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attaint his blood. Right here let me ask, Will some one tell how the function of the commissioners and their manner of proceeding differs in kind or degree from that of the commissioners under the Fugitive Act?

good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.” And in Martin's Lessee v. Hunter, the Supreme Court held that the power here given was the whole judicial power, and that Con- It was in consequence of these arbitrary progress had no authority to vest any part of it ceedings, by which this great barrier of the elsewhere than in courts constituted of judges subject against the usurpations of the sovereign holding their offices by this tenure. The act of had been broken down, that it was again de1850, however, attempts to vest some portion of clared in the Petition of Right during the time this very judicial power (so held to be by the of the first Charles, and still again affirmed in Supreme Court), in certain officers called com- the " Bill of Rights" at the revolution in 1688. missioners. But these commissioners are unde- This great provision was obviously intended to niably not "judges," within the language and protect Englishmen against such arbitrary seplain meaning of the Constitution. A commis-cret ex parte proceedings; and it was put into sioner does not hold his office during good be- the Constitution, by way of amendment, to prohavior, but at the will of the circuit court which tect all men against the same thing here. "Due appointed him, and he does not at stated times process of law," then, means that careful, receive a fixed compensation, but is paid by guarded, precise, and strict proceeding known fees, getting (O shame!) thrice as much from to the English law, which is had in open and the claimant if he decides for him as if he de- regularly constituted Courts, and which secures cides against him. To this extent, then, the to every person due means and opportunity of act of '50 is a clear violation of the Constitu- defending his life, liberty, and property. But tion. This point is fairly before the court, if it we are not without judicial authority on this shall fail to recognize the power of private re- point. caption; (and who can doubt that?) for then the only offence charged against Langston is that of resisting the process of a commis

sioner.

"The better and larger definition of due process of law," says Kent, "is, that it means law in its regular course of administration, through courts of justice."

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But I proceed to a still more serious objec- "The law of the land"— (which is always tion. The Constitution by one of its amend-held equivalent to due process of law) ments declares that "no person (mark that bills of right,” says Chief Justice Ruffin, of word 'person'), shall be deprived of life, lib- North Carolina, in the elaborate opinion deliverty, or property without due process of law." ered in Hoke v. Henderson, 4 Dev. N. C. Rep. What do these words, "due process of law," 15 (and one replete with sound Constitutional mean? What did they mean, when they were doctrines), "does not mean merely an act of incorporated into the Constitution? They the legislature, for that construction would abmeant the trial of any right asserted against rogate all restrictions on legislative authority. a man's liberty, life, or property, by a regularly The clause means, that statutes which would constituted judicial tribunal, sitting in the light deprive a citizen (in the Federal Constituof day, proceeding after established rules, con- tion the word is "person")" of the rights of fronting the man with the witnesses against him, person or property, without a regular trial, acsecuring to him the right of cross-examination, cording to the course and usage of the common and due opportunity to produce evidence in his law, would not be the law of the land in the own behalf. sense of the Constitution."

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That is what the words, "due process of law," The Constitution, then, intended to secure to mean. It was what they meant in Magna every "person" a regular trial in due course of Charta, for there they were first used. But in law, before regularly constituted courts of jusspite of Magna Charta, it was the practice of tice, the party being allowed to be present, English sovereigns, backed up by the servility confront his witnesses, cross-examine them, of English Judges, down to the revolution of and due time and opportunity of making his 1688, to seize men and try them before irregu- defence. But in all these respects the act of lar tribunals, unknown to the common law, such 1850 violates this provision of the Constitution. as the Star Chamber, and which proceeded in Now suppose you seize a man here in Columsecret, and in the absence of the accused. Or bus to-day, upon claim that he is a slave. When not unfrequently, when a man became obnox-seized he is at liberty. The very first question ious to the Crown, it would appoint commis- is, shall this man, then at liberty, be deprived sioners, constituting irregular courts, not the of this liberty? Whether he is white or black, regular courts of the common law, with stated terms, but often commissioned to try a specifically-named person, and they went down and tried the case in secret, without a jury, without confronting witnesses, without the presence of the accused, and upon ex parte evidence would take away his property, liberty, and life, and

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you start out with the presumption in his favor, that he is free; a presumption older than the Constitution, older than the common law, older even than Christianity itself, for it was a maxim of the Roman law before Christ was born, and it is to-day a maxim engrafted on the laws of every civilized country, all the world over,

