Slavery: letters and speeches

by Horace Mann

The Fugitive Slave act purports to confer judicial power upon persons who are not judges. It provides for the creation of scores and hundreds of officers called “commissioners,” and upon these, it is said on high authority, to confer original and final jurisdiction on questions of human liberty. The constitution declares in whom “the judicial power of the United States shall be vested.” It shall be vested in “one supreme court, and in such inferior courts as Congress may from time to time establish.” No commissioner, nor any number of commissioners, constitute one of these courts. “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” A commissioner can be made and unmade on any day. These judges are to “receive for their services a compensation, which shall not be diminished during their continuance in office.” The commissioners are compensated by chance fees, and not by a fixed salary. The President nominates and the Senate confirms judges of the supreme and inferior courts. Commissioners are only the “inferior officers” who may be appointed by “the courts of law.”

I need not enforce the position, that the power which this act purports to confer upon commissioners is judicial. It has all the attributes of judicial power. It is original, final, and exclusive. They are “to hear and determine.” The fourth section says they “shall have concurrent jurisdiction with the judges of the circuit and district courts of the United States.” The attorney-general of the United States, in a written opinion, given by command of the President of the United States, says as follows: “These officers, [the commissioners,] and each of them, have judicial power, and jurisdiction to hear, examine, and decide the case.” “The certificate to be granted to the owner is to be regarded as the act and judgment of a judicial tribunal having competent jurisdiction.” “Congress has constituted a tribunal with exclusive jurisdiction to determine summarily, and without appeal, who are fugitives from service.” “The judgment of the tribunal created by this act is conclusive upon all tribunals.” The power of a commissioner, therefore, is judicial in the highest sense,—in the sense of the constitution. His decision cannot be reheard or reëxamined by any judge, or by any court, of any state, or of the United States. In no other case can a commissioner perform any judicial act, or issue any executive order, whose validity may not be reëxamined in the court for which he acts, or in some other. He cannot strike a blow, nor fine a dollar, nor punish by imprisonment for an hour. By appeal, by injunction, by mandamus or certiorari, the proceedings of inferior courts or magistrates can be reached, and their legality or constitutionality tested. But here a multitude of tribunals are established, over whose proceedings, not the supreme court of any state, no, not even the supreme court of the United States, has supervision. And what do these commissioners decide? That a man has no right to himself; that his body, limbs, faculties, are the property of another; that he owes service. Suppose the question were, whether the respondent owed the claimant a dollar. Could the commissioner give judgment and issue execution for it? Certainly not. But yet he is here authorized to decide questions infinitely more important than any amount of money. He is to decide that a man owes life-long service from himself, and from all the children of his loins.

But the surrender of an alleged fugitive from service has been compared with the surrender of a fugitive from justice; and because the supreme executive of a state is required by the law of 1793 to surrender fugitives from justice, it is claimed that any commissioner may surrender fugitives from service, without liability to question or reëxamination by any human authority. But there is a world-wide difference between the cases. When the fugitive from justice is delivered up, he is delivered into the custody of the law. Legal process must have been commenced against him in the state from which he fled. He is returned, that the proceedings thus commenced may be consummated. He is never intrusted to private hands. The shield of the law is continued over him. After arrest, he is merely transferred from the hands of the law in one state to the hands of the law in another state. He is transferred, not to evade trial, but to have one. But the alleged slave is delivered up, not into the custody of the law, where his rights might be adjudicated upon, but into private hands; not into the hands of a neutral or indifferent person, but into the hands of a party interested to deprive him of all his rights;—if he be not a slave, then into the hands of a man-stealer. Mr. Clay saw this, and his plan provided that the alleged fugitive should be sent home to be tried. But the south grew bolder and bolder, until a law was passed, by which one class of men have less security for their freedom than another class have for their cattle.

It is nugatory to say, that when an alleged fugitive has reached his claimant’s domicile, he may there petition for freedom. Should he do so, it would be an independent and original proceeding, instituted under another government. Not only would the jurisdiction be different, but the character of the litigants would be changed,—plaintiff for defendant, and defendant for plaintiff. The old case is not to be reheard, but a new one tried. Indeed, a very intelligent writer on this subject has queried whether the certificate of the commissioner may not be pleaded as an estoppel. I say, then, that, in effect, the commissioner, by this act, has original, final, and exclusive jurisdiction of a “case” “in law,” “arising under the constitution and laws of the United States.” This is the very function of judges and courts. This is the identical power which the constitution of the United States vests in judges who are to be nominated by the President, confirmed by the Senate, to hold office during good behavior, and to be compensated by fixed salaries.

Again, the act consigns a man to bondage, without crime, on evidence which he has had no opportunity to controvert. The claimant must prove three facts before the commissioner,—1st, That the person named in the warrant owes the claimant service; 2d, That he has escaped; 3d, Identity.

Now, according to the act, the first two points,—the facts of owing service and of escaping,—may be proved behind the respondent’s back. This proof may be procured against the alleged fugitive without any notice to him, actual or constructive; without the possibility of his encountering it, or disproving it, however false it may be. If this be not depriving a person of his “liberty” “without due process of law,” what can be? Why not make the whole case provable behind the man’s back,—in another state,—a thousand miles off,—and spurn the forms of justice, after having spurned its substance? This binding of a man by evidence obtained without his knowledge, is unknown to the common law, and abhorrent to it. It is never permitted, not even to deprive the worst man of the humblest right. Our laws save the rights of all parties under disability. Who is under so great a disability as he who knows nothing, and can know nothing, of what is going on against him? Notwithstanding the constitution declares that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” yet it has been held that a judgment obtained in another state, without notice, shall not prejudice the party against whom it was rendered. Such an act violates the first principles of justice. All securities for the life, liberty and property of us all, are swept away if such principles can be established.

