Rosenfeld Susan. Encyclopedia of American Historical Documents

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remote from Africa. We have a particular account, that all

the sons of Canaan settled in the land of Canaan; as may

be seen in Gen. x. 15–20. “And Canaan begat Sidon his

“first born, and Heth, and the Jebusite, and the “Emorite,

and the Girgasite, and the Hivite, and “the Arkite, and the

Sinite, and the Arvadite, and “the Zemorite, and the

Hamathite; and afterward “were the families of the

Canaanites spread abroad. “And the border of the Canaan-

ites was from Sidon, “as thou goest to Gerar, unto Gaza; as

thou goest “unto Sodom and Gomorrah, Admah, and

Zeboim, “even unto Lashah.”—Nor have we account that

any of their posterity except the Carthaginians afterward

removed to any part of Africa: and none will pretend that

these peopled Africa in general; especially considering,

that they were subdued, destroyed and so far extirpated by

the Romans.

This curse then of the posterity of Canaan, had no ref-

erence to the inhabitants of Guinea, or of Africa in general;

but was fulfilled partly in Joshua’s time, in the reduction

and servitude of the Canaanites, and especially of the

Gibeonites; partly by what the Phenicians suffered from

the Chaldeans, Persians and Greeks; and finally by what

the Carthagenians suffered from the Romans.

Therefore this curse gives us no right to enslave the

Africans, as we do by the slave-trade, because it has no

respect to the Africans whom we enslave. Nor if it had

respected them, would it have given any such right;

because it was not an institution of slavery, but a mere

prophecy of it. And from this prophecy we have no more

ground to infer the right of slavery, than we have from the

prophecy of the destruction of Jerusalem by Nebuchad-

nezzar, or by the Romans, to infer their right respectively

to destroy it in the manner they did; or from other prophe-

cies to infer the right of Judas to betray his master, or of

the Jews to crucify him.

2. The right of slavery is inferred from the instance of

Abraham, who had servants born in his house and bought

with his money.—But it is by no means certain, that these

were slaves, as our Negroes are. If they were, it is unac-

countable, that he went out at the head of an army of them

to fight his enemies. No West-India planter would easily be

induced to venture himself in such a situation. It is far

more probable, that similar to some of the vassals under

the feudal constitution, the servants of Abraham were only

in a good measure dependent on him, and protected by

him. But if they were to all intents and purposes slaves,

Abraham’s holding of them will no more prove the right of

slavery, than his going in to Hagar, will prove it right for any

man to indulge in criminal intercourse with his domestic.

3. From the divine permission given the Israelites to

buy servants of the nations round about them, it is argued,

that we have a right to buy the Africans and hold them in

slavery. See Lev. xxv. 44–47.

“Both thy bondmen and thy bondmaids, which thou

shalt have, shall be of the heathen that are round about

you; of them shall ye buy bondmen and bondmaids. More-

over, of the children of the strangers that do sojourn

among you, of them shall ye buy, and of their families, that

are with you, which they begat in your land; and they shall

be your possession. And ye shall take them as an inheri-

tance for your children after you, to inherit them for a pos-

session; they shall be your bondmen for ever : but over

your brethren the children of Israel ye shall not rule one

over another with rigour.” But if this be at all to the pur-

pose, it is a permission to every nation under heaven to buy

slaves of the nations round about them; to us, to buy of our

Indian neighbours; to them, to buy of us; to the French, to

buy of the English, and to the English to buy of the

French; and so through the world. If then this argument

be valid, every man has an entire right to engage in this

trade, and to buy and sell any other man of another nation,

and any other man of another nation has an entire right to

buy and sell him. Thus according to this construction, we

have in Lev. xxv. 43, &c. an institution of an universal slave-

trade, by which every man may not only become a mer-

chant, but may rightfully become the merchandise itself of

this trade, and may be bought and sold like a beast.—Now

this consequence will be given up as absurd, and therefore

also the construction of scripture from which it follows,

must be given up. Yet it is presumed, that there is no avoid-

ing that construction or the absurdity flowing from it, but

by admitting, that this permission to the Israelites to buy

slaves has no respect to us, but was in the same manner

peculiar to them, as the permission and command to sub-

due, destroy and extirpate the whole Canaanitish nation;

and therefore no more gives countenance to African slav-

ery, than the command to extirpate the Canaanites, gives

countenance to the extirpation of any nation in these days,

by an universal slaughter of men and women, young men

and maidens, infants and sucklings.

4. It is further pleaded, that there were slaves in the

time of the apostles; that they did not forbid the holding of

those slaves, but gave directions to servants, doubtless

referring to the servants of that day, to obey their masters,

and count them worthy of all honour.

To this the answer is, that the apostles teach the gen-

teral duties of servants who are righteously in the state of

servitude, as many are or may be, by hire, by indenture,

and by judgment of a civil court. But they do not say,

whether the servants in general of that day were justly

holden in slavery or not. In like manner they lay down the

general rules of obedience to civil magistrates, without

deciding concerning the characters of the magistrates of

the Roman empire in the reign of Nero. And as the apos-

tle Paul requires masters to give their servants that which

is just and equal, (Col. iv. i.) so if any were enslaved

392 ERA 3: Revolution and New Nation

unjustly, of course he in this text requires of the masters of

such, to give them their freedom.—Thus the apostles treat

the slavery of that day in the same manner that they treat

the civil government; and say nothing more in favour of the

former, than they say in favour of the latter.

Besides, this argument from the slavery prevailing in

the days of the apostles, if it prove any thing, proves too

much, and so confutes itself. It proves, that we may enslave

all captives taken in war, of any nation, and in any the most

unjust war, such as the wars of the Romans, which were

generally undertaken from the motives of ambition or

avarice. On the ground of this argument we had a right to

enslave the prisoners, whom we, during the late war, took

from the British army; and they had the same right to

enslave those whom they took from us; and so with respect

to all other nations.

