Slavery: letters and speeches

by Horace Mann

Let me test the soundness of this logic by a supposed case. There is, at the present time, a set of politicians amongst us, who are so alarmed at agitation that each one of them is a kind of Peter the Hermit, getting up a crusade to prevent it. Now, suppose Congress, “as a peace measure,” should pass a law authorizing the secretary of state to issue his warrant for the arrest and imprisonment, until the 4th day of March, 1853, or at least until after the next presidential nominations are made, of any person who shall be guilty of agitating on the wrong side of said peace measure, and should further declare that any jailer having such warrant from said secretary should be free from “all molestation by any process issued by any court, magistrate, or other person whomsoever.” Would it be a sound, judicial, and lawyer-like argument, in such a case, to say that Congress could not, and could not have intended to, violate the constitution, and therefore they had not violated it; and that if the warrant for commitment should appear upon the prisoner’s application for a writ of habeas corpus, it would prevent its issuing; if, upon its return, it would discharge it?

I think it impossible for any one to show that if the argument be good in the first case, it would not be good in the second; and good, indeed, in any case, however outrageously violating the constitution.

Again: suppose the 18th of September last, when the Fugitive Slave bill was approved, to have been a time “of rebellion or invasion,” when the public safety required the suspension of this writ, would not such words as end the sixth section of the act be sufficient in law to suspend it? The attorney-general seems to rely upon the fact that the Fugitive Slave law does not mention the habeas corpus. He cannot surely mean to say that the privilege of this writ could not be suspended, unless by name. Even slavery is not mentioned in the constitution by name. Suppose Congress, in a time of rebellion or invasion, to say, in regard to any class of cases which it might choose to specify, that if one person shall hold another under executive warrant, such warrant “shall prevent all molestation of said person or persons by any process issued by any court, judge, magistrate, or other person whomsoever;” could any man deny that such words would have ample force to suspend the privilege of this sacred and time-hallowed writ?

No! Heaven, and not the thirty-first Congress, be praised for it! Though this infamous Fugitive law could not suspend the habeas corpus, yet its words are adequate to do so. They purport to put the professional slave-hunter, as it regards the privilege from arrest, or “molestation,” on the footing of a member of Congress; and it would not have gone one iota further, in point of principle, had they made his person inviolable while going to seize his prey, and when returning with it.

If the argument of the attorney-general be sound, then the whole “privilege of the writ of habeas corpus,” under any corrupt law that any corrupt Congress may pass, will consist in the privilege of applying to a court for the writ, and being refused; or in suing out the writ, and having it quashed.

By the principles of the English law, the privilege of the habeas corpus attaches to all, whether bond or free. The words liber homo, says Lord Coke, extend to every one of the king’s subjects, “be he ecclesiastical or temporal, free or bond, man or woman, old or young, or be he outlawed, excommunicated, or any other, without exception.”—2 Inst. 55.

I now proceed to lay open for the abhorrence of mankind other deformities of this most odious law. In opposing a law, a distinction is to be made between the courts and the people; between the bench and the ballot-box. The courts can hear but one objection to a law. It may be impolitic, unrighteous, atrocious; but if it be constitutional they must sustain it. But before the tribunal of the people, a law may be impeached for any attribute of cruelty, oppression, or meanness. I denounce the Fugitive Slave law for all these qualities. In its scornful rejection of all those common-law principles of evidence which have been ratified by the wisdom of ages; in the “summary” and piratical haste of its proceedings, and in the indelible blood with which its judgments are recorded, I believe it has not a parallel in the modern code of any civilized people.

Should the courts, hampered by previous decisions, and habituated to the spectacle and the support of a cruel institution, pronounce this law to be constitutional, such a judgment would give new force to every reason why the people should demand its modification or repeal. It is not enough that it should be declared void by the courts as against the fundamental law of the land; it deserves to be branded by the people as abhorrent to humanity, to civilization, and to the gospel of Jesus Christ.

Look at its provisions in regard to evidence. The proof of three facts dooms the victim: first, that the person named in the warrant owes the claimant service; second, that he has escaped; and, third, identity.

Now, according to the law, all these facts may be proved in the absence of the party to be ruined by them. The whole case may be established by evidence taken behind the victim’s back, without notice to him, without knowledge, or possibility of knowledge, on his part. A freeman may be suddenly arrested, and dragged into court, and on certain papers being read against him, which he never saw nor heard of before, he may be ordered into the custody of officers, and hurried to a returnless distance from wife, children, and friends, reduced to the direst form of bondage the world ever knew, and at the expense of the very government which he has been taxed to support, and which in turn was bound to protect him. I will prove by a reference to the act itself that these atrocities are among its conspicuous features.