CHARGE TO GRAND JURY -- FUGITIVE SLAVE LAW
Case No. 18,263
District Court, D. Massachusetts
1851 U.S. Dist. LEXIS 6; 30 F. Cas. 1015; 1 Sprague 593
March, 1851
OPINION: [*1]
[**1015] The fugitive slave law, passed in September,
1850 [9 Stat. 462], was received, in Massachusetts, with almost universal
regret and disapprobation. With not a few, it produced great excitement, and
exasperation. Some openly avowed a determination to resist it by violence,
declaring that it was a matter of conscience not to permit it to be executed.
In the following February, a negro, by the name of Shadrach, was arrested in
Boston, as a fugitive slave, and carried into the United
States' court rooms for examination before a commissioner. A mob broke into the
room, took him by force from the officers of the law, and effected a rescue.At
the opening of the next regular term of the district court, in March, SPRAGUE,
District Judge, delivered the following charge to the grand jury:
The office you now hold demonstrates that the constitution has established, not
a mere confederacy of states, but a government acting directly upon
individuals, with a legislature to enact laws, a judiciary to expound them, and
an executive to enforce them. Under this government, the people of the United
States have enjoyed a greater degree of liberty, prosperity, and happiness,
than have [*2] been enjoyed by any other people in the history of
the world. To preserve this government, it is necessary that its laws should be
faithfully executed, and you are now called upon, under the highest sanction,
to aid in this indispensable work.
I think it proper, at this time, to call your attention particularly to that
part of the Criminal Code, which prohibits and punishes forcible resistance to
the laws. Government is so great a blessing, that the highest crime which can
be committed, is treason. This is defined by the constitution itself in the
following words: "Treason against the United States shall consist only in
levying war against them, or in adhering to their enemies, giving them aid and
comfort." [Const. art. 3, § 3.] What amounts to levying war? This question
arose soon after the adoption of the constitution, in the several trials of
Mitchell, Vigol, and Fries, for being engaged in the Pennsylvania insurrection,
against the law imposing a duty upon distilled spirits, under the
administration of Washington, and subsequently, in the trial of Aaron Burr, in
the year 1807, and in the case of U.S. v. Hoxie [Case No. 15,407], in the year
1808. These were all trials [*3] in the circuit court. The only
case which has come before the supreme court, was that of Ex parte Bollman, 4
Cranch [8 U.S.] 125. In this case it was decided that, "if a body of men
be actually assembled for the purpose of effecting by force a treasonable
purpose," this is levying war. What is a treasonable purpose? If the
object be entirely to overthrow the government, at any one place, by force, as
at New Orleans, which is the case mentioned by the supreme court, that is a
treasonable purpose. But a conspiracy to do this, and actually enlisting men
who never assemble, is not sufficient to constitute the crime of treason. There
must be an actual assemblage of men, for the purpose of carrying the conspiracy
into effect by force. So also, it is a treasonable purpose, if the object be to
prevent, by force, the execution of any one law of the United States, in all
cases; -- for it is entirely to overthrow the government as to one of its laws.
And if there be an actual assemblage of men, for the purpose of carrying such
an intention into effect, that is, of acting together, and preventing, by
force, the execution of the law generally -- in all cases it will constitute a
levying [*4] of war. But the sudden, outbreak of a mob, or the
assembling of men in order by force to defeat the execution of the law, in a
particular instance, and then to disperse, without the intention to continue
together, or to re-assemble for the purpose of defeating the law generally, in
all cases, is not levying war. If war be actually levied, persons may be
guilty, although not present with the force actually assembled. "All those
who perform any part, however minute, or however remote from the scene of
action, and who are actually leagued in the general conspiracy, are to be
considered as traitors."
There are minor offences created and defined by acts of congress alone. By St.
April 30, 1793, c. 9, § 22 [1 Stat. 117], it is enacted: "That, if any
person or persons shall knowingly and wilfully obstruct, resist or oppose any
officer of the United States, in serving or attempting to serve or execute any
mesne process, or warrant, or any rule or order, of any of the courts of the
United States, or any other legal or judicial writ or process whatsoever, or
shall assault, beat or wound any officer or other person, duly authorized in
serving or executing any writ, rule, order, process, [*5] or
warrant aforesaid, every person so knowingly and wilfully offending in the
premises, shall, on conviction thereof," be punished by fine and
imprisonment.