5. It is strongly urged, that the Negroes brought from

Africa are all captives of war, and therefore are justly

bought and holden in slavery.—This is a principal argu-

ment always urged by the advocates for slavery; and in a

solemn debate on this subject, it hath been strongly

insisted on, very lately in the British parliament. Therefore

it requires our particular attention.

Captives in a war just on their part, cannot be justly

enslaved; nor is this pretended. Therefore the captives

who may be justly enslaved, must be taken in a war unjust

on their part. But even on the supposition, that captives in

such a war may be justly enslaved, it will not follow, that we

can justly carry on the slave trade, as it is commonly car-

ried on from the African coast. In this trade any slaves are

purchased, who are offered for sale, whether justly or

unjustly enslaved. No enquiry is made whether they were

captives in any war; much less, whether they were capti-

vated in a war unjust on their part.

By the most authentic accounts, it appears, that the

wars in general in Africa are excited by the prospect of gain

from the sale of the captives of the war. Therefore those

taken by the assailants in such wars, cannot be justly

enslaved. Beside these, many are kidnapped by those of

neighbouring nations; some by their own neighbours; and

some by their kings or his agents; others for debt or some

trifling crime are condemned to perpetual slavery-But

none of these are justly enslaved. And the traders make no

enquiry concerning the mode or occasion of their first

enslavement. They buy all that are offerred, provided they

like them and the price.—So that the plea, that the African

slaves are captives in war, is entirely insufficient to justify

the slave trade as now carried on.

But this is not all; if it were ever so true, that all the

Negroes exported from Africa were captives in war, and

that they were taken in a war unjust on their part; still they

could not be justly enslaved.—We have no right to enslave

a private foe in a state of nature, after he is conquered.

Suppose in a state of nature one man rises against another

and endeavours to kill him; in this case the person

assaulted has no right to kill the assailant, unless it be nec-

essary to preserve his own life. But in wars between

nations, one nation may no doubt secure itself against

another, by other means than slavery of its captives. If a

nation be victorious in the war, it may exact some towns or

a district of country, by way of caution; or it may impose a

fine to deter from future injuries. If the nation be not vic-

torious, it will do no good to enslave the captives whom it

has taken. It will provoke the victors, and foolishly excite

vengeance which cannot be repelled.

Or if neither nation be decidedly victorious, to enslave

the captives on either side can answer no good purpose,

but must at least occasion the enslaving of the citizens of

the other nation, who are now, or in future may be in a

state of captivity. Such a practice therefore necessarily

tends to evil and not good. Besides; captives in war are

generally common soldiers or common citizens; and they

are generally ignorant of the true cause or causes of the

war, and are by their superiours made to believe, that the

war is entirely just on their part. Or if this be not the case,

they may by force be compelled to serve in a war which

they know to be unjust. In either of these cases they do not

deserve to be condemned to perpetual slavery. To inflict

perpetual slavery on these private soldiers and citizens is

manifestly not to do, as we would wish that men should do

to us. If we were taken in a war unjust on our part, we

should not think it right to be condemned to perpetual

slavery. No more right is it for us to condemn and hold in

perpetual slavery others, who are in the same situation.

6. It is argued, that as the Africans in their own coun-

try, previously to the purchase of them by the African

traders, are captives in war; if they were not bought up by

those traders, they would be put to death: that therefore to

purchase them and to subject them to slavery instead of

death, is an act of mercy not only lawful, but meritorious.

If the case were indeed so as is now represented, the

purchase of the Negroes would be no more meritorious,

than the act of a man, who, if we were taken by the Alger-

ines, should purchase us out of that slavery. This would

indeed be an act of benevolence, if the purchaser should

set us at liberty. But it is no act of benevolence to buy a

man out of one state into another no better. Nay, the act of

ransoming a man from death gives no right to the ran-

somer to commit a crime or an act of injustice to the per-

son ransomed. The person ransomed is doubtless

obligated according to his ability to satisfy the ransomer for

his expence and trouble. Yet the ransomer has no more

right to enslave the other, than the man who saves the life

of another who was about to be killed by a robber or an

assassin, has a right to enslave him.—The liberty of a man

for life is a far greater good, than the property paid for a

Formation of the New Government 393

Negro on the African coast. And to deprive a man of an

immensely greater good, in order to recover one

immensely, is an immense injury and crime.

7. As to the pretence, that to prohibit or lay aside this

trade, would be hurtful to our commerce; it is sufficient to

ask, whether on the supposition, that it were advantageous

to the commerce of Great-Britain to send her ships to

these states, and transport us into that perpetual slavery in

the West Indies, it would be right that she should go into

trade.

8. That to prohibit the slave trade would infringe on

the property of those, who have expended large sums to

carry on that trade, or of those who wish to purchase the

slaves for their plantations, hath also been urged as an

argument in favour of the trade.—But the same argument

would prove, that if the skins and teeth of the Negroes

were as valuable articles of commerce as furs and ele-

phant’s teeth, and a merchant were to lay out his property

in this commerce, he ought by no means to be obstructed

therein.

9. But others will carry on the trade, if we do not.-So

others will rob, steal and murder, if we do not.

10. It is said, that some men are intended by nature to

be slaves.—If this mean, that the author of nature has

given some men a licence, to enslave others; this is denied

and proof is demanded. If it mean, that God hath made

some of capacities inferior to others, and that the last have

a right to enslave the first; this argument will prove, that

some of the citizens of every country, have a right to

enslave other citizens of the same country; nay, that some

have a right to enslave their own brothers and sisters.—

But if this argument mean, that God in his providence suf-

fers some men to be enslaved, and that this proves, that

from the beginning he intended they should be enslaved,

and made them with this intention; the answer is, that in

like manner he suffers some men to be murdered, and in

this sense, he intended and made them to be murdered.

Yet no man in his senses will hence argue the lawfulness of

murder.

