A
FEW SUGGESTIONS
UPON
THE PERSONAL LIBERTY LAW
AND
"SEC E SSION"
(SO CALLED).
IN A LETTER TO A FRIEND.
~
7]       7l/,-',,
BOSTON:
PRINTED BY JOHIN WILSON AND SON,
22,  SCHOOL   STI1EET.
1861.
, f gy  
i,.,,a  w,2,.,  1, 1<~',ajliilRL
GENERAL LIBRARY
Aixi      R   Mt.    ExM
L E T T ER.
MY DEAR SIR, -  In compliance with your suggestion, I venture to put in the form of a letter a few
thoughts upon the subject of our conversation a
few days since. I must write with the pressure of
other duties upon me; but I will not say, without reflection. No thoughtful man, at a time like this, could
have failed to reflect upon the interests of his country, and the duty he owed to it. For brevity's sake, I
must state conclusions rather than arguments. You
wished for my opinions, and I give them frankly.
The first question which honest men are now asking themselves is, What may fairly be required of
us? and the second is, What may we fairly require
of others?
This much may be fairly required of us, citizens of
Massachusetts, -that we should be thoroughly loyal
to the Union, if we mean to preserve it; and faithful to
the Constitution, if we mean to uphold and enforce it.
We cannot, in common.honesty, insist that others shall
do what we are not ready to do ourselves. In this
great controversy, which has already assumed the form 
4
of civil war, there is but one issue to be settled; and
that is, whether the Constitution and laws of the
United States are, and are to be, the supreme law of
the land. Do we mean to accept that issue, and abide
by it, now and hereafter? That is a plain question, to
which we are bound in all frankness to give a plain
answer.  If we say, "Yes, God helping us, we do,"
then our obvious duty, I submit, is to examine ourselves, and, if we have been in error, to correct it. If
there are laws upon our statute-book, which, in the
letter or the spirit, conflict with the Constitution and
laws of the Union, we ought promptly to repeal them.
A word as to the fair mode of looking at these statutes; for every thing depends upon the way of putting
things. It is not to see whether, by any possible ingenuity of construction, they can be held not to violate
the letter of the Constitution or laws of the United
States. There is a mode of testing the constitutionality
of a statute which is offensive to good sense. It is to
overlook its obvious design in the search of some remote possible contingency in which it may be valid; to
emasculate a statute in order to give it validity, take out
the very breath of its life, and then say the body is very
quiet and harmless. Judicial tribunals. must sometimes measure the exact legal force of a penal statute;
weigh it in scales which the weight of a feather may
turn. But these statutes touch the domain of public
law, affect the interests of States; and their validity
will be settled by statesmen and jurists and the people
at large, not by any refinements of construction, but 
5
upon their general and obvious scope, purpose, and
spirit.
A single suggestion as to the proper time for revising these laws. If it is right to revise them, now
is the time.  " Now" is always the seasonable time to
do right.  If the revision can ever do any good, it is
now.  The intimation, that we shall be thought to
have acted under a threat, has no foundation in fact;
nor is it of the least moment if it had.  The man
who fears to do right lest his motives be misconstrued
becomes a coward to avoid being thought one, and
loses his self-respect to win the respect of others.
You have known, my dear sir, that I fully sympathize with the people of Massachusetts in their just
and righteous aversion to the Fugitive-slave Law of
1850.  It was industriously meant to be offensive.   I
have never seen the man in this Commonwealth, who,
whatever his opinion of its validity, did not regard it
as unnecessarily harsh and rigorous. It fails of effect
from its great severity.  Nay, I should go further, and
should not hesitate to say, were I not concluded by
judicial authority, that the law, in many of its essential features, is in conflict with the Constitution of the
United States. Never has a constitutional provision
been so tortured by judicial construction as that clause
in relation to fugitives from service.  But the law has
been held valid by those who had the rightful power
to pass upon its validity; and, as a good citizen, I must
bow to its authority.  MIy oath does not restrict me to
the support of the Constitution "as I understand it." 
