Jones_Letter_234_51047

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Commonwealth of Massachusetts Secretary's Office, Boston; March 31, 1845 Sir; The following is a copy of a Resolve of the General Court of this Commonwealth, approved by the Governor on the 24th inst. :- "Resolved, That the Declaration annexed be adopted as the act of the Commonwealth of Massachusetts, and that His Excellency the Foverner be hereby authrized to transmit one copy of the same to the President of the United States. and one copy to the Governor of each of the States constituting the United States of America, excepting only the State of South Carolina, with a respectful request that the same be submitted to the consideration of the Legistatures of the United States and of the States respectively."

Subjoined is a copy of the Declartion refered to in the Resolve , which I have it in charge from the Governor of this Commonwealth respectfully to request your Excellency to lay before the Legistature of your State at its next session.

I have the honor to be, most respectfully, Your Excellency's obedient servant, John [illegible]

To His Excellency the Governor of Tennessee

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Declaration The State of Massachusetts now addresses each of her sistes States of the North American Federal Union, and, in the presence of all Christian nations, of the civilized world, an of an omnisent, all-seeing Diety, the final Judge of human action in states an in individuals, enters her earnest and solwm protest against the hostile acts of the State of South Carolina.

Massachusetts this arraigns South Carolina, because, disregarding the comity acknowleged by all civilized communities as into which her citizens voluntarily entered with those other States composing the Union, she has, for a period of time now embracing a quarter of a century, persisted, and still persists, in executing a system of legislation, agressive upon the rights of her sister States, and has refuse to submit her action to be judged by the tribunal specified by that Constitution as teh arbiter of their disputes, namely, the Supreme Court of the United States.

This system of legislation, under the color of police laws, has been carried on by South Carolina until it has assumed all fo the following principles :--

First. That the State has a right to send officers on board of the ships of other States, touching at her ports, with the design of distinguishing between the persons who constitute the crew, and seizing at her sole discretion, and casting into prision, such as she may specofy, without the neccessity of alleging against them the commission of any crime.

Second. That the State has a right to inflict corporal punishment, by the applicarion of the lash, to any extent upon the persons of citizens of Massachusetts, soely because they may be found a second time in the ships of their own State touching at her port. Third. That the State has a right to sell into absolute slavery for life, human beings, unoffending persons, freemen of Massachusetts, entitled, by her Constitution and laws, to the fullest security of life, liberty and property, as well when following a lawful calling on board her ships as when at home.

Fourth. That the State has a right to expel from her territory citizens of Massachusetts going to it for the sole purpose of seeking the peaceful mode of redess for her citizens which the Constitution of the Unted States affords, an opportunity to appeal to the courts of the Union.

Fifth. That the State has a right to punish, by fine and imprisonment, any citizen coming from any other State, with the intention to question the validity of laws which assume the right to imprison, to whip, and to sell the freemen of the latter, without hearing, trial, or the allegation of any crime.

In former times, as between independent States, the assumption of powers far more circumscribed that these, would have been met by the resort to arms. But Massachusetts is too well aware of her obligations to endeavor to seek redress in any manner which the Constitution of the United States and the advancing spirit of Christian civilzaion would alike condemn. She will not give loose to a spirit of retaliation which the offence might well justify, nor even indulge in language of recrimination that would ill become the disposition she seeks to cultivate towrds her sister States. It may be, that, in the contests which mark the progress of the nineteenth century, she will differ from many of them in her mode of adhering to principles of vital importance to human liberty, but she will do so calmly. And though streadfast i the maintenance of her own rights, she will not seek needlessly to attack theirs. Their earnest appeal to them shall not be soiled with a single expression which would ever cause a just regret to the remotest descendents of her citizens. It shall claim for them to undisturbed enjoyment of all the pribileges which their ancestors braved every danger to secure; but that claim shall be made to rest only upon those immutable principles of justice, of freedom, and of right, which, however smothered for a time by the force of local intrests or sectional passions, must in the end extort the assent of the most reluctant heart.