11. It is further pretended, that no other men, than

Negroes, can endure labour in the hot climates of the West

Indies and the southern states.—But does this appear to

be fact? In all other climates, the labouring people are the

most healthy. And I confess I have not yet seen evidence,

but that those who have been accustomed to labour and

are inured to those climates, can bear labour there also.—

However, taking for granted the fact asserted in this objec-

tion, does it follow, that the inhabitants of those countries

have a right to enslave the Africans to labour for them? No

more surely than from the circumstance, that you are fee-

ble and cannot labour, it follows, that you have a right to

enslave your robust neighbour. As in all other cases, the

feeble and those who choose not to labour, and yet wish to

have their lands cultivated, are necessitated to hire the

robust to labour for them; so no reason can be given, why

the inhabitants of hot climates should not either perform

their own labour, or hire those who can perform it,

whether Negroes or others.

If our traders went to the coast of Africa to murder the

inhabitants, or to rob them of their property, all would own

that such murderous or piratical practices are wicked and

abominable. Now it is as really wicked to rob a man of his

liberty, as to rob him of his life; and it is much more

wicked, than to rob him of his property. All men agree to

condemn highway robbery. And the slave-trade is as much

a greater wickedness than highway robbery, as liberty is

more valuable than property. How strange is it then, that

in the same nation highway robbery should be punished

with death, and the slave-trade be encourage by national

authority.

We all dread political slavery, or subjection to the arbi-

trary power of a king or of any man or men not deriving

their authority from the people. Yet such a state is incon-

ceivably preferable to the slavery of the Negroes. Suppose

that in the late war we had been subdued by Great-Britain;

we should have been taxed without our consent. But these

taxes would have amounted to but a small part of our prop-

erty. Whereas the Negroes are deprived of all their prop-

erty; no part of their earnings is their own; the whole is

their masters.-In a conquered state we should have been at

liberty to dispose of ourselves and of our property in most

cases, as we should choose. We should have been free to

live in this or that town or place; in any part of the country,

or to remove out of the country; to apply to this or that

business; to labour or not; and excepting a sufficiency for

the taxes, to dispose of the fruit of our labour to our own

benefit, or that of our children, or of any other person. But

the unhappy Negroes in slavery can do none of these

things. They must do what they are commanded and as

much as they are commanded, on pain of the lash. They

must live where they are placed, and must confine them-

selves to that spot, on pain of death.

So that Great-Britain in her late attempt to enslave

America, committed a very small crime indeed in compar-

ison with the crime of those who enslave the Africans.

The arguments which have been urged against the

slave-trade, are with little variation applicable to the hold-

ing of slaves. He who holds a slave, continues to deprive

him of that liberty, which was taken from him on the coast

of Africa. And if it were wrong to deprive him of it in the

first instance, why not in the second? If this be true, no

man hath a better right to retain his Negro in slavery, than

he had to take him from from his native African shores.

And every man who cannot show, that his Negro hath by

his voluntary conduct forfeited his liberty, is obligated

immediately to manumit him. Undoubtedly we should

394 ERA 3: Revolution and New Nation

think so, were we holden in the same slavery in which the

Negroes are: And our text required us to do to others, as

we would that they should do to us.

To hold a slave, who has a right to his liberty, is not

only a real crime, but a very great one. Many good chris-

tians have wondered how Abraham, the father of the faith-

ful, could take Hagar to his bed; and how Sarah, celebrated

as an holy woman, could consent to this transaction: Also,

how David and Solomon could have so many wives and

concubines, and yet be real saints. Let such inquire how it

is possible, that our fathers and men now alive, universally

reputed pious, should hold Negro slaves, and yet be the

subjects of real piety? And whether to reduce a man, who

hath the same right to liberty as any other man, to a state

of absolute slavery, or to hold him in that state, be not as

great a crime as concubinage or fornication. I presume it

will not be denied, that to commit theft or robbery every

day of a man’s life, is as great a sin as to commit fornication

in one instance. But to steal a man or to rob him of his lib-

erty is a greater sin, than to steal his property, or to take it

by violence. And to hold a man in a state of slavery, who

has a right to his liberty, is to be every day guilty of robbing

him of his liberty, or of manstealing. The consequence is

inevitable, that other things being the same, to hold a

Negro slave, unless he have forfeited his liberty, is a

greater sin in the sight of God, than concubinage or forni-

cation.

Does this conclusion seem strange to any of you? Let

me entreat you to weigh it candidly before you reject it.

You will not deny, that liberty is more valuable than prop-

erty; and that it is a greater sin to deprive a man of his

whole liberty during life, than to deprive him of his whole

property; or that manstealing is a greater crime than rob-

bery. Nor will you deny, that to hold in slavery a man who

was stolen, is substantially the same crime as to steal him.

These principles being undeniable, I leave it to your-

selves to draw the plain and necessary consequence. And if

your consciences shall, in spite of all opposition, tell you,

that while you hold your Negroes in slavery, you do wrong,

exceedingly wrong; that you do not, as you would that men

should do to you; that you commit sin in the sight of God;

that you daily violate the plain rights of mankind, and that

in a higher degree, than if you committed theft or robbery;

let me beseech you not to stifle this conviction, but attend

to it and act accordingly; lest you add to your former guilt,

that of sinning against the light of truth, and of your own

consciences.

To convince yourselves, that your information being

the same, to hold a Negro slave is a greater sin than forni-

cation, theft or robbery, you need only bring the matter

home to yourselves. I am willing to appeal to your own

consciences, whether you would not judge it to be a

greater sin for a man to hold you or your child during life

in such slavery, as that of the Negroes, than for him to

indulge in one instance of licentious conduct or in one

instance to steal or rob. Let conscience speak, and I will

submit to its decision.

This question seems to be clearly decided by revela-

tion. Exod. xxi. 16. “He that stealeth a man “and selleth

him, or if he be found in his hand, “he shall surely be put

to death.” Thus death is, by the divine express declaration,

the punishment due to the crime of man-stealing. But

death is not the punishment declared by God to be due to

fornication theft or robbery in common cases. Therefore

we have the divine authority to assert, that manstealing is

a greater crime than fornication, theft or robbery. Now to

hold in slavery a man who has a right to liberty, is substan-

tially the same crime as to deprive him of his liberty. And

to deprive of liberty and reduce to slavery, a man who has

a right to liberty, is man-stealing. For it is immaterial

whether he be taken and reduced to slavery clandestinely

or by open violence. Therefore if the Negroes have a right

to liberty, to hold them in slavery is man-stealing, which we

have seen is, by God himself, declared to be a greater

crime than fornication, theft or robbery.

