Slavery: letters and speeches

by Horace Mann

By the sixth section it is made the duty of the “court, judge, or commissioner,” “upon satisfactory proof being made by deposition or affidavit, in writing,” “or by other satisfactory testimony,” “and with proof, also by affidavit, of the identity of the person whose service or labor is claimed,” “to make out and deliver to such claimant a certificate,” &c.

And the tenth section of the act declares that the transcript of a record “taken in any state or territory, or in the District of Columbia,” and “produced in any other state, territory, or district,” and being there “exhibited to any judge, commissioner, or other officer authorized to cause persons escaping from service or labor to be delivered up, shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in said record mentioned.” “And upon the production of other and further evidence, if necessary, either oral or by affidavit, of the identity of the person escaping, he or she shall be delivered up to the claimant.”

Here, then, is a provision unknown to the common law of England, or to any colony, or people, or tribe that ever claimed the common law of England as their inheritance; unknown even to the star chamber, or high commission court; unknown in the bloodiest reigns of the bloodiest tyrants that ever sat upon the English throne; unknown to those judicial villains whom Lord Campbell calls “ruffians in ermine”—incorporated into the code of a republican government. Evidence, which may consign to slavery a man who is ostensibly and presumptively free,—free by the laws of the state where he is, and free every where by the law of God and humanity,—may be prepared in his absence, without any notice to him, and by any means of perjury or subornation of perjury to which guilt may resort, and this evidence is made legally sufficient to doom a fellow-being to relentless bondage. Notwithstanding those remarkable clauses in the constitution which provide that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial,” “be informed of the nature and cause of the accusation,” “be confronted with the witnesses against him,” “have compulsory process for obtaining witnesses in his favor,” “and have the assistance of counsel for his defence;” yet Judge Story comments upon them in a spirit of dissatisfaction and sorrow; “for,” says he, “unless the whole system [of the common law] is incorporated, and especially the law of evidence, a corrupt legislature, or a debased and servile people, may render the whole little more than a solemn pageantry.” (3 Com. 662.) In speaking of a “corrupt legislature,” he seems to describe what this Congress has done in enacting the Fugitive Slave law at its last session; and, in speaking of a “debased and servile people,” he speaks of just such a people as the advocates and champions of this law are now striving to make the people of the United States become!

The right of cross examining witnesses is a common-law right, appertaining to all kinds of trials. It is a right without which all trials are but mockery. It is oftentimes a hardship to be confronted with witnesses of whom one knows nothing; but to be debarred from all opportunity of getting, by cross questioning, at the knowledge that is in them; to be debarred from the right of showing that they are incompetent even to folly, or corrupt even to wilful perjury, this is a barbarity unknown to any code in the civilized world, save to the code of the United States of America. It is what even barbarians might be ashamed of. It is offering bounties and premiums on villany, and turning the courts into brokers’ offices for perjury. Under such a law, is there a single colored person at the north who can rise to his labor in the morning, or lie down to his repose at night, with any feeling of security that avarice and false swearing may not then be at work for his destruction? Who can wonder, if he is tormented in his nightly dreams by images of the man-stealer, in far off regions, plotting for his ruin? Who can wonder if, in his city residence, he starts as he turns the corner of every street; or, in his rural home, if he shudders at the rustle of every leaf, lest some kidnapper should spring from his ambush to seize him? That sense of personal security which every honest man is entitled to feel, this law abolishes. The virtuous man cannot rely upon his government, nor the pious man upon his God, for earthly protection. For him the Prince of Darkness has obtained the ascendency in the affairs of men, and offers impunity to guilt, while protection is withdrawn from innocence. The life of such a man is a perpetual agony of alarm for himself and for his family. A cloud charged with lightning is forever suspended over his head, and no genius can devise the means to turn aside its bolts.

Sir, before God, I believe that, in the judgment of an impartial posterity, this method of taking evidence, by the cruellest of means and for the wickedest of purposes, will be held as atrocious and as execrable as that horrid method of extracting evidence by torture, which once prevailed, but which now even half-civilized nations have abolished. A brave heart could withhold a false confession, even upon the rack. With the images of wife and children before the eyes, martyrdom for their protection has been sweet. But there is no man whom God ever made who will not tremble, and stand aghast with consternation, with the conscious knowledge in his mind that he, his wife and children, and all that he holds dear upon earth, are at the mercy of every pirate-hearted villain between the Atlantic and the Rio Grande; nay, that the government offers inducement to foreign assassins to come here, where, with less risk, they can make more money by false swearing and judicial kidnapping than they could at home by murder and robbery. Better, a thousand times better, had the constitution allowed the citizen “to be compelled to be a witness against himself,” and laid its prohibitions upon the fabrication of testimony against him in his absence.