6
With these feelings and convictions in relation to
the Fugitive-slave LawN of 1850, I have, nevertheless,
always been of the opinion, that every attempt to soften
the rigor of the law, to supply its defects, to relieve
its injustice, or to obstruct its operation, by State legislation, would be utterly vain and futile. It is only
kicking against the pricks. The wise and prudent
thing would have been, to have waited until we had
power to soften the rigors of the law on the spot of
its origin, in the place of its birth. In that effort we
should have had the aid of wise and good men in all
parts of the country.
We are held in double trust.  We are not only citizens of Massachusetts, but of the United States. Tile
people framed the Constitutions of both.
The government of the United States acts, not
upon the State, nor upon us as citizens of the
State, but upon us as citizens of the United States.
The Constitution of the United States, and the
laws made under it, are our supreme law, -the
supreme law of the land; and the judges in every
State are bound by them, "any thing in the constitution or laws of any State to the contrary notwithstanding." No human ingenuity can contrive a
State law or ordinance which can defeat, or fairly
shield us from, a law of the United States, which the
courts of the United States have declared to be valid.
I speak not of what may be done by indirection, but
of the fair, legitimate effect of the State law. The
greater its apparent strength, the greater would be its 
7
real weakness. These are plain, and, to the legal
mind, obvious truths.
In the light of them, let us look at the statutes of
which complaint is made. I have not the slightest
disposition to exaggerate their faults. I cordially respect the spirit of humanity and the love of the old
common-law muniments of freedom which characterize them.
There is no doubt, also, that, in a legal view, very
undue importance has been attached to them by worthy citizens of other States as well as our own.
In considering these statutes, statesmen even seem
to have lost sight of the distribution of powers under
our written constitutions and firames of government,
and the relation of the judicial to the legislative department. An act of Parliament is a law. An act of
our Legislature may or may not be a law. It is not a
law if held to be invalid by the judicial department;
and it must be so held if in conflict with the Constitution of the State, or the Constitution and laws of
the United States.
Now, there never has been a day or an hour in
Massachusetts, when the arrest of any fugitive from
service has been obstructed by any LAW of Massachusetts; that is, by any statute recognized and enforced
by its judicial tribunals.
May I not be pardoned for saying that there is not
a State in the Union whose judiciary has been more
faithful to the Constitution of the United States than
our own  -  upholding the laws made under that Con 
8
stitution, when God only knew how bitter was the
struggle between the man and the magistrate. By no
law or judicial decree of the Commonwealth have the
rights of any one master, in any one case, been in
the least degree impaired. Nor could they be to-day,
unless we suppose (what the history of the State does
not authorize us to suppose) that the judicial department will be false to its duty.   I am speaking now of
the legal, and not the moral, aspect of the case.
Nor can the Commonwealth be justly said to have
been guilty of any breach of the national "compact,"
if that word can be fitly applied to the Constitution of
the United States. There clearly could be no breach
of the compact by an act of the Legislature which was
not upheld by its judicial and supported by its executive department.
To say that the State of Mfassachusetts has, by her
legislation, broken the Constitution of the United
States, is, with great deference, a contradiction in
terms. As matter of law, the thing is impossible;
for a conflict of the statute of a State with the Constitution or laws of the United States brings the statute directly under the cognizance of the Federal
judiciary, by whose action it is at once shorn of its
power.
The word "compact" is not applicable to the Constitution of the United States. The Constitution is not
a compact between the States, or the people of the
several States.  It is a fr-ame of gove)rnment, ordained
and established by "the people of the United States;" 
9
of limited sphere it may be, but in that sphere su pr)eme. The statute passed by a State Legislature in
conflict with that Constitution is itself broken by the
collision, and not the Constitution, — the hammer,
and not the anvil.
