanged for ridicule. You tell us, "the evidence of such an assertion may be found in the fact, that by the old law every magistrate in Massachusetts, amounting to several hundreds, and so in the other States, were authorized and required to cause the arrest of any fugitive, examine into his case, and deliver him to the claimant, if he was proved to be a slave; while under the new law that power is limited to the justices of the United States' courts, and to the commissioners appointed by them, not exceeding, perhaps, on an average, six or eight persons in each State." So it seems the slave-catchers had formerly no difficulty in finding a magistrate among hundreds to aid them, but that now, before they hunt a slave, they must hunt and catch a United States judge, or a commissioner of six or eight in a whole State. Truly a hard case, and yet the slaveholders themselves set the very trap in which they have been caught, and thus it is that, through their folly, and your generosity in not pointing out to them the blunder they were committing, the new law is more favorable to the fugitive than the old one. Surely, Sir, it could not have been more perilous to the young West Indian judge to meddle with "reasons," than it is for you. Either, Sir, you voted for the law without reading it, or you have forgotten its provision. Be assured, the Southern lawyers were as well acquainted as yourself with the fact, that a few individuals, termed "commissioners," had been appointed by the United States courts to perform certain ministerial acts; and that, as these men were now to be promoted to the office of slave-catching judges, they would be wholly inadequate in number to lend efficient aid to the hunters of men. Hence, they inserted in the third section of the bill, the following enactment, which has strangely escaped your recollection, viz.: – "And it is further enacted, that the Circuit Courts of the United States, and the Superior Courts of each organized Territory of the United States, SHALL from time to time ENLARGE THE NUMBER OF COMMISSIONERS with a view to afford reasonable facilities to reclaim fugitives from labor, and to the prompt discharge of the duties imposed by this act." So that, instead of six or eight commissioners in a State, we are to have as many hundreds, if needed. Nor is this all. By the second section, the power possessed by the Circuit Courts to appoint commissioners is for the first time conferred on the Territorial courts, so that there shall be no lack of slave-catching judges in Oregon, Utah, and New Mexico. Instead of your six or eight commissioners in a State, your law contemplates that there shall be one or more in each county; for the fifth section provides, that, "the better to enable the said commissioners to execute their duties faithfully and efficiently, … they are hereby authorized and empowered, within their counties respectively," to appoint one or more persons to execute their warrants. So it seems we are to have an unlimited number of judges and executioners. These executioners, expressly appointed to catch slaves, and of course among the most worthless and degraded of the community, are one and all invested with the power of a high sheriff to call out the posse comitatus, not merely in his own county, but in every hamlet in the State, and require "good citizens," under pain of fine and imprisonment, to join him in his execrable hunt. Really, Sir, your "evidence" that the new law is more favorable to the fugitive than the old one falls short of demonstration.

You thus apologize for not giving the alleged fugitive a trial by jury. "There was no more trial by jury provided for under the old law than under the new law. The claim of a jury trial is entirely new; never thought of till modern discussions of the subject begun. For fifty-seven years our fathers and we have been living under the laws which provided no such thing, and now one which makes no such provision is denounced in unmeasured terms as cruel and inhuman. Where have we all been living for half a century?" Surely, Sir, it is a most logical reason for not changing a wicked law, that it has been in force for fifty-seven years. Strange that the legislators of Massachusetts did not perceive the force of this reasoning when they abolished the laws for hanging witches and whipping Quakers. Permit me, Sir, to ask, Where had you been living when you declared it to be the duty of Congress to give the fugitive a trial by jury, although for fifty-seven years such a trial had been denied him? You probably forgot, Sir, when giving the above "reason," that, not long before you took your seat in Congress, you had, as a member of the Massachusetts Legislature, voted for the following resolution, viz.: – "We hold it to be the duty of that body [Congress] to pass such laws only in regard thereto as will be maintained by the public sentiment of the free States, where such laws are to be enforced, and which shall especially secure all persons, whose surrender may be claimed as having escaped from labor and service in other States, the right of having the validity of such claim determined by a jury in the State where such claim is made." So it seems that, while in Boston, you esteemed it the especial duty of Congress to grant the fugitive a trial by jury, but that in the atmosphere of Washington you acquired new views of moral philosophy.

Suffer me, Sir, also to inquire, Where had Mr. Webster been "living for half a century," when, on the 3d of last June, he introduced into the Senate a bill amendatory of the act of 1793, granting the alleged fugitive a trial by jury whenever he shall make oath that he is not the slave of the claimant?

