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ation. And why would it be so ? Because all laws depend in no small degree for their efficiency upon the public sentiment of the State or the community in which they are to be executed. If there be a strong sense of the injustice and oppressiveness of any particular provision, whether of this law or of any other, there will always be more or less of opposition to its execution. On the other hand, if provisions should be inserted in this bill like those proposed by the Senator from New Jersey, which cannot but accord with the sense of justice, and the strong preconceived opinion of right, of the communities in which this law is to have its main operation and effect, I believe it would in most cases be faithfully carried out, and that more fugitives from labor would be returned to their masters under its operation, than have been returned within the last half century. That is my own honest opinion.

At any rate, Sir, I shall vote for the amendment offered by the Senator from New Jersey, as right and just in itself, whatever may be its effect. I am in favor of recognizing the right of

. trial by jury in all cases where a question of personal liberty is concerned. I hope the amendment will be adopted. But if not, I shall offer one myself, which shall at least provide that the writ of Habeas Corpus may be allowed in cases of this kind, and that the certificates of these commissioners shall not prevent a review of the question by some more responsible magistrate than is provided for in this bill.

MR. Mason. I took some little interest in learning the facts of the case just adverted to by the honorable Senator from Massachusetts. I understood the Senator to reply to the question of my friend from South Carolina, which was, whether he ever knew of any instance in which a man claimed as a slave by a claimant from a slave State was found to be a free man and not a slave ; and the Senator, by way of addu. cing a case, instanced that out of which this law of 1793 grew. The history of that law I understand, I think, as well as the honorable Senator from Massachusetts; and it is this: Three men, from the State of Virginia, went into the State of Pennsylvania, and carried off a negro, and brought him to the State of Virginia. And they were indicted in Pennsylvania for "kidnapping," as it is called. A demand was made by the Governor of Pennsylvania upon the Governor of Virginia for the restoration, or rather the surrendering, of these three men as fugitives from justice, the offence charged being that they had committed a felony, in taking off this negro who was alleged to be free. Now, I want to know from the Senator from Massachusetts where he learns that the negro thus taken in Pennsylvania was a free man and not a slave ?

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MR. WINTHROP. I will answer the honorable Senator from Virginia with great pleasure. In the first place, Sir, our rule of presumption in Massachusetts is precisely opposite to that which I believe generally prevails in Virginia. We hold that every colored person is a freeman until he is proved to be a slave. Now, there is no proof or allegation anywhere that this kidnapped negro was not free, - and the very indictment found against those who seized him and sold him, would seem to settle the question that he was free. I stated, however, in the second place, that he was a freeman, upon the evidence of a report which was made to the Legislature of Massachusetts some years ago, by a committee which had investigated the facts, and which de. scribes him as "a free negro, named John.” I do not understand, moreover, that in any of the proceedings connected with this case, or in any of the papers communicated to Congress at the time, the suggestion was anywhere made that this man was a slave; but, on the contrary, I understand that those papers everywhere speak of him as a freeman.* In regard to this point, however, I am ready to be corrected.

But, Sir, as I am called up again upon this subject, I cannot resist the opportunity of giving one more answer to the inquiry of my honorable friend from South Carolina, (Mr. Butler.) His question in substance is, where is there an instance of a free person being seized as a slave ? Now, Sir, he must allow me to remind him — and I assure him that I do so in no mere spirit of crimination or reproach

- that such a thing may happen even under the express laws of his own State. It is well known, and I believe that the Senator from South Carolina himself has on some occasion expressed his regret at the fact, that the State of South Carolina, and other slaveholding States, have laws upon their statute-books under which free persons of color, coming from Boston or New York or Philadelphia, or any other of the commercial cities of the Union, in Northern vessels, and arriving in Southern ports, may be seized, without any charge of crime, and without any examination except to ascertain the color of their skin, — may be carried on shore and im

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* American State Papers, vol. xx. pp. 38–43.

prisoned, - and unless, when the vessel sails, the master of the vessel should reclaim them, and pay a pretty heavy reckoning for their maintenance in jail during the whole period of their detention, may be sold into slavery for life. Now, supposing that one of these free colored persons of the State of Massachusetts, or of any other State, having been seized, while on board of a vessel in which he was lawfully engaged, and having been imprisoned and sold into slavery in the manner and under the circumstances which I have stated, should make his escape, and should succeed in getting back to the port from whence he sailed, — would there be any thing so very unreasonable in our calling for a trial by jury upon a question whether he should be remanded into slavery ? Would it be altogether incumbent upon us, do you think, Sir, to take the mere oral testimony of the claimant, - even though he might have purchased the negro bonâ fide, – and at the same time to refuse to take the testimony of the fugitive himself, or of those who might have known him as a freeman before he went on the ill-starred voyage which terminated in his being seized and sold as a slave ?