This is not, my dear sir, mere verbal criticism, but
matter of vital principle; for it is, as you well know,
upon the double ground that the Constitution is a
compact which a State is capable in law of breaking,
and that the statutes of Massachusetts and of other
Free States are breaches of the compact, that Southern
statesmen attempt to justify secession.  That Consti tution is not a fragile compact, but an infrangible
government.   If such statutes exist, they are only
futile attempts to do what, by law or ordinance, a
State cannot do, -  abrogate or impair a law paramount to its own. The moment the conflict is seen,
the statute disappears.   There is nothing left but
written or printed words, signifying nothing, effecting
nothing.
If these views are sound, the retention upon our
statute-book of any provisions which tend to obstruct
or defeat the Fugitive-slave Law, or mitigate its rigors,
is an idle ceremony. If they cannot do this, they are
useless; if they can do it, they are void. Before they
can do it, you must omit from the Constitution of the
United States, which you print with your statutes,
these solemn provisions:'This Constitution and the laws of the United
States, which shall be made in pursuance thereof...
2 
10
shall be the supreme law of the land; and the judges
of every State shall be bound thereby, any thing in the
Constitution or laws of any State to the contrary notwithstanding."
"The judicial power (of the United States) shall
extend to all cases, in law or equity, arising under the
Constitution, the laws of the United States, and
treaties made, or which shall be made, under their
authority."
In the examination of our statutes which have rclation to fugitives from service, I have found but one
provision, which, as matter of strict law, appears
to me  to be in conflict with the Constitution and
laws of the United States.   That is in the  19th,
20th, and 21st sects. of chap. 144 of the General Statutes.   If, by the fair construction of these
sections, the court to whom a writ of habeas corpus
is returnable, must or may, when it appears by the
return that the person whose restraint is in question
is claimed as a fiugitive from service, proceed to try
the issues of fact, although it also appears that the
prisoner was in the custody of the marshal of the
United States or his deputy, under a warrant or certificate duly issued, the validity of the provisions
cannot, in my judgment, be maintained; and this,
I think, is the fair, though, I will not say, necessary
construction of these sections.   The ground upon
which they may perhaps be maintained is, that the
custody of the marshal, under the warrant, constitutes
an implied exception to the statute. But, if this con 
11
struction wvere adopted, it is obvious the law would
be of little practical value to the fugitive. It is made
valid by taking from it its effective force in the only
cases likely to arise.
The object of these provisions is to give to the
alleged fugitive from service the trial by jury, which
is not secured by the law of the United States.  If
the provision was valid and effectual, I frankly say, I
would not repeal it: I would rather imbed it in the
Constitution of the Commonwealth. But it is ineffectual under  the law as decided.   No  judge could
enforce it, so as to take the prisoner from the custody
of the marshal, and try the issues of fact, who is
faithful to his duty, and the laws of which he is the
servant.
I cannot assent to the construction of the sixty-secolnd
section of this law, which holds that a person honestly
claiming his slave may be subjected to an ignominious
punishment by a misapprehension or mistake of his
rights, or a failure to maintain them.  Applying to this
section the settled rules of construction for criminal or
penal statutes, such result, I respectfilly submit, cannot be reached. It is the removal of a person from the
Commonwealth who is not held to labor or service, on
"the preteilce" that he is so held to labor or service,
..
or " with the intent to subject him" to labor or service
not due, that is made an offence under the statute.
It is the holding-out of a false claim, a pretence, and
the intent to subject one to service not due, which the
statute punishes.  Yet as jurists, for whom we all have 
12
profound respect, seem to think the statute susceptible of another construction, and as the meaning of
all penal statutes should be as free from doubt as possible, the section should be so amended as to render
it certain that it applies only to claims made in bad
faith, falsely made.
Nor do I understand, that, under the sixty-fourth
and sixty-fifth sections of this statute, the volunteer
militia of the Commonwealth cannot be used to protect the officers of the United States, in the streets
of our towns and cities, from lawless violence. The
volunteer militia are not to act in any manner in "the
seizure, detention, or rendition," of a fugitive from
service; but they may do, nay, more, must do, under
the statutes, exactly what they did in the Burns case,
- preserve, at all hazards, the public peace.