The tenth section of the act declares that this evidence, thus obtained under a foreign jurisdiction and in the absence of the party, shall be “conclusive.” Now, the legal force and meaning of this provision is, that no amount or weight of evidence, no array of the most unimpeachable witnesses, not even the personal knowledge of the commissioner himself, who tries the case, though given under the sanction of an oath, which the law does not require him, as a commissioner, to take, shall be admissible to rebut this “conclusive” testimony. It is not made prima facie evidence merely against the respondent; it does not merely shift the burden of proof, so that the presumptive freeman becomes presumptively a slave, and must himself establish the freedom he would possess; but the law magnifies it into a species of proof that is “conclusive,”—that is, unquestionable, irrefragable, omnipotent,—like a miracle of God, not to be disputed. And this greatest of legal force is given to the worst kind of evidence. I say that a law so worthy of abhorrence, so truculent, so fiendish, is not to be found upon the statute book of any other civilized nation on the globe.

Such, too, has been the practical construction given to the law. I see by the papers that, in a late case which occurred at Detroit, the respondent declared himself a free man, and prayed for a continuance, to allow him to send to Cincinnati for his free papers. But the commissioner refused the delay, saying that, under this law, even free papers from the very man that claimed him would be of no avail; for where the law made the evidence conclusive, nothing could rebut it. Any counter evidence must always be admitted, on the hypothesis that the evidence already received may be controlled by it. But what an infinite absurdity to suppose that one mass or body of proof can be conclusive, over another which is conclusive. The law might just as well have made color conclusive, not only that the respondent was a slave, but that he ran away from the man who claims him. The law, as it stands, is as much a slave-making as it is a slave-catching law.

It declares that the proceedings shall be “summary;” and it provides a different rate of compensation, according as the decision is for freedom or against it. On what principle is this difference of compensation founded? Every body can see at a glance that when a claimant can prepare his evidence beforehand and in secret, he would be a fool not to make out a prima facie case. If the respondent adduces no proof, the case goes by default, and judgment, without delay, is entered against him. But if the claim is contested, then witnesses are to be examined, arguments are to be heard, evidence is to be weighed, legal questions to be investigated, and such a decision made as the commissioner is willing to pronounce before the world. It is only in the last class of cases, the contested class, that the respondent will be discharged. The cases, therefore, that result in freedom will ordinarily occupy sixfold or tenfold more time, besides requiring the exercise of more legal knowledge and ability, than those which terminate fatally to the respondent. Yet for decreeing the freedom of a man, the fee is but half as much as when a sentence of bondage is awarded against him. This surpasses the bribery of Judas by the high priests. They had not diabolical wit enough to present a contrast between right and wrong, as a special stimulus for committing iniquity.

The “summary manner” of trial provided for by this law, when considered in reference to rights so momentous, shocks every Anglo-Saxon mind. One’s blood must all be corrupted in his veins, before he can hear of it without indignation. It is the noblest attribute of our race, that we hold civil and religious liberty to be more sacred and more precious than life itself. Yet by what safeguards of constitution, of law, and of forms of practice, is life protected amongst us? There must be a presentment, by at least twelve sworn men, before a man can be held to answer to a charge by which it can be forfeited. Then come the traverse jury, the right of peremptory challenge, the assignment of counsel, the right to see the indictment beforehand, and to know the names of witnesses who are to be called against the accused, and compulsory process to insure the attendance of witnesses in his favor! What noble barriers are these against the oppression of a powerful government, and the malignant passions of powerful men! The probable culprit,—the man laboring under the most violent suspicion,—though caught with the blood-red dagger in his hand over the prostrate body of the victim, is guarded by all that human ingenuity has been able to devise; by all the knowledge that we can command this side of the omniscience, and by all the power this side of the omnipotence of God. Yet in the very community where these rights are reverenced and upheld, a man may be seized without notice, hurried to a tribunal without an hour for preparation, and then be borne away a thousand miles, where all that life has of hope and of enjoyment is taken away, and all that it knows of misery and of terror is realized.

Let me ask any man who ever had a case in court that was worth defending, whether he was prepared to meet it the first hour he had notice of its existence? A respondent’s witnesses may be resident in different states, and distances of hundreds of miles may intervene between him and them. His proof may consist of deeds, or wills, or records, which cannot be found or authenticated without delay. His defence may consist of matters of law, which the ablest counsel may require time and the examination of books to investigate. All these obstacles to instantaneous readiness may exist together, and yet the inexorable mandate of the law scorns his appeal for that delay on which his highest interests are suspended, and dooms him to bondage because he cannot achieve impossibilities. Under such a law, not one man in ten who will be arrested, even though he should be free, will be prepared to establish his freedom. A great portion of these outcasts from human justice, I doubt not, are better prepared for the summons of instantaneous death than for this summons of instantaneous trial.