Another of your "reasons" is, that your law does not suspend the habeas corpus, and in proof of its innocence in this respect, you refer to the opinion of "legal authority of the highest kind," viz. Mr. Crittenden, of Kentucky. It is very true that the words habeas corpus are omitted in your law, as the word slave is in the Constitution, but in neither case is the omission of any practical importance. You must be aware, Sir, that whenever a person is in the custody of another, if sufficient ground be shown to render it probable that the custody is illegal, the writ is granted as a matter of right. But why is it granted? That the court may at its discretion, according to circumstances, remand or discharge the prisoner. Take away from the court the discretionary power to discharge, and the writ is rendered an idle form. Your law, you say, does not suspend the habeas corpus; it is guiltless of such an enormity. A man who is carrying off one of our citizens in chains, may indeed be served with the writ, and he brings his prisoner before the court, and he produces a paper for which he paid $10, and reads from your law, that this paper, called a certificate, "shall be conclusive," and "shall prevent all molestation of said person or persons by any process issued by any court, judge, or magistrate, or other person whomsoever." It is because the word process, instead of habeas corpus, is used, that your law does not suspend the writ of freedom! In vain may the prisoner plead that he is not the person mentioned in the certificate; in vain may he offer to show that the certificate is a forgery; in vain may he urge that the man who signed the certificate was not a commissioner. The little piece of paper costing ten dollars is to save the slave-catcher from "all molestation," not because the writ of habeas corpus is suspended, – O, no! but in consequence of the words "any process"!

You refer to two objections, which you say are made to your law, and endeavour to refute them; viz. the onerous obligations imposed upon the marshal, and the penalties attached to an attempt "to assist in the rescue of the slave after he has been proved to be such." You have evinced your discretion in confining yourself to only four objections made to your law; viz. the denial of a jury trial, the suspension of the habeas corpus, the duties of the marshal, and the penalties imposed on an attempt to rescue the slave after judgment. With what success, and with what "reasons," you have combated the first two has already been seen. As to the last two, they scarcely merit an answer, and hence you have selected them. If the obligations of the marshal are onerous, he has voluntarily assumed them by accepting the office. If, in a civilized country, a man attempts forcibly to rescue a prisoner in the custody of the law, he must expect to be punished. There are many weighty objections to your law which you have not thought it expedient to notice. Permit me to supply your omission, and to tell you why your law is so intensely odious. And here let me again remind you of the true issue between you and the people. It is not now the constitutional power of Congress under the decision of the Supreme Court to pass a law for the recovery of fugitive slaves, – this is conceded. The odium you have experienced, and against which you have appealed to the public, is caused by your having voted for a law which, in its details, violates the Constitution, and outrages justice and humanity. Throughout your long and labored apology, you avoid grappling with these charges. You vindicate the denial of a jury trial only on the ground that it has been denied for fifty-seven years, and on the authority of Mr. Crittenden affirm that the habeas corpus is not suspended; but you avoid the constitutional and moral objections urged against your law.

By the Constitution, fugitive slaves are to be restored to those, and those only, who are legally entitled to their services. The means of ascertaining whether a man is a slave, whether he has fled from his master, and whether the claimant is legally entitled to him, are not defined by the Constitution. It is now intrusted to the discretion of Congress to specify these means, but of course that discretion ought to be exercised in accordance with the Constitution, with justice, and with humanity. The complaint against you is, that you have voted for a law which outrages them all, and against this complaint you have failed to offer the shadow of a vindication.

A Virginian comes to Boston, and there seizes one of the inhabitants as his slave. The man claimed declares the claim to be false and fraudulent. Here, then, is an issue both of law and of fact between two men equally entitled to the protection of law; for the man claimed is on every presumption of law and justice to be regarded as free, till the contrary is proved. The issue between these two men is, I have said, one of fact and of law. Is the person seized the man he is said to be? This is a question of fact. Admitting his identity, is he a slave, and, if so, does he belong to the claimant? These are both questions of law, resting upon facts to be proved. Those familiar with the reports of Southern courts know that the title to slaves is a frequent matter of litigation, involving intricate questions respecting the validity of wills, the construction of deeds, the partition of estates, and the claims of creditors. By carrying a slave into a free State, the owner forfeits his title to him while there, and cannot reclaim him; and hence the acts of the claimant himself may be involved in the issue. And now, Sir, I ask, have you ever known, or can you conceive of, any issue at law respecting the title to property so awfully momentous to a defendant as the one we are considering? Were your son or daughter the defendant in such an issue, would you not rejoice to purchase a favorable judgment by the contribution of the last cent of your great wealth? Let us, then, proceed to inquire what provision you, in the fear of God and the love of justice and humanity, have made for the trial of this tremendous issue, – an issue on the result of which all the hopes of a fellow-man for the life that is, and for that which is to come, are suspended.