Perhaps, though this truth be clearly demonstrable

both from reason and revelation, you scarcely dare receive

it, because it seems to bear hardly on the characters of our

pious fathers, who held slaves. But they did it ignorantly

and in unbelief of the truth; as Abraham, Jacob, David and

Solomon were ignorant, that polygamy or concubinage was

wrong. As to domestic slavery our fathers lived in a time of

ignorance which God winked at; but now he commandeth

all men every where to repent of this wickedness, and to

break off this sin by righteousness, and this iniquity by

shewing mercy to the poor, if it may be a lengthening out

of their tranquillity . You therefore to whom the present

blaze of light as to this subject has reached, cannot sin at

so cheap a rate as our fathers.

But methinks I hear some say, I have bought my

Negro; I have paid a large sum for him; I cannot lose this

sum, and therefore I cannot manumit him.—Alas! this is

hitting the nail on the head . This brings into view the true

cause which makes it so difficult to convince men of what

is right in this case—You recollect the story of Amaziah’s

hiring an hundred thousand men of Israel, for an hundred

talents, to assist him against the Edomites; and that when

by the word of the Lord, he was forbidden to take those

hired men with him to the war, he cried out, “But what

shall we do for the hundred talents, “which I have given to

the army of Israel?” In this case, the answer of God was,

“The Lord is “able to give thee much more than this.”—To

apply this to the subject before us, God is able to give thee

much more than thou shalt lose by manumitting thy slave.

You may plead, that you use your slave well; you are

not cruel to him, but feed and clothe him comfortably, &c.

Formation of the New Government 395

Still every day you rob him of a most valuable and impor-

tant right. And a highway-man, who robs a man of his

money in the most easy and complaisant manner, is still a

robber; and murder may be effected in a manner the least

cruel and tormenting; still it is murder.

Having now taken that view of our subject, which was

proposed, we may in reflection see abundant reason to

acquiesce in the institution of this society. If the slave-

trade be unjust, and as gross a violation of the rights of

mankind, as would be, if the Africans should transport us

into perpetual slavery in Africa; to unite our influence

against it, is a duty which we owe to mankind, to ourselves

and to God too. It is but doing as we would that men

should do to us.—Nor is it enough that we have formed

the society; we must do the duties of it. The first of these

is to put an end to the slave-trade. The second is to relieve

those who, contrary to the laws of the country, are holden

in bondage. Another is to defend those in their remaining

legal and natural rights, who are by law holden in

bondage. Another and not the least important object of

this society, I conceive to be, to increase and disperse the

light of truth with respect to the subject of African slav-

ery, and so prepare the way for its total abolition. For

until men in general are convinced of the injustice of

the trade and of the slavery itself, comparatively little can

be done to effect the most important purposes of the

institution.

It is not to be doubted, that the trade is even now car-

ried on from this state. Vessels are from time to time fitted

out for the coast of Africa, to transport the Negroes to the

West-Indies and other parts. Nor will an end be put to this

trade, without vigilance and strenuous exertion on the part

of this society, or other friends of humanity, nor without a

patient enduring of the opposition and odium of all who

are concerned in it, of their friends and of all who are of

the opinion that it is justifiable. Among these we are

doubtless to reckon some of large property and consider-

able influence. And if the laws and customs of the country

equally allowed of it, many, and perhaps as many as now

plead for the right of the African slave-trade, would plead

for the right of kidnapping us, the citizens of the United

States, and of selling us into perpetual slavery.—If then we

dare not incur the displeasure of such men, we may as well

dissolve the society, and leave the slave-trade to be carried

on, and the Negroes to be kidnapped, and though free in

this state, to be sold into perpetual slavery in distant parts,

at the pleasure of any man, who wishes to make gain by

such abominable practices.

Though we must expect opposition, yet if we be steady

and persevering, we need not fear, that we shall fail of suc-

cess. The advantages, which the cause has already gained,

are many and great. Thirty years ago scarcely a man in this

country thought either the slave-trade or the slavery of

Negroes to be wrong. But now how many and able advo-

cates in private life, in our legislatures, in Congress, have

appeared and have openly and irrefragably pleaded the

rights of humanity in this as well as other instances? Nay

the great body of the people from New-Hampshire to Vir-

ginia inclusively, have obtained such light, that in all those

states the further importation of slaves is prohibited by law.

And in Massachusetts and New-Hampshire, slavery is

totally abolished.

Nor is the light concerning this subject confined to

America. It hath appeared with great clearness in France,

and produced remarkable effects in the National Assem-

bly. It hath also shone in bright beams in Great-Britain. It

flashes with splendour in the writings of Clarkson and in

the proceedings of several societies formed to abolish the

slave-trade. Nor hath it been possible to shut it out of the

British parliament. This light is still increasing, and in time

will effect a total revolution. And if we judge of the future

by the past, within fifty years from this time, it will be as

shameful for a man to hold a Negro slave, as to be guilty of

common robbery or theft. But it is our duty to remove the

obstacles which intercept the rays of this light, that it may

reach not only public bodies, but every individual. And

when it shall have obtained a general spread, shall have

dispelled all darkness, and slavery shall be no more; it will

be an honour to be recorded in history, as a society which

was formed, and which exerted itself with vigour and

fidelity, to bring about an event so necessary and con-

ducive to the interests of humanity and virtue, to the sup-

port of the rights and to the advancement of the happiness

of mankind.

Source:

Library of Congress, Rare Book and Special Collections Division,

Daniel A. P. Murray Pamphlets Collection.