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except the slave States of this Christian Re-nately, not simply general principles but the public. Supreme Court itself has illuminated this particular question so as to exclude all possibility of mistake. To determine what is a suit at common law, we have only to look at the proceedings authorized and conducted under its own rules as distinguished from cases in equity or admiralty. Now looking back to no very remote period at common law, we find that there existed a system of slavery known under the apt name of villanage, the slave belonging to the lord of the soil. This relation, with all its incidents and the mutual remedies given to master and servant, was duly regulated by the common law. Slaves then as now escaped from their masters. What was the remedy of the lord? Without undertaking here to enumerate them or the precise nature of each, I may say generally that the lord could not seize and retain his slave, except in virtue of some common law proceeding which involved a trial by jury before one of the Superior Courts. Your honor will find the various proceedings enumerated and explained in Hargrave's notes to the case of "Somerset," 20 Howell's State Trials, 38.

The question then is, shall he be deprived of his liberty? How shall this question be determined? The Constitution says, 66 Only by due process of law." It says that you shall not deprive him of that liberty in which you found him that liberty to which the law presumes him entitled — you shall not hold him as a slave unless you first establish that he is your slave, by the judgment of a regular judicial tribunal, in a proceeding regularly instituted and duly conducted in open court, confronting him with the witnesses against him, or yielding him the opportunity to cross-examine them, and giving him reasonable time and opportunity to produce the evidence, if he have such, of his freedom. This is what the Constitution says you shall do before you shall take him away as a slave. But how does the act of 1850 say you may do this? Let its provisions answer. By its very terms the judge or commissioner is specially enjoined to determine the case in a summary manner, and he is specially authorized and required to receive as evidence, ex parte affidavits taken in a distant State. Or by still another provision, upon the production Thus, as determined by that law itself, the of a record, made upon ex parte proof, in a remedy of the lord for a fugitive slave, was a distant State, perhaps years before, which cer- suit at common law, a suit to be tried by a tifies that the fugitive owes labor and service jury; and the forms of the writs, counts, pleadand has escaped-containing a general de-ings, verdicts and judgments, in these suits are scription of the person with such convenient still to be found among the precedents of the certainty as may be upon the bare produc- common law. But this is not all. I come tion of this ex parte record, coupled with simple back again to the Supreme Court of the evidence of "identity," the judge or commissioner is required imperatively to adjudge him a slave and deliver him up to the claimant. And now I desire the court, by their judgment, to say, whether this is the "DUE PROCESS OF LAW," without which no man's liberty can be taken away—whether this is the tenure by which we all hold our property, liberties, and lives. But the safeguards for the liberty of the person do not stop here.

United States, and fortify myself with its authority. In Parsons v. Bedford (3 Peters, 456), considering this very constitutional provision, that Court says:

"By common law,' the framers of the Constitution of the United States 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 regarded, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law and of maritime law and equity was often found in the same suit.

Another provision ordains that "in suits at common law, where the value in controversy exceeded twenty dollars, the right of trial by jury shall be preserved." This provision has been repeatedly discussed and passed on by the Supreme Court of the United States, so that its effect is no longer the subject of question. "The amendment to the Constitution of the To the operative effect of this provision three United States, by which the trial by jury was conditions must co-exist: 1, a suit; 2, at com- secured, may, in a just sense, be well conmon law; and 3, the value of the matter in liti-strued to embrace all suits which are not of gation must exceed twenty dollars. Now, as equity or admiralty jurisdiction, whatever may we have already seen, the Supreme Court in be the peculiar form which they may assume to Cohens v. Virginia (6 Wheat. 407), hold that settle legal rights.” the prosecution of a claim was a suit, and that Now, since the proceeding to recover a fugiin the Prigg case, that the claim for the sur- tive slave is not a suit in equity or admiralty, render of a fugitive slave constituted in the but is a suit to settle the legal right of the masstrictest sense a 66 case," that is a "suit," "forter to his custody and possession, it must be a the exercise of the judicial power." The pro- suit at common law, within the meaning of this ceeding then under the act of 1850 is a suit provision. Here, then, whether we look back beyond all doubt or cavil. But next this suit to the common law itself to see what suits it is a suit at common law, and here again, fortu-embraced or to this exposition of the Consti

