Slavery: letters and speeches

by Horace Mann

It seems clear, then, that the proceedings authorized by the Fugitive Slave law cannot be taken out of the meaning of the word “cases,” (cases in law and equity,) in the third article.

There is another clause in the third article, which embraces these proceedings with equal clearness and certainty. “The judicial power shall extend to controversies” “between a state and citizens of another state.” I suppose it will not be denied that a slave state may itself own slaves. They may escheat to it, be taken in execution for debt, &c. Now, a free citizen of Massachusetts may enter the port of Charleston as a mariner, be seized, imprisoned, and then sold into slavery for non-payment of jail fees. The State of South Carolina may purchase him. He may escape and return to Massachusetts. South Carolina may then claim him under this Fugitive Slave law.

In such a condition of things, a “controversy” will exist between “a state and a citizen of another state.” The commissioner can take jurisdiction of that case as well as of any other. And who will be bold enough to say that a trial and judgment by him, delivering up the respondent to bondage, would not be the exercise of “judicial power” in a controversy between “a state and a citizen of another state”?

The argument, that if the commissioner under the Fugitive Slave law exercises “judicial power,” then masters in chancery, commissioners of bankruptcy, &c., exercise it, is answered by a word.

Masters in chancery assist the court in preparing questions for decision, but they decide nothing. Every act of theirs may be reheard and reëxamined by the court at the pleasure of either party. They enter up no judgment; they issue no execution. They may express the opinion that the plaintiff or defendant is entitled to recover a certain sum of money, or to hold the chattel in dispute; but neither of them can touch it. They are “judges” in no legitimate sense. They exercise no part of the “judicial power.” The court may call upon them to state an account between parties, as it calls upon a clerk to make up the record, or a servitor to bring a law book, or asks a friend to cast up the interest on a promissory note. Such are the functions of a master in chancery, whose acts have no legal validity until assented to by the parties or sanctioned by the court.

So with regard to commissioners of bankruptcy. Every act they were ever authorized to perform derived all its legal force from the consent of the parties, or from the verdict of a jury, before whom it had been contested, or from the judgment of the court,—as may be seen at a glance, by reference to the acts creating them.

As to the supposed “judicial power” exercised by commissioners, under a treaty to determine who are rightful claimants, and to how much each one is entitled, it is almost too obvious to remark, that as no citizen can bring “suit” against the government, the “judicial power” does not “extend” to such a case, and the suggestion is puerile.

A word more will close my remarks on this topic. We have seen that a decision of the commissioner adverse to the respondent delivers him over into absolute, unconditional slavery. But the prevalent opinion is, that a decision in the respondent’s favor is no bar to a subsequent trial of the same person on a new “claim.” It was actually held in Long’s case, in New York, where the claimant apprehended that the decision of the first commissioner would be against him, that he might abandon proceedings before that tribunal and resort to another. He did so, and prevailed. That is, the claimant may select, from among an indefinite number of irresponsible magistrates, the one whose ignorance or whose turpitude may promise the best chances of success. But if, from any cause, he should apprehend defeat, then, and before the final judgment is pronounced, he can withdraw his suit and commence anew before another magistrate, and so throw the dice of the law again and again, until, by the very doctrine of chances, he shall ultimately succeed. Such want of equity between the parties stamps this law as infamous,—for inequity is iniquity.

An argument in favor of the surrender of alleged fugitives from service under this law has been derived from the provision for the surrender of fugitives from justice. But the difference between the cases is world-wide. In regard to slaves, the constitution says,—“No person HELD to service,” &c.; but in regard to criminals, its language is, “A person CHARGED,” &c.

Now, who can avoid perceiving the difference between the legal force of the words “held” and “charged”? The obligor in a bond is “HELD and firmly bound.” The grantor conveys an estate “to have and to HOLD” to the grantee and his heirs and assigns forever. So a lessee is to “HOLD” for the term specified. A man is HELD to answer a charge, &c., &c. In all these cases the word “hold” implies a perfect obligation or certain liability. But a man is “CHARGED” with an offence when a grand jury has found an indictment against him, or when a competent person has made the requisite oath. It is not enough that a man be charged to be held to service. He must be proved to be held, or he remains free; the court must know that he is so held before they are authorized to surrender him. And how, under our constitution, can the court know such facts as convert a presumptive freeman into a slave without a trial by jury?