Fugitive Slave Law of 1793

Federal legislation enacted on February 12, 1793, providing

for the seizure and return, from one state to another, of

escaped slaves in the United States. The act authorized the

owner or the owner’s agent to arrest a runaway in any state

and gave federal and state judges the authority to determine

whether the fugitive owed the service claimed, based on oral

testimony or an affidavit. No jury trial was required to return a

fugitive to the state or territory he or she had fled. Any person

who harbored a fugitive or obstructed the arrest was liable for

a fine of $500. The act was loosely enforced in the North, and

it was countered by the Underground Railroad (a network to

help escaping slaves). The controversial Fugitive Slave Act of

1850 put a heavier burden on free states to return slaves. Both

acts were repealed in 1864.

396 ERA 3: Revolution and New Nation

________________________

_______________________

An Act

Respecting fugitives from justice, and persons escaping

from the service of their masters.

Section 1. Be it enacted by the Senate and House of

Representatives of the United States of America in

Congress assembled, That whenever the executive author-

ity of any state in the Union, or either of the territories

northwest or south of the river Ohio, shall demand any

person as a fugitive from justice, of the executive authority

of any such state or territory to which such person shall

have fled, and shall moreover produce the copy of an

indictment found, or an affidavit made before a magistrate

of any state or territory as aforesaid, charging the person so

demanded, with having committed treason, felony or other

crime, certified as authentic by the governor or chief mag-

istrate of the state or territory from whence the person so

charged fled, it shall be the duty of the executive authority

of the state or territory to which such person shall have

fled, to cause him or her to be arrested and secured, and

notice of the arrest to be given to the executive authority

making such demand, or to the agent of such authority

appointed to receive the fugitive, and to cause the fugitive

to be delivered to such agent when he shall appear: But if

no such agent shall appear within six months from the time

of the arrest, the prisoner may be discharged. And all costs

or expenses incurred in the apprehending, securing, and

transmitting such fugitive to the state or territory making

such demand, shall be paid by such state or territory.

Sec. 2. And be it further enacted, That any agent,

appointed as aforesaid, who shall receive the fugitive into

his custody, shall be empowered to transport him or her to

the state or territory from which he or she shall have fled.

And if any person or persons shall by force set at liberty, or

rescue the fugitive from such agent while transporting, as

aforesaid, the person or persons so offending shall, on con-

viction, be fined not exceeding five hundred dollars, and

be imprisoned not exceeding one year.

Sec. 3. And be it also enacted, That when a person

held to labour in any of the United States, or in either of

the territories on the northwest or south of the river Ohio,

under the laws thereof, shall escape into any other of the

said states or territory, the person to whom such labour or

service may be due, his agent or attorney, is hereby

empowered to seize or arrest such fugitive from labour,

and to take him or her before any judge of the circuit or

district courts of the United States, residing or being

within the state, or before any magistrate of a county, city

or town corporate, wherein such seizure or arrest shall be

made, and upon proof to the satisfaction of such judge or

magistrate, either by oral testimony or affidavit taken

before and certified by a magistrate of any such state or

territory, that the person so seized or arrested, doth, under

the laws of the state or territory from which he or she fled,

owe service or labour to the person claiming him or her, it

shall be the duty of such judge or magistrate to give a cer-

tificate thereof to such claimant, his agent or attorney,

which shall be sufficient warrant for removing the said

fugitive from labour, to the state or territory from which he

or she fled.

Sec. 4. And be it further enacted, That any person who

shall knowingly and willingly obstruct or hinder such

claimant, his agent or attorney in so seizing or arresting

such fugitive from labour, or shall rescue such fugitive

from such claimant, his agent or attorney when so arrested

pursuant to the authority herein given or declared; or shall

harbor or conceal such person after notice that he or she

was a fugitive from labour, as aforesaid, shall, for either of

the said offences, forfeit and pay the sum of five hundred

dollars. Which penalty may be recovered by and for the

benefit of such claimant, by action of debt, in any court

proper to try the same; saving moreover to the person

claiming such labour or service, his right of action for or on

account of the said injuries or either of them.

See also

FUGITIVE SLAVE ACT OF

1850.

Source:

Statutes at Large of the United States of America, 1789–1873. 17

vols. Washington, D.C. 1850–73. Vol. 1, pp. 302–305.

Chisholm v. Georgia, 1793

U.S. Supreme Court decision of February 18, 1793, upholding

the right of citizens of one state to sue another state in federal

courts. Citizens of South Carolina who were the heirs of

Alexander Chisholm, a Loyalist whose property had been con-

fiscated by the state of Georgia during the American Revolu-

tion (1775–83), sued that state for compensation. Georgia

denied the Supreme Court’s jurisdiction and refused to appear.

The Court ruled in favor of Chisholm. State protests against the

decision led to passage of the Eleventh Amendment (ratified in

1798), denying federal jurisdiction in suits by a citizen of one

state against another state.

________________________

_______________________

Chisholm, Executor, v. Georgia

The Court held the case under advisement, from the 5th

to the 18th of February, when they delivered their opin-

ions seriatim.

Iredell, Justice.—This great cause comes before the

court, on a motion made by the attorney-general, that an

order be made by the court to the following effect: “That

unless the state of Georgia shall, after reasonable notice of

Formation of the New Government 397

this motion, cause an appearance to be entered on behalf

of the said state, on the fourth day of next term, or show

cause to the contrary, judgment shall be entered for the

plaintiff, and a writ of inquiry shall be awarded.” Before

such an order be made, it is proper that this court should

be satisfied it hath cognisance of the suit; for, to be sure,

we ought not to enter a conditional judgment (which this

would be), in a case where we were not fully persuaded we

had authority to do so.

This is the first instance wherein the important ques-

tion involved in this cause has come regularly before the

court. In the Maryland case, it did not because the attor-

ney-general of the state voluntarily appeared. We could

not, therefore, without the greatest impropriety, have

taken up the question suddenly. That case has since been

compromised; but had it proceeded to trial, and a verdict

been given for the plaintiff, it would have been our duty,

previous to our giving judgment, to have well considered

whether we were warranted in giving it. I had then great

doubts upon my mind, and should, on such a case, have

proposed a discussion of the subject. Those doubts have

increased since, and after the fullest consideration I have

been able to bestow on the subject, and the most respect-

ful attention to the able argument of the attorney-general,

I am now decidedly of opinion, that no such action as this

before the court can legally be maintained.