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tution, the proceeding to reclaim a fugitive is have the effect here attributed to them, then a suit at common law. This point is "settled." the learned counsel for the Government canIf, now, the value of a man's freedom is worth not deny this Court cannot deny that more than twenty dollars; or if, supposing him the Fugitive act of 1850 is void. to be a slave, he is worth more than twenty dol- The act of 1850 is also void on the further lars, he is entitled as of right and under the ex-ground that it protects or assumes to protect press sanction of the Constitution, to a trial by the asserted right of private recaption—for an jury. And here again we have an exposition alleged obstruction of which Bushnell is now of the clause in this respect, by the Supreme restrained of his liberty. The absolute nonCourt of the United States. In the case of Lee existence of this pretended right has, I think, v. Lee (8 Peters, 44), which was a petition for been already demonstrated, and might, perhaps, freedom, instituted by the appellants in the be left there. But I am yet to show that the Court below, and there decided against them, exercise of any such power is not simply not objection was made that the value in contro- authorized, but explicitly and affirmatively versy was not one thousand dollars; and there- prohibited by three distinct constitutional guarfore the appellants were not, under the statute antees. Now if, as I take it to have been alof the United States, entitled to appeal the case ready established, the master may not, by virto the Supreme Court. Now what did the tue of the adjudication of a commissioner which Court hold on this question? I read from preserves some semblance of trial, seize and the report: carry off this alleged fugitive slave, because that adjudication is the exercise of a judicial power, which cannot be vested in a commissioner; still less may a private person assume the exercise of that power and determine for himself his own rights. If the master cannot retake under the summary adjudication of a judge, because though it has the form of legal proceedings, it is not due process of law; and because it deprives the alleged fugitive of a jury trial; still less may he do it constituting himself judge, jury, and ministerial officer, without the intervention of any process, without the color of any adjudication. Still more, even, than such an adjudication, is this infa mous doctrine of recaption incompatible with the two constitutional provisions which secure the trial by jury and protect liberty against every thing but due process of law.

"By the Court The matter in dispute in this case is the freedom of the petitioners. The judgment of the Court below is against their claims to freedom; the matter in dispute is, therefore, to the plaintiffs in error, the value of their freedom, and this is not susceptible of a pecuniary valuation. Had the judgment been in favor of the petitioners, and the writ of error brought by the party claiming to be the owner, the value of the slaves as property would have been the matter in dispute, and affidavits might be admitted to ascertain such value. But affidavits, estimating the value of freedom, are entirely inadmissible; and no doubt is entertained of the jurisdiction of the Court."

This case, then, founding itself on principles of universal justice and humanity, affirms that the right of a man to his freedom is worth, not merely one thousand dollars, but is above all pecuniary valuation.

This doctrine is also pointedly prohibited by that other amendment which declares that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

Summing up these results, what are they? Mark: I appeal now to no "new-fangled radical" doctrine; to no wild utterance of some fanatic, "crazy" on the subject of freedom; but to res adjudicata; to the Supreme Court Now I beg to know whether the seizure of a of the United States, whose decisions are person, white or black, on the mere claim that claimed by the other side to "conclude ev- he belongs to you, unsupported by oath, affirmacry question within their scope. That Court tion or evidence, without the color of process first declares that the "claim" for a fugitive or pretence of trial, and the transportation of slave is a "suit." The same Court next declare that it is a "suit at common law." The same Court next declare that "the value in controversy in any such suit exceeds twenty dollars; " exceeds all valuation. All these results are "concluded" by the Supreme Court of the United States, if that Court can conclude any thing. The Constitution, then, as construed by the tribunal - here asserted to be its final expositor-ordains that upon every claim for the reclamation of a fugitive slave, he shall have the right of trial by jury. How do the learned counsel for the Federal Government like this res adjudicata? and how, upon their own reasoning, do they escape its force? If the decisions of the Supreme Court

him to another State, where he is presumed to be a slave if he have a taint of negro blood in his veins, though no trace of it in his skin, I beg to know whether this is not just such a seizure as this clause meant to prohibit; and if it does not forbid this, what, in the name of freedom, does it forbid? In answer to these objections, it is sometimes said that neither the power of recaption, or the adjudication of a commissioner, deprives him of his liberty without due process, or of the right of trial by jury, but that when he has been taken into a slave State all these rights shall be accorded to him. I reply, First, that the very act of caption deprives him of his liberty. Second, that the adjudication of the commissioners not only in terms, pronounces

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3. It deprives all persons subject to its operaand every person, white or black, is so subject of their liberties, without due process of law.