Under the provisions of chap. 164 of the General
Statutes, the militia may be called out by the mayor,
and other officers therein designated, to p)rotect the
peace of the city, in case of any riot, actual or threatened; and, in such event, officers and soldiers are
bound to obey, and are exempted from any penalty
for obedience (chap. 164, Ela vs. Smith, 5 Gray, 121).
I see no ground for supposing that the statutes have
modified the law, stated so clearly in this case by the
present Chief-Justice of the Commonwealth.
But, in giving the legal construction to these sections, are they not divested of their power, and left
of little practical value?  Are not the provisions of
the Personal-liberty Bill of 1855 which remain, so 
13
shorn of their strength, of their legal capacity for
good or evil, that the most sensible thing that can be
done is simply to repeal them? As they stand, and
must be construed, they mock the alleged fugitive
with a false show of protection, with the shadow of a
shield; keeping the word of promise to his ear, but
breaking it to his hope.
The best thing that can be done with the remains
of the statute of 1855 is to lay them upon the altar of
the country. It does not require a great sacrifice;
and it is our country.
Incapable of substantial legal good, they do much
political and moral evil.
They are not, in their spirit, loyal to the Union.
They tend to bring into conflict our relations to the
State and the United States, to which we are alike
bound, and must be alike faithful.
They are unjust to the citizens of the United States,
who feel that they must obey the laws of the United
States, and that the State cannot fairly subject them
to any disability or distrust even for such fidelity.
They disturb the friendly relations which would
otherwise exist between us and the friends of the
Union in the Southern States.
They strengthen the hands, they encourage the
hearts, of the enemies of the Union. They are made
the occasion, if not the cause, the pretence, if not the
reason, for the attempts to sever that Union. They
furnish a pretext, a seeming apology, for treason.
The ground of objection to these statutes is their 
14
,apparent design to obstruct a law of the United
States, - all iron law, it may be, but a law. Their
real and humane purpose was to give to the rilghts of
the feeble and humble the protection which the law
of the United States failed to give.  They can legally
effect neither the apparent design nor their  real
purpose.   And  the difficulty, in my  judgment, is
intrinsic, and results from the fact, that a law of the
United States, held to be valid by the judiciary of
the United States, is the supreme law of the courts
of MIassachusetts; and no State law can either  get
over it or around it.
The only place to seek the modification of the
Fugitive-slave Law is on the floor of Congress; and
we need not despair of such a result. The just
and reasonable modifications to be effected are, that
the alleged ftigitive shall, firom the time of his arrest,
be in the custody of the courts of the United States,
both in the State where he is seized and that to which
he is returned; that, before he shall be delivered
into the custody of the claimant, he shall have the
right to trial by jury, freely and without purchase,
under rules of evidence to be prescribed by C(ongress;
the most essential of which would be the presumption
of freedom, and tlhe right to meet the witnesses against
him face to face.
Ilaving done what may fairly be required of us, we
may inquire what may fairly be required of others.
I hlave already stated the issue before the country.
It must be settled now.  Let us not deceive ourselves. 
15
Let us not disguise the real dangers before us. If
secession is insisted on, civil war is inevitable.
We were Colonies of Gleat  Britain, - separate,
distinct, jealous Colonies. Under the oppression of
the mother-country, we grew and ripened into one
national life.  By the declaration of independence,
the Colonies became, not separate and distinct nations,
but one nation. Under the Continental Congress, the
Revolutionary Government, even under the confederation, the great attributes of sovereignty were in the
Un,ited States, thirteen States, one nation,-  E pluribus
ulium.
"To all general purposes" (says MIr. Jay in the
"Federalist"), "we have uniformly been one people;
each individual citizen everywhere enjoying the same
national rights, privileges, and protection. As a nation,
we have made peace and war; as a nation, we have
vanquished our common enemies;  as a nation, we
have formed alliances and made treaties, alid entered
into various compacts and conventions with foreign
States" (" Federalist," No. 2).