Here again, then, is a case, in which such an occurrence as that alluded to by the Senator from South Carolina, might happen. I do not say that it is very likely to happen; but I cannot

; help adding in this connection, that, in my judgment, there is no grievance, no complaint, which the Southern States have ever arrayed against the Northern States, which can be compared for a moment with the grievance which the Northern States have to complain of at the hands of the Southern States in the provisions of these laws, - laws by which the cooks and stewards engaged on board their vessels, and in the prosecution of their lawful employments, are thus liable to be seized and sold into slavery.*

* It was proposed to include in this volume some passages of a debate on this subject, and particularly in regard to the laws of Louisiana, which occurred incidentally in the Senate soon after these remarks were made. But it was found impossible to detach what was said by Mr. Winthrop from its connection, and to insert it here in a separate form, without doing great injustice both to himself and others. The same consideration prevents the insertion of other remarks upon other subjects during Mr. Winthrop's Senatorial service. Meantime, while this volume is passing through the press, it is noticed with pleasure, that the Legislature of Louisiana have passed an act, which received the signature of the Governor of that State on the 18th of March, 1852, essentially modifying the law of 1842, and relieving it of many of its most obnoxious and oppressive features.

Before taking my seat, Sir, I will venture to make one suggestion, a little more practical, perhaps, in regard to this summary process recommended by the amendment of the Senator from Virginia. Here is a case referred to in his own report the celebrated case of Prigg v. The Commonwealth of Pennsylvania. What were the circumstances of that case? It seems that a negro woman named Margaret Morgan had fled from service and escaped to Pennsylvania in the year 1832; and that the defendant, as the legally constituted agent of Margaret Ashmore, had caused the said Margaret Morgan to be apprehended in the year 1837. Now, here is an interval of five years from the time of the escape to the time of the arrest; and there might be an interval of ten years, or of twenty years even, so far as any provision of this bill is concerned. There is no statute of limitations here in regard to the rights or powers of the claimant. He may come into a free State after any lapse of time, however long, and upon his mere oral testimony, when his recollections of the fugitive himself may be ever so indistinct, and when the fugitive himself may be so much changed as to render liability to mistake ever so great, he may demand of one of these commissioners the certificate, which may settle forever against the party claimed the question of his right to freedom. Sir, if the trial by jury is not to be allowed in all cases, would it not be proper, would it not be just, to incorporate into this law something of the principle of “fresh pursuit;" giving to all persons the right of trial by jury, except in cases of such fresh pursuit; and giving to that fresh pursuit a limit of not exceeding one or two years at the furthest? When a longer time than this has elapsed since the alleged fugitive escaped, ought there not, I ask, to be ample opportunity afforded for investigation, on the spot where he is seized, in order that it may be ascertained, beyond all doubt, whether the party claimed be really the fugitive he is charged with being, and whether there may not be those in the neighborhood who have known him as one born and brought up among themselves, and as now wrongfully seized as a runaway slave? I can only say that such a course would seem to me eminently just and proper.




I am greatly honored, Mr. President, by the sentiment just proposed, and I beg my good friend, the Vice-President, (Hon. Benjamin Seaver,) to accept my hearty thanks for the kind and complimentary terms in which he has presented my name to the company. I am most grateful for the opportunity of meeting with so large a number of the intelligent and enterprising merchants of Boston, and of uniting with them in a tender of deserved hospitality, and in a tribute of just respect, to the Commissioner of his Imperial Majesty, the Sultan of Turkey.

And yet, I cannot but reflect, even as I pronounce these words, how strangely they would have sounded in the ears of our fathers not many generations back, or even in our own ears not many years ago. A deserved tender of hospitality, a just tribute of respect, to the Representative of the Grand Turk! Sir, the country from which your amiable and distinguished guest has come, was not altogether unknown to some of the early American discoverers and settlers. John Smith - do not smile too

soon, Mr. President, for though the name has become proverbially generic in these latter days, it was once identified and individualized as the name of one of the most gallant navigators and captains which the world has ever known — that John Smith who first gave the cherished name of New England to what the Pilgrims of the Mayflower called “ these Northern parts of Virginia” — he, I say, was well acquainted with Tur

key; and two centuries and a half ago, he gave the name of a Turkish lady to one of the Capes of our own Massachusetts

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