The action is an action of assumpsit. The particular

question then before the court, is, will an action of

assumpsit lie against a state? This particular question

(abstracted from the general one, viz., whether, a state can

in any instance be sued?) I took the liberty to propose to

the consideration of the attorney-general, last term. I did

so, because I have often found a great deal of confusion to

arise from taking too large a view at once, and I had found

myself embarrassed on this very subject, until I considered

the abstract question itself. The attorney-general has spo-

ken to it, in deference to my request, as he has been

pleased to intimate, but he spoke to this particular ques-

tion slightly, conceiving it to be involved in the general

one; and after establishing, as he thought, that point, he

seemed to consider the other followed of course. He

expressed, indeed, some doubt how to prove what

appeared so plain. It seemed to him (if I recollect right), to

depend principally on the solution of this simple question;

can a state assume? But the attorney-general must know,

that in England, certain judicial proceedings, not inconsis-

tent with the sovereignty, may take place against the

crown, but that an action of assumpsit will not lie. Yet,

surely, the King can assume as well as a state. So can the

United States themselves, as well as any state in the Union:

yet, the attorney-general himself has taken some pains to

show, that no action whatever is maintainable against the

United States. I shall, therefore, confine myself, as much

as possible, to the particular question before the court,

though every thing I have to say upon it will effect every

kind of suit, the object of which is to compel the payment

of money by a state.

The question, as I before observed, is—will an action

of assumpsit lie against a state? If it will, it must be in

virtue of the constitution of the United States, and of some

law of congress conformable thereto. The part of the con-

stitution concerning the judicial power, is as follows, viz:

Art. III., Section 2. The judicial power shall extend, (1) To

all cases, in law and equity, arising under the constitution,

the law of the United States, and treaties made, or which

shall be made, under their authority: (2) To all cases affect-

ing ambassadors, or other public ministers and consuls: (3)

To all cases of admiralty and maritime jurisdiction: (4) To

all controversies to which the United States shall be party:

(5) To controversies between two or more states; between

a state and citizens of another state; between citizens of

different states; between citizens of the same state, claim-

ing lands under grants of different states; and between a

state or the citizens thereof, and foreign states, citizens or

subjects. The constitution, therefore, provides for the

jurisdiction wherein a state is a party, in the following

instances: 1st. Controversies between two or more states:

2d. Controversies between a state and citizens of another

state: 3d. Controversies between a state, and foreign

states, citizens or subjects. And it also provides, that in all

cases in which a state shall be a party, the supreme court

shall have original jurisdiction.

The words of the general judicial act, conveying the

authority of the supreme court, under the constitution, so

far as they concern this question, are as follows: Section

13. “That the supreme court shall have exclusive jurisdic-

tion of all controversies of a civil nature, where a state is

a party, except between a state and its citizens; and except

also, between a state and citizens of other states or aliens,

in which latter case, it shall have original, but not exclu-

sive jurisdiction. And shall have, exclusively, all jurisdic-

tion of suits or proceedings against ambassadors or other

public ministers, or their domestics or domestic servants,

as a court of law can have or exercise consistently with

the law of nations; and original, but not exclusive juris-

diction, of all suits brought by ambassadors or other pub-

lic ministers, or in which a consul or vice-consul shall be

a party.”

The supreme court hath, therefore, first, exclusive

jurisdiction in every controversy of a civil nature: 1st.

Between two or more states: 2d. Between a state and a for-

eign state: 3d. Where a suit or proceeding is depending

against ambassadors, other public ministers, or their

domestics or domestic servants. Second, original, but not

exclusive jurisdiction, 1st. Between a state and citizens of

other states: 2d. Between a state and foreign citizens or

398 ERA 3: Revolution and New Nation

subjects: 3d. Where a suit is brought by ambassadors or

other public ministers: 4th. Where a consul or vice-consul

is a party. The suit now before the court (if maintainable at

all) comes within the latter description, it being a suit

against a state by a citizen of another state.

The constitution is particular in expressing the parties

who may be the objects of the jurisdiction in any of these

cases, but in respect to the subject matter upon which

such jurisdiction is to be exercised, used the word “con-

troversies” only. The act of congress more particularly

mentions civil controversies, a qualification of the general

word in the constitution, which I do not doubt every rea-

sonable man will think well warranted, for it cannot be

presumed, that the general word “controversies” was

intended to include any proceedings that relate to crimi-

nal cases, which in all instances that respect the same gov-

ernor only, are uniformly considered of a local nature, and

to be decided by its particular laws. The word “contro-

versy” indeed, would not naturally justify any such con-

struction, but nevertheless it was perhaps a proper

instance of caution in congress to guard against the possi-

bility of it.

A general question of great importance here occurs.

What controversy of a civil nature can be maintained

against a state by an individual? The framers of the consti-

tution, I presume, must have meant one of two things—

Either, 1. In the conveyance of that part of the judicial

power which did not relate to the execution of the other

authorities of the general government (which it must be

admitted are full and discretionary, within the restrictions

of the constitution itself), to refer to antecedent laws for

the construction of the general words they use: or, 2. To

enable congress in all such cases to pass all such laws as

they might deem necessary and proper to carry the pur-

poses of this constitution into full effect, either absolutely

at their discretion, or, at least, in cases where prior laws

were deficient for such purposes, if any such deficiency

existed.