The "people of the United States, to form a more
perfect union, to establish justice, insure domestic tranquillity, provide for the common defence, promote
the general welfare, and secure the blessings of liberty
to themselves and their posterity," ordained and established the Constitution of the United States. They
established a government, with no provision for its
termination, without limitation of time, for themselves
and their posterit, -a government clothed with spe 
16
cific powers, but in its sphere supreme. There is no
clause or word in the Constitution which looks to separation. The government established by the Constitution is a perpetual government, with provisions for its
amendment, none for its destruction; with a door for
new States to come in, but none for old ones to go
out.
You may recollect, that in the Convention of the
people of New York, called to act upon the adop tion of the Constitution, Mr. Lansing moved to annex
to the ratification a reservation of the right of
New York to withdraw from the Union within a certain number of years, if the amendments proposed by
the New-York Convention were not adopted.  Hamilton declared the reservation was inconsistent with the
Constitution, and would not be a ratification. He
wrote to Madison for his opinion upon the possibility
of the State being received on that plan. Madison
wvrote, that the adoption, with reservation of a right to
withdraw, would not make New York a member of
the Union, and that she could not be received on that
basis.  "The Constitution requires an adoption in toto
and for ever."
South Carolina has, it is said, seceded. It is quite
plain, from the discussions of the Convention, that
there is no man in her borders that knows what
secession means, or what South Carolina is after
secession. If she is the nation of South Carolina,
can any one tell us when and by what process she
became so? She had not, before the Constitution was
'I 
4
adopted, the attributes of a nation.   Has she ac quired them while under the Constitution, while
every strictly national function has been exercised by
a government paramount to her own?  The people of
this country are not to be beguiled by words: they
will look at things. Secession has no legal meaning.
It is but another name for rebellion or revolution:
whether rebellion or revolution, must depend upon its
success or failure. If it be any thing, it is but a pro cess by which a State may forego all the privileges of
the Union, leaving her people still liable to all its
obligations and duties.
No provision of the Constitution, no law of the
United States, is abrogated or affected by the "Ordinance" of South Carolina.  No citizen (f the United
States in South Carolina is exempted from any the
least of his duties under the Constitution and laws of
the United States. The Constitution and laws of the
United States act directly upon him, and not through
the State upon him. They are the supreme law;
and the act of the State, ordinance, or statute, which
conflicts with that supreme law, shrivels into a nullity. To attempt to defeat it by a resolution is
folly To attempt to defeat the National Government
by organized resistance, by force of arms, is treason.
To kill an officer of the United States when in the
discharge of his legal duty is murder. This is plain
language: we cannot afford to use any other. Secession is rebellion, without the manliness that should
attend it.  It is an attempt to get by legal craft
3
17 
18
what can only be got by force of arms. The Constitution and Union are not to be shot down by paper
bullets; and they are not statesmen who think so.
Utterly denying the existence of any right of
secession, I think, with Henry Clay, "that the attempt to exercise it ought to be resisted to the last
extremity."
If the Constitution is a compact which every State
is capable of breaking, whose obligations every State
may throw off at its pleasure, it is not worth preserving.  We believe it, the great mass of the people
of this country believe it to be a wiser, better, nobler
thing, a frame of government capable of amendment in the mode itself provides; capable of being
overthrown only by revolution, only by success.ul
revolution. Men may, it is true, for just cause, by
revolution, change or overthrow government. It is
also true, that men may maintain and uphold government for just cause; and it is just cause when their
only rational hopes of peace, of security, and of wellregulated liberty, for themselves and their children,
are bound up with it. I am very sorry there are not
other ways to vindicate the Constitution and the laws
but by force of arms; but I see no way of meeting
force but by force. If men tear down from the fort
of my country the flag of my country, I honestly believe that you and I have a right to help restore it if
we can, - to give it again to the breeze, with all its
stripes and all its stars.
The duty of maintaining just government is as
i 
19
sacred and binding as that of maintaining our hearths
and altars: it is the same thing.