Thus you perceive, that, for more than sixty years, indeed, from the foundation
of the government, it has been a criminal offence to resist, or oppose, or
obstruct the marshal in the execution of a warrant or other legal proceess; and
so plain is the utility and necessity of this provision, that, during all that
time, no voice has been raised against it. So far from impairing the energy
with which the laws are to be executed, the people, by their legislation, have
added new sanctions. Thus by St. March 2, 1831, c. 99, § 2 [4 Stat. 488], it is
enacted: "That, if any person or persons shall corruptly, or by threats or
force, endeavor to influence, intimidate, or impede any juror, witness, or
officer, in any court of the United States, in the discharge of his duty, or
shall corruptly, or by threats or force, obstruct or impede, or endeavor to
obstruct or impede, the due administration of justice therein, every person or
persons so offending, shall be liable to prosecution therefor, by
indictment."
This salutary enactment [*6] to secure the free course of law has
been in force for nearly twenty years without objection. But we have recently
heard that not only should the courts be impeded in administering the law, but
that the marshal should be obstructed, and even resisted by force, in the
execution of legal process, because of a recent statute providing for the
[**1016] arrest and delivering up of fugitives from labor. It is to
be observed that this statute subjects no person to arrest, who was not before
liable to be seized and carried out of the state; for, ever since the adoption
of the constitution, these same persons have been liable to be taken and
carried away, by those from whose service they had escaped. For a preexisting
right created by the constitution and affirmed by the supreme court of the
United States, congress has provided a new remedy, by legal process to be
executed by a public officer, and has added penal sanctions more effectually to
ensure the execution of the law. If it have not all the safeguards we could
wish, so neither had the statute of 1793 [1 Stat. 302] passed by the fathers of
the constitution, with the approbation of Washington, and sustained by the
people for [*7] more than half a century.
The constitution commands that fugitives from labor shall be delivered up. The
supreme court has decided that it belongs to congress to provide the means.
Congress has enacted this law. It is imperative, and will be enforced. Let no
man mistake the mildness and forbearance with which the Criminal Code is
habitually administered, for weakness or timidity. Resistance must make it
sternly inflexsible.
Discussion is free. Men of all classes and of every shade of opinion may, by
argument or even declamation addressed to the reason or the passions, endeavor
to impress new views upon the public mind. But if, in their opposition to the
expressed will of society, they pass from words to deeds, and embody
mischievous doctrines into criminal acts of resistance to law, whoever they may
be, and whatever may be their position or their ultimate purposes, they must
sooner or later find that the law is irresistible and overwhelming. The people
have been so long accustomed to absolute repose and security under the quiet
administration of law, that they are not easily brought to believe that it can
be obstructed, much less to contemplate the consequences of its overthrow.
[*8] But let them be startled by acts of violence and systematic
resistance, let it be brought home to them as a practical question, whether
they will live under law, administered by responsible public agents, or under
the dominion of a mob, impelled by passion, guided by no rule, and subject to
no restraint, and they will rush to the support of the constituted authorities,
and indignantly repress the spirit of anarchy.
The statute of 1850, c. 60 [9 Stat. 462], after providing that the claimant of
a fugitive from labor may have a warrant for his arrest, or seize him without
process, proceeds, in the seventh section, to enact, "That any person, who
shall knowingly and willingly obstruct, hinder or prevent such claimant, his
agent or attorney, or any person or persons lawfully assisting him, her or
them, from arresting such a fugitive from service or labor, either with or
without process as aforesaid, or shall rescue, or attempt to rescue, such
fugitive from service or labor, from the custody of such claimant, his or her
agent or attorney, or other person or persons lawfully assisting as aforesaid,
when so arrested, pursuant to the authority herein given and declared; or shall
aid, abet, [*9] or assist such person so owing service or labor as
aforesaid, directly or indirectly, to escape from such claimant, his agent or
attorney, or other person or persons legally authorized as aforesaid; or shall
harbor or conceal such fugitive, so as to prevent the discovery and arrest of
such person, after notice or knowledge of the fact that such person was a
fugitive from service or labor as aforesaid, shall for either of said offences
be subject to" fine and imprisonment.