Fie and twenty years have elapsed since the date of the first hostile act now complained pf; a sufficient time for reason to resume its sway, had the policy been the offspring merely of momentay alarm and inconsiderate haste. Instead however of relaxing, the subsequent legislation has varied only in its severity. It must now be assumed as beyond a doubt, that South Carolina will not surrender her claim of the right to board the ships of other States, in order to pick out from their crews whom she thinks fit to suspect of evil intention, and to seize and imprison, perhaps to whip, and perhaps to sell into slavery for life, these persons, of

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she so incline, without being under the necessity of alleging against them any crime beyond that of their appearance in those ships at her ports.

In the long list of offences charged, upon the mother country, as justifying the seperation of the Colonies, there is not found in the Declaration of Independence one, the arbitrary character of which appoaches that of the acts committed upon citizens of friendly States by South Carolina under this claim. For they make of no account whatsoever the vital principle which animated that, as it must every just struggle of a people for freedom, the principle that no man should be subjected to the loss of life, of liberty, or of property, without the allegation of some offence committed, and without being heard in his defence. When the representatives of the Colonies, in 1774, addressed their first remonstrance to the people of Great Britian, they only declared that "they held it essential to English liberty that no man be condemed unheard, or punished for supposed offences, without having an oppertunity, never occured to them. That was a position which the most extravagant assertor of the British prerogative would not, in the face of her history, of Magna Charta, of the petition of right, of the execution of Charles, of the bill of rights, and the acts of settlement, have conceived it possible to assume.

Had there been no peculiar ties of sympathy, long since created, to bind South Carolina and Massachusetts togeter, had they been merely upon the footing of civilized nations at peace with each other, these acts of the former, and the principles which they involve, could have been regarded in no other light than as intended to provoke hostility. And perseverance in them, after remonstrance on the part ofthe latter state, would justify retaliation and even war. The recognized law of nations is clear, that an injury either done or threatened to the perfect rights of a nation, or of any its members. and susceptible of no other redress, is a just cause of war. The only justification for her conduct that has ever been attempted by South Carolina, is the plea of necessity if police reguations to her own safety. But this plea, as opposed to the rights of other nationa liable to be affected thereby, however potent, cannot be carried to the extent to which that State would push it. Massachusetts denies her right, under any such pretence, to arrogate to herself a right of jurisdiction over the ships of Massachusetts. or condeming her citizens without appeal, simply because they are following an innocent and honest occupation on board of those ships whilst lying in her harbors. She denies her right under such pretence to violate, at her sole will and pleasure, the perfect rights of other nations, or of any of their members. South Carolina may, of she think fit to press her plea, deprive the citizens of foreign States of certain pribileges upon her soil which comity would grant; but she surely cannot justly claim by it to board their ships, - to make distinctions among the crews of those ships,- to compel whom she pleases to enter her territory against their will.- to imprision them in her jails,- to force the commanders to give bonds to redeem them, and to pay expenses attending their involuntary detention,- to lash them, and to sell them as slaves for life. These acts are acts of war. They have no justification in the recognized intercourse of Christian or civilized nations intending to remain at peace. They lead to the last appeal between soverigns, and t onothing else. For it is indispensable duty of the nation thus attacked in the persons of her citizens, to protect them in every manner possible in the enjoyment of their rights, both of persons and property, she herself being the only judge whether it be advisable or not to resort to force. This is a fundamental principle of every social compact. In accordance with this established law of government, Great Britian, which seldom neglects to interpose her arm for the security even of the bumblest of her citizens in foreign countries, felt herself called upon to enter a formal complaint against the extention of the operation of these same acts of South Carolina over her subjects visiting the ports of Charleston in her ships. She remonstrated, not with that State, but with the Government of the United States. She appealed to it to maintain the faith of its treaties. William Wirth, a citizen of Virginia, and afterwards of Maryland, then occupying the responsible post of Attorney General of the United States, and entitled to high consideration as a legal authority down to this day, pronounced the complaint, well-founded, and the acts of complained of, an infraction of "The Constitution, treaties and laws of the United States, and incompatable with the rights of all nations in amity with the United States." South Carolina yielded; but, as if determined to show the world that she conceded only to the danger of an impending rupture, and not to the conviction of her error, she only suspended the operation of her acts upon the citizens of a powerful foreign nation; whilst she persevered in executing them upon her neighbors and friends, whom it semed less hazardous to wrong. And this it is, that more than once, in the harbor of Charleston, citizens of Massachusetts have found, on board of the ships of a foreign state, a refuge from opression by their fellow countrymen, which their own ought, but was unable, to secure to them. But superinduced upon these general obligations upon all nations to respect the perfect rights of each other, there are special ones which South Carolina, by the voluntary ratification of the Constitution of the United States as a common form of government, assumed towards the citizens of the other States, and, among them, to those of Massachusetts. Whatever may be the character of that compact, whether between the States or the people of the States, it should be a law equally imperative in its character upon all the parties to it. Massachusetts is prepared to abide by it, as well as in those portions which are onerous to her as in those from which she benefits. But when doing this, she expects, nay, she demands, the same rule of action from her sister States. She will never acknowledge the right of any one or more of them, under any plea whatsoever, to set themselves above the obligation of conforming to its terms, particularly in those cases which most nearly touch the pribileges secured to her own citizens. It is one of the provisions of the Constitution, that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Massachusetts affirms that this provision has veen set aside by the acts of South Carolina. She avers that her citizens ar enot allowed any privileges and immunities, who are seized, cast into prision, lashed, or sold as slaves for life, with-