The attorney-general has indeed suggested another

construction a construction, I confess, that I never heard

of before, nor can I now consider it grounded on any solid

foundation, though it appeared to me to be the basis of the

attorney-general’s argument. His construction I take to be

this: “That the moment a supreme court is formed, it is to

exercise all the judicial power vested in it by the constitu-

tion, by its own authority, whether the legislature has pre-

scribed methods of doing so, or not.” My conception of the

constitution is entirely different. I conceive, that all the

courts of the United States must receive, not merely their

organization as to the number of judges of which they are

to consist; but all their authority, as to the manner of their

proceeding, from the legislature only. This appears to me

to be one of those cases, with many others, in which an

article of the constitution cannot be effectuated, without

the intervention of the legislative authority. There being

many such, at the end of the special enumeration of the

powers of congress in the constitution, is this general one:

“To make all laws which, shall be necessary and proper for

carrying into execution the foregoing powers, and all other

powers vested by this constitution in the government of

the United States, or in any department or officer thereof.”

None will deny, that an act of legislation is necessary to say,

at least, of what number the judges are to consist; the Pres-

ident, with the consent of the senate, could not nominate

a number at their discretion. The constitution intended

this article so far, at least, to be the subject of a legislative

act. Having a right thus to establish the court, and it being

capable of being established in no other manner, I con-

ceive it necessarily follows, that they are also direct the

manner of its proceedings. Upon this authority, there is,

that I know, but one limit; that is, “that they shall not

exceed their authority.” If they do, I have no hesitation to

say, that any act to that effect would be utterly void,

because it would be inconsistent with the constitution,

which is a fundamental law, paramount to all others, which

we are not only bound to consult, but sworn to observe;

and therefore, where there is an interference, being supe-

rior in obligation to the other, we must unquestionably

obey that in preference. Subject to this restriction, the

whole business of organizing the courts, and directing the

methods of their proceeding, where necessary, I conceive

to be in the discretion of congress. If it shall be found, on

this occasion, or on any other, that the remedies now in

being are defective, for any purpose, it is their duty to pro-

vide for, they no doubt will provide others. It is their duty

to legislate, so far as is necessary to carry the constitution

into effect. It is ours only to judge. We have no reason, nor

any more right to distrust their doing their duty, than they

have to distrust that we all do ours. There is no part of the

constitution that I know of, that authorizes this court to

take up any business where they left it, and in order that

the powers given in the constitution may be in full activity,

supply their omission by making new laws for new cases;

or, which I take to be the same thing, applying old princi-

ples to new cases materially different from those to which

they were applied before.

With regard to the attorney-general’s doctrine of inci-

dents, that was founded entirely on the supposition of the

other I have been considering. The authority contended

for is certainly not one of those necessarily incident to all

courts merely as such.

If therefore, this court is to be (as I consider it) the

organ of the constitution and the law, not of the constitu-

tion only, in respect to the manner of its proceeding, we

must receive our directions from the legislature in this par-

ticular, and have no right to constitute ourselves an officina

Formation of the New Government 399

brevium, or take any other short method of doing what the

constitution has chosen (and, in my opinion, with the most

perfect propriety) should be done, in another manner.

But the act of congress has not been altogether silent

upon this subject. The 14th section of the judicial act, pro-

vides in the following words: “All the before-mentioned

courts of the United States shall have power to issue writs

of scire facias, habeas corpus, and all other writs not spe-

cially provided for by statute, which may be necessary for

the exercise of their respective jurisdictions, and agreeable

to the principles and usages of law.” These words refer as

well to the supreme court as to the other courts of the

United States. Whatever writs we issue, that are necessary

for the exercise of our jurisdiction, must be agreeable to

the principles and usages of law. This is a direction, I

apprehend, we cannot supersede, because it may appear to

us not sufficiently extensive. If it be not, we must wait until

other remedies are provided by the same authority. From

this it is plain, that the legislature did not choose to leave

to our own discretion the path to justice, but has pre-

scribed one of its own. In doing so, it has, I think, wisely,

referred us to principles and usages of law, already well

known, and by their precision calculated to guard against

that innovating spirit of courts of justice, which the attor-

ney-general, in another case, reprobated with so much

warmth, and with whose sentiments in that particular, I

most cordially join. The principles of law to which refer-

ence is to be had, either upon the general ground I first

alluded to, or upon the special words I have above cited,

from the judicial act, I apprehend, can be, either, 1st.

Those of the particular laws of the state, against which the

suit is brought. Or 2d. Principles of law, common to all the

states. I omit any consideration arising from the word

“usages,” though a still stronger expression. In regard to

the principles of the particular laws of the state of Georgia,

if they in any manner differed, so as to affect this question,

from the principles of law, common to all the states, it

might be material to inquire, whether, there would be any

propriety or congruity in laying down a rule of decision

which would induce this consequence, that an action

would lie in the supreme court against some states, whose

laws admitted of a compulsory remedy against their own

governments, but not against others, wherein no such rem-

edy was admitted, or which would require, perhaps, if the

principle was received, fifteen different methods of pro-

ceeding against states, all standing in the same political

relation to the general government, and none having any

pretence to a distinction in its favor, or justly liable to any

distinction to its prejudice. If any such difference existed

in the laws of the different states, there would seem to be

a propriety, in order to induce uniformity (if a constitu-

tional power for that purpose exists), that congress should

prescribe a rule, fitted to this new case, to which no equal,

uniform and impartial mode of proceeding could other-

wise be applied.

But this point, I conceive, it is unnecessary to deter-

mine, because I believe there is no doubt, that neither in

the state now in question, nor in any other in the Union,

any particular legislative mode, authorizing a compulsory

suit for the recovery of money against a state, was in being,

either when the constitution was adopted, or at the time

the judicial act was passed. Since that time, an act of

assembly for such a purpose has been passed in Georgia.

But that surely could have no influence in the construction

of an act of the legislature of the United States, passed

before.

