William Schouler, A history of Massachusetts in the Civil War: Volume 1

[6] by his predecessors in the gubernatorial office, with many cogent reasons. He delivered his valedictory address on the 3d of January, 1861, in which he gave a review of the legislation, and a statement of the finances of the State for the three years during which he had been the chief executive officer.

It is my purpose to speak upon but two of the topics discussed in the address, which have a direct bearing on the war which was so soon to open, and in which Governor Banks was to take a prominent part, as a major-general in the Union army.

The Legislature of 1858 had passed what was known as an act for the protection of personal liberty. It was intended to mitigate the harsh and unjust provisions of the act of Congress passed in 1850, known as the Fugitive-slave Law. Several persons, held in the South as slaves, had made their way to Massachusetts; and, being afterwards arrested, had been returned to their masters. The entire provisions of that act were abhorrent to our people, notwithstanding its friends and supporters claimed for it an exact conformity to the provisions of the Constitution of the United States.

The opinion of the Supreme Court of the United States, pronounced by Judge Story, himself a Massachusetts man, declared that the Constitution contemplated the existence of ‘a positive, unqualified right, on the part of the owner of the slave, which no State law or regulation can in any way qualify, regulate, control, or restrain.’ This opinion of the Supreme Court, Governor Banks said, ‘has been approved by the Legislature of this State, and confirmed by its Supreme Judicial Court.’ He then invited the attention of the Legislature to the sections of the State act relating to the writ of habeas corpus and the State act for the protection of personal liberty, which he thought conflicted with the act of Congress regarding fugitive slaves; and said ‘It is not my purpose to defend the constitutionality of the Fugitive-slave Act. The omission of a provision for jury trial, however harsh and cruel, cannot in any event be supplied by State legislation. While I am constrained to doubt the right of this State to enact such laws, I do not admit that, in any just sense, it is a violation of the national compact. It is ’