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out a shadow of crime defined against them on her own statute book. She denies that any thing can be called a privilege or immunity which is attended with so glaring a violation of the right of personal liberty. She now solemnly, and before the face of Heaven, charges upon South Carolina a deliberate and palpable breach of that condition of the common compact, and she appeals to the sense of justice and of right, both of the living and future generations, to answer, that THE CHARGE IS TRUE.

But had South Carolina any justification to make of her acts beyond the tyrant's plea; did she join issue with Massachusetts upon the question, who are the citizens of each State entitled to enjoy the privileges and immunities referred to in the Constitution ; did she deny that the persons whom she claims the right to seize, to imprison, to whip or sell, without question, although admitted to belong to Massachusetts ships, are Massachusetts citizens, there is provided for her, under the compact to which she made herself a party, a grace tribunal, to which, in the last resort, every controversy between the States may be brought to a peaceful end. The Constitution assigns to the judicial power of the United States the province of deciding controversies between two or more States, between a State and citizens of another State, or between citizens of different States. Massachusetts has taken every measure in her power to induce South Carolina to submit this question of the validity of these laws, so far as they apply to her citizens, to that power. The great object expected to be gained by the employment of a special agent, was, that the necessary measure might be perfected within the territory of South Carolina, where only they could be taken, to procure an ultimate decision. If Massachusetts be wrong in her view of her rights, she has no reason, from the constitution of that final tribunal, to expect a scruple of partiality in her favor to weigh in arrest of judgment. But whether wrong or not, she has offered, and does offer, to abide by the award, whatever it may be. And she insists upon her right, under the obligations of the common compact, to demand the assent of South Carolina to the proposal. It is one of the most solemn considerations attending this controversy, that the State has been willing to intrench herself behind every technical obstacle to such a decision; that her citizens, when called upon professionally to take the ordinary steps to forward it in the federal courts, have all declined so to do ; that she has now formally prohibited them from accepting any similar trust ; and that she has thought proper to threaten with personal violence, in order to deter from acting, an individual sent from Massachusetts to do what her own citizens have refused to do. The evidence necessary to prove her intent, is then at last complete. It must be assumed that South Carolina now deliberately refuses to recognize the authority of the federal tribunal. She sets herself above the restrictions of the Consititution which she agreed to sustain, and perseveres in the execution of her will at whatever cost. If it be once assumed that the government of the United States has not either power or will to interpose, it becomes a grave question to consider, whether the citizens of Massachusetts can much longer remain bound by their obligations to her under the compact. Such is the legitimate consequence of the policy she has thought it proper to pursue. Massachusetts presents this view to each of the States, without seeking to encourage any use of the unfortunate liberty which it might be construed to give.