I have thus, as I proposed, called your attention to certain acts of congress
and provisions of the constitution. They are the law of the land, and it is our
most solemn duty faithfully to execute them. In the words of the oath which you
have just taken, you are to do this, "without fear, or favor, affection,
or hope of reward," presenting "things truly as they come to your
knowledge, according the best of your understanding."
Here I might close; but, as great efforts have been made to convince the public
that the recent law cannot be enforced with a good conscience, but may be
conscientiously resisted; and an impression may have been made on some of your
number, thus presenting an obstracle to the discharge [*10] of a
plain legal duty, I deem it proper to advert briefly to the moral aspects of
the subject.
In this part of the country, the convictions of our understanding, out moral
sentiments, and our religious opinions, are adverse to the institution of
slavery. Hence some are ready to conclude, in the first place, that the
provision of the constitution for delivering up fugitive slaves
must be morally wrong; and, in the next place, that laws made to carry it into
effect are to be disobeyed and resisted. Neither of these propositions
legitimately follows from the premises.
As to the first. The states, without the constitution, would be to each other
foreign nations. The first duty of every nation is the preservation and
protection of its own citizens. It is for this, primarily, that political
societies are formed and their restraints submitted to. If, then, any nation
finds that hospitality to foreign fugitives is inconsistent with its own peace
and safety, it has a right to refuse such hospitality, and to say, to all such
foreigners, we cannot receive you amongst us, and if you come, we must deliver
you up to the dominion of your own government; and it may rightfully make a
compact [*11] with such government for such delivery. Whether the
peace and safety of the nation do, in fact, require or authorize such compact,
it is for the nation itself to decide, and its decision is to be submitted to
and its engagements faithfully performed. Those, therefore, who have the
strongest convictions of the immorality of the institution of slavery are not
thereby authorized to conclude that the provision for delivering up fugitives
slaves is morally wrong, or that our fathers in Massachusetts did not
act wisely, justly, humanely, in acceding to the compacts of the constitution.
But, secondly, even those who go to the extreme of condemning the constitution
and the laws made under it, as unjust and immoral, cannot, even upon such an
assumption, justify resistance. In views, such laws are inconsistent with the
justice and benevolence, and against the will, of the Supreme Law-Giver, and
they emphatically ask, which shall we obey, the law of man, or the will of God?
I answer, obey both. The incompatibility, which the question assumes, does not
exist. Unjust and oppressive laws may, indeed, be passed by human governments.
But if Infinite and Inscrutable Wisdom oermit political [*12]
society having the power of human legislation to establish such laws, may not
the same Infinite and Inscrutable Wisdom permit and reguire the individual, who
has no such power, to obey them? Can you say that it is His will that we shall
rise up in forcible resistance, overthrow the power of the government, and,
instead of the peace and security of organized society, introduce the dominion
of anarchy and violence? Are such the appointed means for their abrogation?
Unjust laws have always existed. Until a recent period, poor and honest debtors
were, even here, oppressively imprisoned; and, in England, stealing, to the
value of more than a shilling, was punishable with death, and the Code numbered
more than one hundred and fifty capital offences. The wise and the good saw
that these laws were cruel and unnecessary. They did not rush to arms, or
counsel disobedience. But, by the diffusion of knowledge, by reason and
persuasion, they changed the public mind, and the laws were peaceably
ameliorated. The fruits of justice and benevolence, [**1017] like
the fruits of the natural world, are to be matured by mild and genial
influences. The punishment of death is still inflicted [*13] by our
laws. Many good men firmly believe that society has no right to take the life
of one of its members. With them capital punishment is the highest injustice
and the greatest wrong that can be inflicted. But they do not counsel
resistance, to convulse society and overthrow the government, but quietly and
conscientiously submit to the peaceful execution of the laws.