4. It openly contravenes that right of the people to be secure in their persons against unreasonable searches and seizures.

him to be a slave, and delivers him as such to it is beyond all price, it takes away the trial by the absolute control of the claimant, but that jury. adjudication, though rendered on an ex parte record, or ex parte evidence, is, by the act of 1850 itself, declared to be everywhere conclusive, in the slave as well as free States. I reply, thirdly, that the moment the master gets his fugitive, even without process, into a slave State, the maxim which presumed him free, is changed, and he is from thence intended in law to be a slave; and possession of him is primâ facie evidence of slavery; and, lastly, of those who babble about his instituting there a suit for his freedom, I desire to know how a freeman, sent as a slave to the rice swamps of South Carolina, in the custody of one who, in virtue of that very possession, is his presumed master, and who, as such, holds by law the power of life and death over him,—I desire to know how, under this absolute duress and with all these artificial and cruel presumptions against him, this free man is to assert his title to freedom?trict Court are a nullity. Will it be claimed and if this is not depriving a man of his liberty, what act of forcible seizure can be defined as such? This paltry subterfuge is an insult not less offensive to common sense than to common humanity.

Finally, then, if the Court please, I arraign this ACT of 1850 as a FLAGRANT USURPATION BY CONGRESS OF WHOLLY UNDELEGATED POWERS.

1. Upon the argument drawn from the history of the Constitution, the truth of which history no man can gainsay, and the strength of which argument no man can resist.

2. Upon the authority of the Supreme Court of the United States itself, which, times without number, and everywhere, save in the Prigg case, in the Booth case, and in the Van Zandt case, has declared the great principle that Congress has no powers save those expressly granted, and such as are purely subsidiary to the expressly granted powers, so that obedience to the Supreme Court in the Prigg case, is disobedience to its judgments in a thousand other

Against this arraignment what do you find interposed? Denial of its truth? No What is the answer? Still and only still res adjudicata. But what is meant by this res adjudicata? Has any Court, Federal, or otherwise, ever passed upon the application now before your Honors? No such thing is pretended. Assuming the Fugitive act to be unconstitutional and this plea virtually admits that has any competent tribunal ever passed upon the rights of Langston and Bushnell in this behalf? No, for the proceedings in the Dis

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that the judgment in the Prigg case, or the Booth case, operated by its own force to bind these applicants, that it estops them? Surely not.. How then can the Prigg case or any other be set up here against them? Why, say the counsel, that case "settled" or "declared" as the law of the land, a certain rule which applies to these cases, and by which the rights of the relators must be determined. With deference I beg leave to say that Courts don't and can't settle or declare the law of the land. In a constitutional government that function belongs to the law-making power, the legislature, alone. If Courts can usurp that function, it would be wise economy to abolish the Legislature and get that useless machine out of the way. What then do Courts settle? The rights of the parties litigant in each case, nothing more, nothing less, nothing else. In discharging this vitally important duty Courts endeavor to ascertain the principle of law which applies to the particular state of fact then before them, and ascertaining that or supposing themselves to have ascertained it, they decide the rights of the parties to that particular suit, accordingly. Obviously the only thing which has been adjudicated, is that one or the other of these parties shall have such judgment in his favor as the Court deems it proper to render, But if, notwithstanding these seemingly irre- and that judgment becomes a law to those parsistible grounds for that impeachment, the ties and the law of that case. Now a single Court shall nevertheless be of opinion that decision or a series of decisions settling the Congress has some power to legislate upon that rights of parties litigant, according to some subject then I arraign this act as transcend- supposed general rule, are evidence more or ing those prohibitions of the Constitution which less strong, depending entirely on the strength circumscribe and limit all Federal power, of the reasoning, and the justice of the concluwhether executive, legislative, or judicial, within impassable bounds.

cases.

3. Upon the TEXT of the Constitution itself, which not only confers no power on Congress over the subject; but leaves all power with the States, in language too plain to be mistaken, too clear to admit of misinterpretation.

1. It vests a vital portion of the judicial power of the United States in tribunals not known to, and inhibited by, the Constitution.

