Slavery: letters and speeches

by Horace Mann

So the constitution does not say, in suits between merchant and merchant, or between landlord and tenant, and so forth, “the right of trial by jury shall be preserved;” but it says, “In suits at common law, where the value in controversy shall exceed twenty dollars.” The right is not determined by the character of the litigants, but by the nature of the action. The constitution does not care who the parties are,—man, woman, bond or free,—it is all the same. As soon as parties appear upon the record, the right to trial by jury attaches. The suit, and not the civil condition of the litigants who instituted or who defend it, tests and determines the jury question.

In the case of Lee vs. Lee, before cited, the law allowed an appeal only in case the sum in controversy should amount to one thousand dollars. The appellant was of African descent, and therefore, within that jurisdiction, presumptively a slave; not presumptively a freeman, as every man is in a free state; and, if a slave, then he could own no property; for, by the cruel law of slavery, every master may rob his slave legally of all that he earns, or finds, or otherwise receives. Yet the supreme court sustained the appeal. Why was not so astute an exception as this then taken?—an exception which, if they have a bar in Pandemonium, would have done honor to one of its counsellors. Why was it not said that a slave was no party to the law, and therefore not entitled to its benefits? No reason can be assigned why a slave is not as much under the protection of a constitution made for the “people,” as under the protection of a law made for the “people.” Yet here, even in the case of a presumptive slave, a right was acknowledged, which some freemen, in free states, deny to presumptive freemen.

I have here been combating the argument, that because the Fugitive Slave law is aimed at slaves, no freeman has any ground of complaint against it, even though he should be converted into a chattel under it. He must console himself under the doom of interminable bondage, with the patriotic and pious reflection that he is only suffering, as an exception, to prove the general excellence of the law; and he must leave this consolation also to his enslaved children. For, in his case, it is said that eternal slavery is only one of those exceptions in the working of the law which proves the rule of its general excellence. This argument I hold to be eminently sophistical and cruelly oppressive. But if any one believes it to be a sound argument, then I hold him to all fair deductions resulting from it,—of which the following is clearly one:—

On the same ground on which Congress passes a law for escaped slaves, let every free state pass a law for resident freemen. The presumption in every free state being, that all men within its borders are free, let every such state give the trial by jury, in all cases in which personal liberty is involved, to every one who shall ask for it, and who has not once had it in a litigation with the same party, on the same subject-matter. According to the argument I have been considering, no slaveholder can complain of such a law; for, by its very terms, it applies only to freemen. The law of Congress applying only to slaves, and the supposed state law applying only to freemen, there is no conflict between them. And if, by accident or mistake, any real slave should take shelter under such a state law, and should escape a life of horrible bondage, it will be only one of those mistakes which may arise under the purest administration of justice. It will answer quite as well as its counterpart case, to stand as one of those exceptions in the working of a rule which prove its general excellence. If the occasional subjection of a freeman instead of a slave, to all the horrors of bondage, constitutes no valid objection to the United States law, then, surely, the occasional enfranchisement of a slave from a bondage that was always unjust and cruel, should constitute no objection to the law of the free state. If this Fugitive Slave law continues for a single year, I hope every free state will pass a law inflicting condign punishment upon every man who directly or indirectly assists in sending any man into southern bondage, unless he can prove before a jury that the man so sent was a slave.

So far, I have considered the question, whether a fair interpretation of the constitution does not secure the jury trial in every free state, to an alleged fugitive, and empower him to demand it as a matter of right.

But this is a strange question to discuss in a republican government. The proper question is, not whether the constitution expressly demands the jury trial, but whether it will, by any fair implication, allow it. The only point which a republican judge or citizen can, with decency, make on this subject is, Does the constitution forbid, prohibit, deny, such trial?—for, if it does not, then the jury should be granted of course. In a free country, under a free government, where the idea has become traditional, where the doctrine has become a household doctrine, that the trial by jury is the palladium of our civil and religious liberties, is it not amazing that we should find men who seem eager to avoid this form of trial, rather than zealous to grasp it? It is the saddest of spectacles; it argues the most mournful degeneracy, to see the children at this early day, from grovelling notions of ambition and of wealth, abandoning those noble principles of freedom for which their fathers so lately shed their blood. Wherever the constitution allows the trial by jury, in a matter of human liberty, in Heaven’s name let us have it. Let Russia and Austria curtail and deny this privilege of freemen; let the tyrant, and the tyrant’s minions among ourselves, explore the musty records of darker times, to find precedents against it; let them strive, by their shallow sophistries and plausibilities, to gloss over this ravishing of liberty and life from beings created in the image of God; but let every true republican, whenever, in the disposal of these momentous interests, the constitution will, by fair construction, sanction it, cling to the trial by jury, as to the only plank that will save him,—ay, the only one that will save the human race,—from being again ingulfed in the vortex of despotism. The enemy of the trial by jury, wherever human liberty is concerned, is the enemy of human liberty and of the human race. The friends of a repeal of this law, then, need not discuss the question whether the constitution does expressly confer the right of trial by jury upon the alleged fugitive, for it is enough for them if the constitution does not take it away.

It is worthy of remark, that in both of the bankrupt laws passed by the United States, it was expressly provided, that when the commissioners should declare any person to be a bankrupt, he should have the right to a trial by jury to annul their decision. Thus, when the law proposed, not to appropriate a man’s property, but merely to enable his creditors to receive it in payment of their debts, the jury trial was secured to him; but here, where the direct purpose is to strip a man of his liberty, and of his property in himself, the jury trial is denied.

This seems an appropriate place to consider the further irrelevant suggestion, sometimes obtruded, namely, that an alleged fugitive is not deprived of a trial by jury, because he may have it in the state to which he is carried.

Here the pro-slavery advocate admits, at least for argument’s sake, that the alleged fugitive has a right, at some time, and some where, to the jury trial. If so, then there are numerous and powerful reasons why this trial should be had in the state in which he is found, rather than in that to which he may be transported. I will advert to a few of these reasons.

1. Slaves are held to be personal property. Trover lies for their value where they have been unlawfully converted. Trespass is the remedy for an injury done to them. According to the laws of all the slave states, they are the subject of larceny. Suits to recover them, or to recover damages for an injury done to them, are personal actions; and in personal actions it is required, by all the precedents and all the analogies of the common law, that the action should be tried in the jurisdiction where the writ is served. By the common law, personal actions are transitory. They are to be brought where the defendant resides; or, at least, where the property which is claimed lies. In the case of an alleged slave, both the defendant and the property are where he is found. According to the usages and principles of the common law, therefore, the trial should be there.