It is true that once an attempt was made in the Congress of the United States to sustain by an elaborate report the position which South Carolina has assumed, upon strictly constitutional ground. And inasmuch as that State, though refusing to submit the argument upon which it rests to the judgment of the Federal Court, has taken the same general basis for the resolutions passed by her Legislature, it acquires a degree of importance which may bring it within the notice of Massachusetts. The argument is, that in the clause of the Constitution granting to "the citizens of each State all privileges and immunities of citizens in the several States," South Carolina is bound to extend to them only the same degree of privilege and immunity that she does to her own population at home "under the like circumstances." Hence it must follow, that if she retains to herself the right to seize, imprison, lash and sell as slaves for life, without charging the commission of any crime or giving them any hearing, any part of her freemen, she may constitutionally claim to exercise the same power over the freemen of other States "under the like circumstances." With all the inhumanity that ordinarily attends a code of slave laws, there will scarcely be found in them any authority for such a proposition as this, and if there were, its publication in the face of the Christian world would at once be its condemnation. No. Free negroes are safe from personal harm even in South Carolina, so long as they obey the laws and commit no offence. But the free negroes of Massachusetts are liable, whenever they come into the harbors of Carolina in the vessels of Massachusetts, to be seized, cast into prison, whipped and sold for slaves, notwithstanding that they may manifest no dispositions whatever to touch her soil, or to commit the smallest act likely to draw down on them a suspicion. Are then the cases parallel even upon the reasoning presented, and does South Carolina, by her own construction of the Consitution, extend to the citizens of each State all privileges and immunities which she grants to her own "under the like circumstances"?

But the construction admitted for the sake of the argument, when analyzed, is proved fallacious to the last degree. It has been made to rest upon a definition of citizenship nowhere found in the numerous works upon government which have usually been recognized as authority during the last century, but drawn from a judicial opinion of a court in the State of Kentucky. It is due to the present question to quote it entire as it stands in the original defence.

"The term citizen is derived from the Latin word civis, and, in its primary sense, signifies one who is vested with the freedom and privileges of a city. If we go back to Rome, whence the term citizen had its origin, we shall find, in the illustrious period of her republic, that citizens were the highest class of subjects to whom the jus civitatis belonged, and that the jus civitatis conferred upon those who were in possession of it all rights and privileges, civil, political, and religious. When the term came to be applied to the inhabitants of a State, it necessarily carried with it the same signification, with reference to the privileges of a city ; and it is in this sense that the term citizen is believed to be generally, if not universally, understood in the United States. This, indeed, evidently appears to be the sense in which the term is used in the clause of the Constitution which is under con-

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sideration; for the terms "privilege and immunities" which are expressive of the object intended to be secured to the citizens of each State in every other, plainly import, according to the best usages of our language, something more than those ordinary rights of personal security and property, which, by the courtesy of all civilize nations, are extended to the citizens or subjects of other countries while they reside among them. No one can, therefore, in the correct sense of the term, to be a citizen of the State who is not entitled, upon the terms prescribed by the institutions of the State, to all rights and privileges conferred by those institutions upon the highest class of society ;" &c.

Upon similar idea of citizenship, South Carolina rests the declaration made by her government on the sixth of December, 1844, in these words:

" Resolved, That the free negroes and persons of color are not citizens of the United States within the meaning of the Constitution, which confers upon the citizens of one State the privileges and immunities of citizens in the several States."

Massachusetts takes the issue before the world with South Carolina upon this position. She maintains the definiation to be false, the conclusion from it be dangerous, and the resolve which rests upon it to be an essential perversion of the terms of the Constitution which it purpots to quote.