If it be said that it will be impossible to maintain
the Union if other States secede, the plain answer
is, If it be impossible, our duty is at end.   But
I do not believe it impossible.   Upon the simple
issue, whether the laws of the Union are to be
maintained, and its flag upheld, nine-tenths of the
freemen of this country are with us.   The opinion
of the civilized world is with us.  Moreover, God
governs in the affairs of men, and will be with us
as he was with our fathers.
There is a sensibility, which borders on fear, on this
question of resort to force. Freedom is a blessing:
license is not. Government is a necessity: a firm,
vigorous government is a necessity.  "Influence is
not government" (Washington.) That only is government which can command obedience and enforce it.
The existence of society and of social order is possible
on no other theory.
But what, you may ask, is the duty of the National
Government, after such an ordinance has been passed?
The general answer is obvious: What it was before it
was passed, - to enforce in every part of the Union,
South Carolina included, the Constitution and laws of
the United States.  The National Government can
never know of such a thing as secession.  She has no
legal capacity to hear or comprehend it. She can
know of rebellion, and must govern herself accordingly. 
20
But what is practicable and reasonable in such an
exigency? All possible and long-suffering forbearance consistent with the execution of the laws. But
the revenue may and must be collected. No vessel
can enter or leave ports of the United States but in
conformity to the laws. In places where the United
States have exclusive jurisdiction by the cession of the
State, the jurisdiction must be maintained.
But this will result in civil war. That war is already begun. No man loves peace more than I do;
but I say deliberately, war, even civil war, is better
than to give up this glorious inheritance from our
fathers, the noblest government on earth, without a
struggle, or to leave the struggle, that belongs to us,
to our children. I see no reasonable hope jor peace
but within the pale of the Constitution as it is, and in
obedience to its mandates.
I have no hope in savi,ig the Union by amending
the Constitution. The powers of the National Government over every matter in dispute are ample. My
only hope is in the moderate, firm, just, and equitable
administration of the Constitution as it is. If we sever
in peace, not many years will elapse before we shall
have war. Slavery will create greater causes of difference and strife after separation than now.  Demands will be made  by the Slave States for the
extradition of fugitives from service: the Free States
will never consent.  They will make discriminating
duties against us: the Free States will not submit.
The Slave States will re-open the African slave-trade: 
6
21
we shall, ere long, unite with all Christian States to
exterminate the traffic, - to sweep it from the highway of nations.
I am, you well know, no partisan; and have had no
connection with party politics for many years. Upon
full consideration of my duty in that regard, I voted
for Abraham Lincoln. I have no misgiving about
that vote.   In view of all that has taken place, I
would give it to him to-morrow with alacrity. If he
pursues the wise, moderate, and national course and
policy which his past life and opinions and his firm
and manly character lead me to expect, he will have
my loyal, unwavering support in the execution of his
great, and, at this crisis, solemn and momentous duty,
-that of executing in every part of this indivisible
republic the Constitution and laws of our yet glorious
Union. I feel, that, in my humble sphere, I can do
him no better service than to do what I may to remove
all stumbling-blocks from his path. These statutes
are among them.
Hoping for better things, seeking, in all the honorable ways of peace, the adjustment of our present difficulties, we ought to prepare for the worst.  "Faint
hearts are usually false hearts." For our country, for
our children, for the cause of well-regulated liberty,
we have no right to do or suffer less than our fathers.
It cost seven years of suffering to secure these blessings.
Seven years, if need be,-will be wisely spent in the struggle to maintain them. To suppose that the people of
the Free States will consent to give up such a govern 
'22
ment, and the infinite blessings it secures to the country,
without a struggle, is the saddest of mistakes. This government is a great and sacred trust. We shall be
false to country, to freedom, to humanity, if we consent to give it up till the struggle is seen to be utterly
hopeless.
Very truly your friend,
BENJ. F. THOMAS.
BOSTON, Jan. 1, 1861.