Once more: The act says the certificate “shall be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the state or territory from which he escaped, and shall prevent all molestation of such person or persons, by any process issued by any court, judge, magistrate, or any other person whomsoever.” According to this, the certificate is a talisman which protects its holder against all law, all evidence, and all judicial power. A kidnapper may seize a free man in Boston, buy evidence that he owes this mysterious debt of service, obtain the requisite certificate against his victim, and then neither the mother who bore him, nor the elder brothers and sisters who grew up with him, nor the neighbors who have known him from his cradle, nor the minister who baptized him, can testify that he is free; nor can all the judges and courts in the commonwealth stop the man who is bearing away one of their fellow-citizens to a bondage worse than death, to inquire into his title. He is in a charmed circle that neither law nor justice can enter. Do you ask where is that old, time-honored writ of habeas corpus, for which martyrs have died and rivers of blood have flowed, and which the constitution declares SHALL NOT be suspended “unless when in cases of rebellion or invasion, the public safety may require it”? The answer is, that the writ of habeas corpus is nothing but a “process issued” by a court, and the act declares that the holder of the certificate shall be exempt from all “molestation,” “by any process issued by any court.” In one word, the law contains a provision that its own constitutionality shall not be brought into question; at least, until its victim reaches the place of his bondage, and is beyond the reach of rescuing hands.

Now, even if this act does not commit such gross infractions of the constitution that the courts will set it aside, yet it would seem as though no sane man could help seeing that it wars upon all our ideas of justice; that it repudiates and scorns all the great securities for freedom which wise and good men, for centuries past, have given their labors, and their lives, to establish; and that it converts the vast machinery of the social state, not into the means of protecting, but of assailing, the liberties of the citizen. As to the appointment of commissioners, it gives us none of the constitutional securities that improper men will not be invested with these high prerogatives against our dearest rights; and as to the manner in which evidence may be procured, it resembles the missives which the inquisition, in olden times, sent forth against heretics, to seize without law, to try without defence, and to punish without mercy or hope. It resembles the lettres de cachet, which, before the great revolution, the despots of France gave, in blank, to villain courtiers, and villain courtesans, to be filled up with the names of those persons whose perdition they would compass.

There are other points in this bill whose enormity only needs to be stated to be seen and abhorred. One of them is so unspeakably mean and contemptible, that all northern men must feel the insult more keenly than the wrong. It provides that if a commissioner will doom a man to bondage, his fee shall be twice as much as though he restores him to liberty. Now, every body knows that claimants will rarely, if ever, appear before commissioners without a prima facie case. If there be no defence, the proceedings will be brief. But a case of discharge presupposes a defence and a trial. A case of discharge, therefore, will probably occupy as much time as half a dozen cases of surrender. Yet for this greater labor, the commissioner is to have but half price. In assailing all we love of liberty, could not the framers and supporters of this measure have forborne to wound us in all we feel of honor!

The cases are to be “heard and determined,” as they were under Robespierre, “in a summary manner.” Shakspeareenumerates the “law’s delay” among the causes of suicide. Under this act, real suicides will doubtless be occasioned by the law’s despatch.[15] This “summary manner” contains the sum of wrong. Does not every lawyer and every client know that when an action is brought for the unfaithful execution of a contract, in building a house or a ship, or for the balance of an account, or for flowing lands, or for defamation or libel, the defendant needs weeks and often months to make ready for his defence. His witnesses may be in another state, or abroad; it may be necessary to examine ancient titles in registries of deeds or of wills, to make surveys of premises, or investigations into character and conduct. It often happens that when process is first served upon a man, he does not know the grounds of his own defence. They may consist of facts which he has forgotten, or of law of which he is ignorant. Our courts, acting upon this well-known truth, have established a rule that a party, even after he has had fourteen days’ notice, shall be entitled to a continuance as a matter of right, unless under special circumstances; and he may always have it on cause shown. I ask any defendant who was ever forced into court to resist a claim of any magnitude or difficulty, whether he was ready to do so, on the instant when process was served upon him? Yet this is what the respondent must do under the Fugitive Slave act. On the 26th day of last September, James Hamlet was peacefully pursuing a lawful occupation in Water Street, New York, and earning an honest support for his wife and children. In three hours, hand-cuffed, in irons, and surrounded by armed men, he was on his way to the house of bondage. No time was given him for procuring the aid of counsel. He declared he was free, that his mother was a free woman, and he a free man. But by another provision in the act, it is declared that “in no trial or hearing under this act, shall the testimony of such alleged fugitive be admitted in evidence.” In all other cases, within the broad compass of the common or statute law of Great Britain or of this country, a party litigant may give evidence pertaining to the suit. In some cases, he may give evidence on the merits; in all cases, he may make affidavit on interlocutory matters. A man who has been in the state prison, a felon scarred with crime, may still make affidavit, in his own case, under certain circumstances, though he can testify neither for nor against any other person. But an alleged fugitive can make oath to no fact, and under no circumstances, for delay or other cause. It would conflict with that “summary manner” in which it is deemed expedient to dispose of human liberty.