The only principles of law, then, that can be regarded,

are those common to all the states. I know of none such,

which can affect this case, but those that are derived from

what is properly termed “the common law,” a law which I

presume is the ground-work of the laws in every state in

the Union, and which I consider, so far as it is applicable to

the peculiar circumstances of the country, and where no

special act of legislation controls it, to be in force in each

state, as it existed in England (unaltered by any statute), at

the time of the first settlement of the country. The statutes

of England that are in force in America differ perhaps in

all the states; and therefore, it is probable, the common

law in each is in some respects different. But it is certain,

that in regard to any common-law principle which can

influence the question before us, no alteration has been

made by any statute, which could occasion the least mate-

rial difference, or have any partial effect. No other part of

the common law of England, it appears to me, can have

any reference to this subject, but that part of it which pre-

scribes remedies against the crown. Every state in the

Union, in every instance where its sovereignty has not

been delegated to the United States, I consider to be as

completely sovereign, as the United States are in respect

to the powers surrendered. The United States are

sovereign as to all the powers of government actually sur-

rendered: each state in the Union is sovereign, as to all the

powers reserved. It must necessarily be so, because the

United States have no claim to any authority but such as

the states have surrendered to them: of course, the part

not surrendered must remain as it did before. The powers

of the general government, either of a legislative or execu-

tive nature, or which particularly concerns treaties with

foreign powers, do for the most part (if not wholly) affect

individuals, and not states: they require no aid from any

state authority. This is the great leading distinction

between the old articles of confederation, and the present

constitution. The judicial power is of a peculiar kind. It is

indeed commensurate with the ordinary legislative and

executive powers of the general government, and the

power which concerns treaties. But it also goes further.

400 ERA 3: Revolution and New Nation

Where certain parties are concerned, although the subject

in controversy does not relate to any of the special objects

of authority of the general government, wherein the sepa-

rate sovereignties of the states are blended in one common

mass of supremacy, yet the general government has a judi-

cial authority in regard to such subjects of controversy, and

the legislature of the United States may pass all laws nec-

essary to give such judicial authority its proper effect. So

far as states, under the constitution, can be made legally

liable to this authority, so far, to be sure, they are subordi-

nate to the authority of the United States, and their indi-

vidual sovereignty is in this respect limited. But it is

limited no further than the necessary execution of such

authority requires. The authority extends only to the deci-

sion of controversies in which a state is a party, and pro-

viding laws necessary for that purpose. That surely can

refer only to such controversies in which a state can be a

party; in respect to which, if any question arises, it can be

determined, according to the principles have supported, in

no other manner than by a reference either to pre-existent

laws, or laws passed under the constitution and in confor-

mity to it.

Whatever be the true construction of the constitution

in this particular; whether it is to be construed as intend-

ing merely a transfer of jurisdiction from one tribunal to

another, or as authorizing the legislature to provide laws

for the decision of all possible controversies in which a

state may be involved with an individual, without regard to

any prior exemption; yet it is certain, that the legislature

has in fact proceeded upon the former supposition, and

upon the latter. For, besides what I noticed before, as to an

express reference to principles and usages of law, as the

guide of our proceeding, it is observable, that in instances

like this before the court, this court hath a concurrent

jurisdiction only; the present being one of those cases

where, by the judicial act, this court hath original but not

exclusive jurisdiction. This court therefore, under that act,

can exercise no authority, in such instances, but such

authority as, from the subject-matter of it, may be exer-

cised in some other court. There are no courts with which

such a concurrence can be suggested but the circuit

courts, or courts of the different states. With the former, it

cannot be, for admitting that the constitution is not to have

a restrictive operation, so as to confine all cases in which a

state is a party, exclusively to the supreme court (an opin-

ion to which I am strongly inclined), yet, there are no

words in the definition of the powers of the circuit court,

which give a color at an opinion, that where a suit is

brought against a state, by a citizen of another state, the

circuit court could exercise any jurisdiction at all. If they

could, however, such a jurisdiction, by the very terms of

their authority, could be only concurrent with the courts of

the several states. It follows, therefore, unquestionably, I

think, that looking at the act of congress, which I consider

is on this occasion the limit of our authority (whatever fur-

ther might be constitutionally enacted), we can exercise no

authority, in the present instance, consistently with the

clear intention of the act, but such as a proper state court

would have been, at least, competent to exercise, at the

time the act was passed.

If therefore, no new remedy be provided (as plainly is

the case), and consequently, we have no other rule to gov-

ern us, but the principles of the pre-existent laws, which

must remain in force until superseded by others, then it is

incumbent upon us to inquire, whether, previous to the

adoption of the constitution (which period, or the period

of passing the law, in respect to the object of this inquiry,

is perfectly equal), an action of the nature like this before

the court could have been maintained against one of the

states in the Union, upon the principles of the common

law, which I have shown to be alone applicable. If it could,

I think, it is now maintainable here: if it could not, I think,

as the law stands at present, it is not maintainable; what-

ever opinion may be entertained, upon the construction of

the constitution as to the power of congress to authorize

such as one. Now, I presume, it will not be denied, that in

every state in the Union, previous to the adoption of the

constitution, the only common-law principles in regard to

suits that were in any manner admissible in respect to

claims against the state, were those which, in England,

apply to claims against the crown; there being certainly no

other principles of the common law which, previous to the

adoption of this constitution, could, in any manner, or

upon any color, apply to the case of a claim against a state,

in its own courts, where it was solely and completely

sovereign, in respect to such cases, at least. Whether that

remedy was strictly applicable or not, still, I apprehend,

there was no other. The only remedy, in a case like that

before the court, by which, by any possibility, a suit can be

maintained against the crown, in England, or, at any period

from which the common law, as in force in America, could

be derived, I believe, is that which is called a Petition of

right. It is stated, indeed, in Com Dig. 105, that “until the

time of Edward I, the King might have been sued in all

actions, as a common person.” And some authorities are

cited for their position, though it is even there stated as a

doubt. But the same authority adds—”but now, none can

have an action against the King, but one shall be put to sue

to him by petition.” This appears to be a quotation or

abstract from Theloall’s Digest, which is also one of the

authorities quoted in the former case. And this book

appear (from the law catalogue) to have been printed so

long ago as the year 1579. The same doctrine appears

(according to a quotation in Blackstone’s Commentaries, 1

vol. 243) to be stated in Finch’s Law 253, the first edition

of which, it seems, was published in 1579. This also more

Formation of the New Government 401