But we are told by some, that, the law being morally wrong, conscience tells
them to resist it. Conscience, indeed, is to be reverenced and obeyed, but
still we must remember that it is fallible, especially where the rights of
others are concerned, and may lead us to do great injustice. Some have an
impression that it is the divinity within them, an unerring and infallible
guide. Hence they cannot believe, or conceive, that opposition to their views
can be conscientious. It is this lurking fallacy, this tacit assumption of
personal infallibility, that makes them intolerant toward others, and
inaccessible to argument.
I speak not of those who believe that they have special inspiration from above;
that a miracle has been wrought for their guidance. Such are beyond the scope
of human reason, and fit subjects [*14] either of consecration, or a
mad-house, according as their belief is founded on reality or delusion. But,
with those who are under the dominion of the established laws of the moral and
intellectual world, conscience is fallible. The annals of the world abound with
enormities committed by narrow and darkened conscience. A man may incur great
moral guilt, not indeed by following his conscience, but by neglecting the
means of rectifying and enlightening it.Its dictates are varied, not only
according to moral constitution, but the intellectual power and extent of
information of the individual. The purer the motive, the more extensive the
knowledge, and the greater the mental ability, the more enlightened will be the
conscience, and the more correct its decisions.
The moral faculty or moral judgment being thus fallible, there may be a
conflict of consciences. Let me present an illustration. A ship arrives with
sick passengers. One class of men insist that the disease is contagious, and
that they shall not be permitted to land and spread a general pestilence.
Another class insist that it is not contagious, and that it would be cruelty to
compel them to remain on ship-board, aggravating [*15] their
sufferings and their danger. With both it is a question of humanity -- of
conscience. Again, certain strangers seek an asylum amongst us. One class of
our citizens see in them only fugitives from oppression, whom we can easily and
securely receive and protect. Another class believe that they bring with them,
not physical but moral contagion, that their presence will endanger the public
peace and individual safety, that it may embroil us with other states, and
bring upon us the sufferings and horrors of external and internal war and
convulsions. The one class urge the obligations of hospitality and benevolence,
the other the obligations of self-preservation, and the sacred duty of
preserving those whom nature and society have committed to their protection.
Both are equally sincere, conscientious, and resolute. Which shall yield? Is
there no appeal but to force? I answer, yes. And the arbiter must be society,
-- organized society, -- pronouncing its decision through its regularly
constituted agents. This is the moral judgment, the embodied conscience, of the
political community.To this not only is each individual bound to submit, but it
is a new and controlling element [*16] in forming his own moral
judgment. An act, which before may have been innocent, is now criminal, and its
commission not only opposed to the will, but subversive of the order, peace,
existence of the political society.
Submission is a moral duty. This is as certain as that the Creator made man a
social being, and designed that he should live, not in perpetual anarchy, but
in peace and security; for human government is the only means which Infinite
Goodness has provided, for preserving us from unceasing conflict and violence.
To submit to the law of the land is, then, to obey the will of God.
It may be asked, is resistance never justifiable? Is there no exception? I
answer, yes! When oppression present and prospective is so great as to justify
a resort to the ultimate right of revolution. But this is not to be done from
impulse or feeling, but from the calm and careful consideration of the dangers
and difficulties of the proposed remedy. A wise man will reflect that evils,
great evils, must exist under every human government; that a perfect fabric
cannot be made of imperfect materials, and that, whatever he may attempt, he
must still work by and with fallible man, with all [*17] his
blindness, weakness and passion. If, after a deliberate contemplation of the
convulsions and miseries attending the overthrow of the existing government,
and the hazards and uncertainties of establishing a better on its ruins, he
firmly believes the permanent happiness of the community requires the attempt,
he may conscientiously make it. Under a despotism, such a case may occur not
unfrequently, but we can hardly suppose it to exist in a republic, where the
laws are made by the people themselves, through agents freely appointed for
short periods, by frequent elections.
In our own country, if there be any, who, contemplating the infirmities of our
nature, the history of our race, what has been accomplished in all ages that
have passed, and what is now the condition of mankind under all other political
institutions, and looking at our own government, its history and its hopes, its
past performance and future promise, can then desire its destruction, in the
vain and desperate hope of establishing a better in its stead, they must be
inaccessible to reason or remonstrance, and of that unfortunate class in whose
minds judgment is dethroned, and monomania hold usurped dominion.