Slavery: letters and speeches

by Horace Mann

Second,—“That being such a case, belonging to the judicial power of the Union, it was for Congress to regulate and prescribe the remedy, the form of proceedings, and the mode and extent in which the judicial power of the Union should be called into activity.”

He then declares his full admission of both these propositions. And how does he answer the first one, which, at a blow, unseats him from his usurped bench? He says, “The counsel for the prisoner have insisted most strenuously on the first of these positions, but have said nothing with regard to the second.” And what need had the counsel to say any thing about the second, the first being admitted? The supreme court had said, and he acknowledged it, that every case like the one then before him was a “case arising under the constitution of the United States, within the express delegation of judicial power given by that instrument.” This was equivalent to saying that it was a case which could not be adjudicated upon by a commissioner, because a commissioner is not a judge,—is no court nor part of a court. The plain statement of the commissioner’s language is this: The supreme court declare that I have no jurisdiction in this case; but because the counsel said nothing about another point to be found in the opinion of the court, therefore I will take jurisdiction.

But again; this reply of the commissioner, that the counsel said nothing about the second point, (when he had acknowledged the validity of the first, which was fatal,) is not merely an evasion; it is founded upon a false meaning attributed by him to the second point. He says the court held that it was “for Congress to regulate and prescribe the remedy, the form of proceedings, and the mode and extent in which the judicial power of the Union should be called into activity.” Suppose it was for Congress to do this. Might they not transcend their power when doing it? and does not his admission of the first point prove that they have transcended their power?—the very point then in question. The two things cannot stand together. If the trial of the issue, “fugitive slave or not,” be, “in the strictest sense,” “within the express delegation of judicial power given” by the constitution, then this ministerial commissioner cannot exercise it, and Congress cannot empower him to exercise it. Besides, the decision of the court was made in 1842. The law, whose constitutionality they had then under discussion, was passed in 1850. Did the court in ’42 declare, or could they declare, that any law thereafter passed by Congress on this subject should be held constitutional? Did their decision act prospectively, and adjudge a law to be constitutional, which was to be passed eight years afterwards? So far from this, the points then under discussion,—namely, the power of a commissioner to adjudge a case more important than life or death, and the obligation of a commissioner to hear ex parte evidence, and to be concluded by it when heard,—these questions did not come before the supreme court in ’42, and have never been before the supreme court at all. But because that court had said, years before, that it belongs to Congress to prescribe the mode of recovering fugitive slaves, therefore, says the commissioner, if Congress should vest this power in commissioners, (and in slave traders or pirates just as well,) it would be valid. And because the counsel did not answer this point, the commissioner decides an admitted point, conclusive in their favor, against them.

But this is not all. After declaring, in the first part of the opinion, his full conviction that the delivery of an alleged fugitive comes within “the express delegation of judicial power,” he uses, farther on, the following language: “It would seem,” says he, “that it only remains to inquire whether the act of 1850 authorizes or requires any thing more than a summary ministerial proceeding in aid of the right secured by the constitution, namely, the right of removal.” And he holds that it does not. The act which, in the first part of the opinion, was acknowledged to belong, “in the strictest sense,” to the “judicial power,” has now ceased to be “any thing more than a summary ministerial proceeding.”

And again he says, “I have endeavored, in the foregoing discussion, to show that this is a summary ministerial proceeding,” &c. “If this be so, and I can entertain no doubt that it is,” &c. This sudden transmigration from a judge to an executioner, from one who acknowledged that the delivery of an alleged fugitive is an act of “judicial power,” to one who holds that it is NOT “any thing more than a summary ministerial proceeding,” may suit a disciple of Pythagoras, or the priests of the Hindoo religion, but it ill becomes an expounder of American jurisprudence.

I proceed to another point in the commissioner’s decision, namely, the nature and authority of “judicial power;” and when I have discussed it, I shall submit to your good sense whether I do him any injustice in saying that it is most perspicuously fallacious and lucidly absurd.

“In all governments formed upon the English model,” says he, “there is a certain class of inquiries, [powers?] judicial in their nature, but which are confided to officers not constituting a part of the judiciary, strictly so called.” (I do not like this substitution of the word “inquiries” for “powers.” If any thing under heaven should be called a power, the prerogative of sending a human being, presumptively free, into bondage, is surely one.) He then instances certain officers in Great Britain, who, though not judges, perform, as he says, certain judicial functions. A brief remark will suffice for this. Great Britain, having no written constitution, the current of its legislative enactments and its judicial decisions makes its constitution. If, then, it has been the prevailing practice of that government to confer any given description of powers upon any given class of officers, then that is what the British constitution allows and approves.

But we have a written constitution, and therefore are not to tolerate a law, (as in the case of this Fugitive Slave law,) which is repugnant to its fundamental provisions. By this constitution, all legislative powers therein granted are vested in Congress; executive power in a President, and judicial power in the courts. The constitution of Massachusetts is equally explicit. It says, “In the government of this commonwealth the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.”

In both these constitutions, the three functions of government, namely, to legislate, to adjudicate, and to execute, are expressly recognized; and the whole of their distinctive powers are lodged in separate departments. No mention is made of any hybrid or mongrel class, half judicial and half executive, or half ministerial and half judicial, or compounded of aliquot parts of each. Such an officer, under either constitution, would be a monster; he would hold the same relation to their legitimate functionaries that Caliban does to the human race; and, if created for executing the Fugitive Slave law, that half devil and half beast would be the fitting prototype.

The commissioner professes to have found a class of cases, both under our state and national constitutions, where powers, “judicial in their nature, and special in their purpose, may be confided to the determination of officers who are not judges.” On this point he has expended himself. Here lay the pressure and travail of his case. Seeing that, in deciding the great issue before him, “slave or free,” he was exercising judicial power, and in ordering an armed force to convoy the victim to his house of bondage he was exercising ministerial or executive power, (thus blending the functions which both constitutions have separated,) the commissioner felt that he must find some analogy or some precedent to cover up this obvious violation of all principle, or his argument was in ruins. It is in ruins; for he has found no such precedent, and cannot find any.