Had the Kentucky court turned to the preable of that Constitution under which it acted, in these words: "We, the representatives of the people of the State of Kentucky, in convntion assembled to secure all the citizens thereof, the enjoyment of the right of life, liberty and property, and of pursuing happiness, do ordain this Constitution," &c.--would it then have ventured to maintain, in the face of the republican people of that State, that they meant to secure the advantages spoken of only to "the highest classs of their society"?

Did it mean to infer that, because there may be free persons in a State who did not enjoy all the privileges and immunities conferred upon the highest class of her society, they are not citizens, and are therefore entitled to claim none at all> Hence, that the State in which they live, may at pleasure seize, imprison, order to be beaten wiht a lash, or sold into slavery for life, all such free persons, without the necessity of alleging against them the commission of any crime?

The court of Kentucky obviously meant to justify no such inferene. It construes the terms "privileges and immunities" in the Constitution "to import something more than ordinary rights of personal security and property which the courtesy of all civilized nations extends to the subjects or citizens of other States." But if this be att once admitted, how comes it that South Carolina can draw from it any justification in depriving whom she may think fit from other States, even of those "ordinary rights which the courtesy of all civilized nations would extend to them"? The definition then seems to presume something more to be secured than the aboslute rights of strangers, "subjects or citizens of othe States." The conclusion drawn from it, not merely gives them something less, but utterly denies them any rights whatever. The result of the whole would seem to be, that a portion of the people of Massachusetts or the other States of the Union, instead of gaining any new "privileges and immunities" by the adoption of the federal Constitution, must have been actually deprived by it of those which they would have had without it.

But Massachusetts has learned the doctrines of liberty in no such schools as these. She claims to be a republic, and not an aristocracy. Her Constitution, formed in the midst of the fiery trail of the Revolution, breathes the spirit of the fathers of her freedom. It declares "all men born free and equal, and having certain natural, essential nd unalienable rights." The seventh article of her Declaration of principles affirms, "government to be institued for the common good ; for the protection, safety, prosperity and happiness of the people, and not for the profit, honor, or private interest of any one man, family, or any one class of men." The tenth says that " each individual of the society has a right to be protected by it, in the enjoyment of his life, liberty and property, according to the standing laws. He is obliged, consequently, to contribute his share to the expesne of this protection ; to give his personal service, or an equivalent, when necesarry." There is not a word in it about " the highest class of society." Citizenship, according to it, embraces all the members of the social system, who, while contributing to its burdens, earn the right to its protection. The duty of the Staate is imperative to shield against wrong the humblest of its members not less than the produest. So far as her Constitution is concered, she recognizes no distinction of rights between the two.

It is not then as " citizens of the United States," as the State of South Carolina pretends, but because they are citizens of Massachusetts, that this State claims the guaranty of the Constitution of the United Statess to protect her people against wrong in the harbors of Carolina. That instrument explicitly enough says, that "the citizens of each State," not the citizens of the United States, for there are no such peresons qualifed to make the claim, excepting as they are primarily citizens of some smaller body politic, "shall be entitled to all privileges and immunites," not to the privilges, as the resolve of South Carolina States it, "of citizens in theseveral States." The citizens of Massachusetts are entiled, in South Carolina, to all all the privileges which citizens of South Carolina themselves enjoy. What the precise extent of those privileges are it is unecessary here to inquire, so long as it must be conceded that they cover immunity from gross wrongs. So long as South Carolina arrogates the right of seizing, imprisoning, whipping and selling as slaves for life, any member of the social system of Mssachusetts without cause assigned, hearing or trial, just so long is that immunity referred to in the Constitution wholly set at nought. Neither is it material to the question, what the social position of the oppressed persons may be in Massachusetts. They do unquestionably every year exercise the privilege of voting conceded to all citizens ; but, if they did not enjoy it, they would be in no worse position than are all women or chuldren under twenty-one years of age. On this or any similar score, it is not within the competency of South Carolina to make arbitrary distinctions among her people. It is enough that they are human beings, endowed by the Deity with "certain natural, essential, unalienable rights, among which may be reckoned the right of enjoying and defending their lives and

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