In the first place, What is the pecuniary value of the plaintiff's claim to himself? – for it would be an insult to humanity to estimate in dollars and cents the blessings of liberty and of the conjugal and parental relations to the unhappy defendant. You have yourself fixed the value of the plaintiff's claim at one thousand dollars. So far, then, the issue is, by your own showing, within the constitutional guarantee of trial by jury in all suits at common law where the matter in controversy is of the value of twenty dollars. But is the claim made by the plaintiff "a suit at common law"? What is a suit? The Supreme Court thus answers the question: – "We understand it [a suit] to be the prosecution or pursuit of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice." (6 Wheaton, 407.)

It seems, then, that the Virginian, in claiming an inhabitant of Boston as his slave, in fact brings a suit against him for services due worth one thousand dollars. Now remember, Sir, the fugitive is not to be delivered up, as a mass of flesh, or inanimate matter, belonging to the claimant, but as a debtor, in the phraseology of your own law, "owing service or labor." The suit is brought for service or labor due, and the Constitution provides that the person so owing service or labor shall be delivered to him to whom the same is "due." And now, is this suit for service due "a suit at common law"? Again let the Supreme Court answer. "The phrase common law, found in this clause [the clause guaranteeing a jury trial], is used in contradistinction to equity and admiralty and maritime jurisdiction. 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 inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By common law, they meant what the Constitution denominated, in the third article, 'law'; not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered… In a just sense, the amendment, then, may 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." (3 Peters, 446.)

If there be meaning in words, these authorities settle the case, and your law is in palpable violation of the amendment to the Constitution securing a trial by jury in suits at common law where the matter in controversy exceeds twenty dollars in value. Think not, Sir, that I am misrepresenting the Supreme Court. I know well that the dicta I have quoted have reference to white men, and that they have been virtually set aside in decisions respecting black men. I well know, that, in our model republic, law and justice and morality are all cutaneous. But admitting that the Supreme Court have stultified themselves, and virtually denied, that, where a suit was brought for the services of a black man, the Constitution required a jury trial, recollect, Sir, that not in one single instance has the court decided that the Constitution prohibited such a trial. But if not prohibited, then Congress are permitted to accord such a trial, and both you and Mr. Webster have declared that Congress had a right to grant such a trial, and ought to grant it. In voting, therefore, for a law denying such a trial, you made a voluntary surrender to the slaveholder of the security which such a trial would have afforded to multitudes of your poor, ignorant, oppressed fellow-men. For this act of cruelty and injustice, committed against your own late conviction of duty, what is your justification? Why, that the blacks had been already deprived of the right of trial by jury fifty-seven years!

Let us now see what tribunal you have substituted for a jury in the trial of one of the most momentous issues that can engage the attention of a court of justice. You have provided for the appointment of an indefinite number of judges, each of whom is to have exclusive jurisdiction of these issues, and from whose judgment there is to be no appeal. The Constitution declares, "The judges, both of the Supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." These judges are appointed by the Senate, on the nomination of the President. Your herd of judges, called commissioners, are appointed by the courts, and hold office during pleasure, and instead of receiving a salary, are rewarded by a rule the infamy of which, it is believed, belongs to your law exclusively, – a rule which doubles their compensation whenever they decide in favor of the rich plaintiff, and against the poor and friendless defendant. But perhaps you will deny that these men are judges; for, if judges, their appointment is palpably unconstitutional. Let us hear the Supreme Court, at a time when it was deemed expedient to maintain that the persons who executed the law of 1793 were judges. "It is plain, that, where a claim is made by the owner out of possession for the delivery of a slave, it must be made, if made 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 adverse to each other, it constitutes, in the strictest sense, a controversy between parties, and a case arising under the Constitution of the United States, within the express delegation of judicial power given by that instrument." (16 Peters, 616.) Hence your commissioners are, in the strictest sense, judges, exercising "judicial power" delegated by the Constitution.