Slavery: letters and speeches

by Horace Mann

The law also provides for another thing which the supreme court has expressly declared to be unconstitutional, or beyond the power of Congress to enact. It provides that any state court of record, or judge thereof, in vacation, may take and certify evidence which shall be “conclusive” in regard to two of the three points which are made sufficient by the law to prove a man a slave. Thus, the two facts of slavery and of escape may be “conclusively” proved by the certificate of a judge of a state court, so that the judge before whom the alleged fugitive is brought shall, in regard to these facts, exercise only a mere ministerial function. Now, he who has power to take and authenticate evidence, which it is predetermined shall be “conclusive” in the case, has power to decide the case. This, in its nature and essence, is a judicial power; yet this power is given by the act to any state court of record, and to any judge thereof in vacation. Contrary to this, however, the supreme court has said, “Congress cannot vest any portion of the judicial power of the United States except in courts ordained and established by itself.”—Martin vs. Hunter’s Lessee, 1 Wheat. 330. “The whole judicial power of the United States should be, at all times, vested in some courts created under its authority.”—Ib. 331. “The jurisdiction over such cases, [cases arising under the constitution, laws, and treaties of the United States,] could not exist in the state courts previous to the adoption of the constitution, and it could not afterwards be directly conferred on them; for the constitution expressly requires the judicial power to be vested in courts ordained and established by the United States.”—Ib. 335.

Yet, though it is expressly declared that Congress cannot vest any part of the judicial power of the United States in a state court, the state courts are empowered by this law to take and certify evidence, which is made “conclusive” in the case.

Look at the subject in another of its aspects. Here are some half million of free colored persons in the free states. They are unquestionably free. They possess, as fully as you or I, those prerogatives of freedom without which life ceases to be a blessing. Their freedom is guarantied to them by the constitution of the United States, and by the constitutions and laws of the states respectively in which they dwell. They certainly are a part of the people. In some of the states, as in Massachusetts for instance, the law knows no iota of distinction, in any respect, between a black man and a white man; between one of European and one of African descent. It is the noble privilege of a Massachusetts man to say, that, as all men are equal before the divine law, so are all men equal within our borders, before the human law.

Now, scattered among this half million, more or less, of free colored people in the free states, there are a few hundreds, or a few thousands if you please, of “fugitives from service or labor,” as the constitution cunningly and evasively phrases it; which, being interpreted, means, as the whole world knows, fugitives from toil, and fetters, and stripes, and agony; fugitives from ignorance and the thick darkness of the intellect; fugitives from moral debasement, and from that enforced pollution of body and soul that spares neither wife, nor mother, nor a daughter’s innocence; fugitives from the disruption of family ties, and from the laceration of all human affections; fugitives, in fine, from a heathenism of superstition and religious blindness into the glorious light of the gospel of Jesus Christ.

Now this free class and this fugitive class belong ethnologically to the same race. They speak the same language, and wear the same distinctive characteristics of feature and of form. All the unspeakable privileges, all the sacred titles and immunities of the one class are enshrined in the same complexion and in the same contour of person that attend the debasement and privation of the other. The vessels of honor and of glory are moulded into the same shape with the vessels of dishonor and of shame.

Now, after this debased class has been created by a wicked system of human laws, and after it is mingled with the free class, another law steps in and decrees that the former shall be remanded to their bondage. An awful decree! second in terribleness only to that which shall divide between the blessed and the accursed before the judgment-seat of God. Within the compass of human action, there never was an occasion that demanded more unerring justice and wisdom, that invoked more foresight and solicitude, that appealed more touchingly to every sentiment and instinct congenial to liberty, with which God has endowed and ennobled the soul of man, so to devise the law, if law there must be, as not to involve the free in the horrible doom of the enslaved. If, in the administration of penal laws, a knowledge of human fallibility has forced the maxim into existence and into practice, that it is better that ninety-nine guilty persons should escape than that one innocent man should suffer, ought not the same benign rule to be adopted in our legislation whenever there is a possibility of exposing the free to the fearful fate of the enslaved? But instead of this jealousy and circumspection, what have we? A law whose first utterance abjures the distinction between freedom and bondage; a law which brings the whole free colored population of the United States within the outer circles of the whirlpool of slavery, that they may be ingulfed in its vortex; a law which empowers every villain in the country, by fabricating false testimony at his own leisure and convenience, to use his own freedom in order to rob other people of theirs! I aver, that before any moral tribunal, where right and wrong are weighed in the balances of the sanctuary, there is not a felony described in the whole statute book that is more felonious than such a law.