2. In a suit at common law, where the value in controversy exceeds twenty dollars, where

sion, that the rule acted upon in those cases is the right rule, and ought to be applied to all cases similarly circumstanced. But still such adjudications are only evidence, and the weight of their testimony, in favor of any supposed rule, must be determined for itself by every Court when called on to apply that rule

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to the resolution of any case pending before it. Every day's practice in every Court illustrates this. Judges sometimes err as to the correctness of a rule by which they decide a particular case, sometimes the error becomes inveterate, but finally it is found to be erroneous. Do even the same Courts, therefore, persist in deciding all future cases, by this wrong rule? Not at all. If the error involve any important question, touching property, liberty, or life, the Court applies the right rule, or what it conceives to be such, to the very next similar case that depends before it. Every Court, this Court, the Supreme Court of the United States, habitually disregards any rule affecting important interests by which they have decided previous cases, whenever satisfied that the rule is not the right one. On no other condition is improvement in the law possible. But how could Courts disregard any such previously accepted rule, if it became the law of the land? For it is a mere truism to say that Courts are as much bound by the law of the land; have no more power to change or disregard it than the humblest citizen.

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Your Honors, then, are not bound to follow the rule on which the Prigg, or the Booth, or any other case was decided, if, on careful examination and reflection, that rule is, in your judgment, wrong. Especially are you bound by your solemn oaths to disregard it if exercising your best judgment and it is your judgment alone that must be exercised scientiously believe it to be repugnant to the Constitution. To that you owe your first and last and chief allegiance; and if any case conflicts with it, you must throw that case to the winds. Why, to what end were the limitations and prohibitions of the Constitution to which I have adverted, and upon which I claim the discharge of these applicants to what end, I say, were they made? For the very purpose of securing the natural birthright of man to his freedom, a right in itself a very sacred thing, by the most explicit and absolute recognition of its inviolability, so that I quote from Burke to the inherent sacredness of the right itself, is added the sanctity of that solemn public faith so formally pledged for its security. Against whom were these limitations and prohibitions directed? Undeniably against every department of the Federal Government, since they are operative only against that Government.

They were meant to secure this great natural, sacred right, not only against usurpations by the Executive and Legislative Departments, but especially as their subject-matter indicates, to protect them against the chicane of the judicial power of that Government. But can your Honors be made to believe that these very inhibitions, designed expressly to hedge in this judicial power, may be overpassed by it at its own pleasure; and that if in one or more cases, it has asserted its right to transcend these limits, this Court, and all other courts are forthwith bound,

by the very Constitution which has been thus violated, to acknowledge the existence of this asserted right? On the contrary, these formal recognitions and guarantees by the Constitution, of an original action of man, cannot be subverted, by even the judicial power, without uprooting "the holding, radical principles" of the Government, nay, even of the SOCIAL COMPACT ITSELF.

But then, I am asked, where is this to end? If the State courts refuse to recognize the general principles of constitutional interpretation declared by the highest Federal Court, which of the diverse interpretations, which, it is said, must then ensue, shall prevail? The question, though not pertinent, admits of several answers, but one shall suffice. Every court must, from the necessity of things, determine every case before it, upon its own view of law. If the given case be not within the appellate jurisdiction of the Supreme Court of the United States, the decision of the State Court is final, and there the matter ends. If, on the contrary, the case be within the appellate jurisdiction of that Court, it will decide that ase on its own notions of the law, and as that decision will be final as to the case, there the case will end. This is the rule of the Constitution, and while it leads to no conflict of jurisdiction, it yet devolves on each system of courts its own proper rights and duties, and holds it to its own due responsibility.

Before leaving this topic, I desire to ask of those who insist so strongly on res adjudicata, which of two differing res adjudicata shall the Court obey? Shall it follow Martin's Lessee against Hunter, Cohens against Virginia, and that long bead-roll of cases in which the Supreme Court has declared that Congress has none but expressly delegated powers, or the Prigg, and Booth, and Van Zandt cases, three by tale, in which it has declared an exactly opposite conclusion? And again, by the four cases which I cited when considering that subject, the Supreme Court declare in effect that no fugitive slave shall be delivered up until the master has established his right by the verdict of a jury. On the contrary, by the Booth case, that same court declares that he may be delivered up without such verdict. You cannot follow all of these cases. Pulled in opposite ways by these contending forces, to which shall your Honors yield? GO BACK, I SAY, TO THE TEXT OF THE CONSTITUTION, PLANT YOURSELVES ON ITS PRIMAL GRANITE, AND FOLLOW THE RULE WHICH YOU SHALL FIND SO PLAINLY AND INDELIBLY GRAVEN THERE. That rule needs no authority other than its own, for it is supreme. But if you still desire the authority of adjudged cases, I have shown them to you. I ask the Court to tread no new path. Let it stand super antiquas vias. Let it follow the ancient maxim upon which I have insisted, coming as it does from Pagandom down to

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