It has become an axiom in the administration of justice,—an axiom slowly evolved by the wisdom of ages, but now firmly established and incorporated into the jurisprudence of every civilized community,—that the ethical policy of the law will tolerate no rule of action that opens the door to fraud or crime, but will even vacate solemn contracts between parties otherwise competent, in its jealousy and apprehension of wrong. Hence the law applicable to common carriers, which will not allow a man to exonerate himself from liability even by express notice, lest opportunity should be given for collusion and fraud. Hence, too, the principle of law which forbids an insolvent debtor to pay, or even to contract to pay, a bona fide creditor in anticipation of bankruptcy. Now, this principle applies with tenfold force to legislators,—withholding and repelling them from passing any law which may involve the innocent in the fate of the guilty, or the free in the bondage of the enslaved.

But the law violates a still deeper principle than these. I do not recollect the instance of a single northern man or northern press, utterly false to freedom, and venal as so many of them have been, that has expressed entire satisfaction with the law. They palliate it, they strive, by seductive party and pecuniary appeals, to beguile men into its support. They look outside of it for pretexts to hide its inherent baseness; but not one of them, so far as I know, has had the effrontery to justify it on its intrinsic merits. Even those northern men who voted for it have sought refuge from the storm of righteous indignation that burst upon them, by alleging that it was an essential ingredient in a system of measures, and entered, as a necessary element, into a desirable compromise.

When this language is translated, what does it mean? Simply this, and no more. California was admitted, and thereby certain political and commercial advantages were gained. This, in legal language, was the consideration. The Fugitive Slave law was passed, and thereby the rights of freemen, the property of men in themselves, all the household sanctities, all the domestic endearments of half a million of men, were put in peril. This was the equivalent given! A mere barter of the holiest interests for worldly advantages! And these interests were given away by men who did not own them, and therefore had no right to transfer them. The whites, north and south, played a game, and made the black people their stakes. Who authorized the law-makers to derive a benefit to themselves from doing this infinite wrong to others? Who gave them the terrible prerogative of making others suffer for their pleasure. I say it with reverence, but I still say it with emphasis, that we cannot conceive of God himself as having power to inflict vicarious suffering without the free consent of the sufferer! Yet the atrocities of this law are defended by those who made it, on the ground that they and other white men have secured benefits to themselves by sacrificing the liberty, happiness and peace of half a million of their fellow-beings of a different color. Cause and counsellor are alike; for the defence is as profligate as the act it defends.

I say, sir, it is the population of African descent in the free states which is specially put in peril by this law. Occasionally, indeed, persons of unmixed white blood are seized and enslaved under it. These cases, however, are comparatively rare. But suppose the reverse. Suppose circumstances to be such that the whole body of the white population should be as much endangered by it as the colored people now are. Suppose that not only the white voters themselves, but their wives and their children, were as liable to be “Ingrahamed,” as the blacks; suppose this, I say, and would the existence of the law be tolerated for an hour? Would there not be an uprising of the people, simultaneous and universal against it, and such a yell of execration as never before burst from mortal lips? The name of every man who had voted for it, or who should defend it, would be entered upon that apostate list at whose head stands the name of Judas. Christian and Infidel, Jew and Gentile, would execrate it alike. Why, then, if they would do this to avert such peril from themselves and their families, do they not do it when their sable brethren are in jeopardy? Alas! there is but one answer! From selfish considerations, from the love of wealth, or the love of power, they have discarded that heaven-descended maxim, “Whatever ye would that men should do unto you, do ye the same unto them.”