Slavery: letters and speeches

by Horace Mann

In the absence of all decent materials for an argument, the commissioner resorts to that ten times exploded position, that there is an analogy between fugitives from justice and fugitives from service. Where could he find a bandage of prejudice thick enough to blind him to the distinction, that the condition of delivering up the former is that he be charged with crime, while the condition of delivering up the latter is that he be held to labor, and that he owes service? How can it be said that a man owes service, until the fact of the indebtedness be proved? Such reasonable suspicion of guilt as justifies a grand jury in finding a bill of indictment is sufficient in the one case, but such positive proof as would require the court to enter up judgment and award execution is absolutely necessary in the other. The government demanding a fugitive from justice seeks possession of him for a trial, before a court and jury, of the question of criminality; but the claimant of an alleged fugitive from service seeks possession of him to avoid a trial, before a court and jury, of the question of freedom. The constitution requires that every person accused of crime shall be tried in the state and district where the crime shall be charged to have been committed; but it makes no such provision in regard to the alleged fugitive from service; and this injunction in the one case, and omission in the other, create the irresistible inference, that there is a difference between them, and that the alleged fugitive from service, according to all the analogies of the common law, is to be tried where he is found.

But there is one distinction which is broad enough and luminous enough to make a blind man see it. An alleged fugitive from justice is not adjudged to be a criminal previous to delivery, nor is he made a criminal, in the eye of the law, by the act of delivery. But the alleged fugitive from service is adjudged a slave, and made a slave by the certificate of the commissioner. The state receiving a fugitive from justice does not proceed forthwith to punish him. But the receiver of an alleged fugitive from service owns him, and may proceed to control him, and beat him, and rob him, and starve him, on the very instant that the commissioner puts the certificate into his hands. If any one cannot see this distinction, no act of the moral oculist can give him sight.

The papers inform us that when Sims was landed in Savannah, he was taken to jail and received the “usual reprimand,” which, as every body knows, is a flayed and blood-streaming back. By whose certificate was the nine-thonged cat laid on? Had he been a murderer or a pirate, would excoriation have been the first act of welcome on his arrival? No! Murderers and pirates would have had a jury. The law is beneficent to them; it saves its terrors for the slave. A man who will not see such a distinction as this, would excite no pity should he be made to feel it.

In treating this topic, the commissioner makes one assertion that seems insane. He says that, to authorize the delivery of a fugitive from justice, in order to his removal, “it must be proved that he has committed a crime.” Such a declaration was never made before, and I do not believe it will be ever made again. You could not find a lawyer south of Mason and Dixon’s who would venture to say this. Every body knows that the supposed criminal needs only to be charged with crime. It is the alleged slave who must be proved to be held to service before he can be constitutionally surrendered. But as though this was not absurd enough, the commissioner goes on to say, that though the alleged fugitive from justice must be proved, in the place where he is taken, “to have committed a crime,” yet, after his removal, he must be proved again to have committed it. How can a man be proved, in any legal way, to have committed a crime, without being confronted with the witnesses against him? Why, after having been so proved, is he put upon trial again?

As to all the commissioner says in denial of the right of trial by jury, I shall make but one or two remarks. I have argued that question elsewhere; and, until I see some answer to that argument, I have no occasion for repetition or corroboration of it. After using the word “person” some twenty times, to signify the President of the United States, electors, senators, representatives, United States officers, Indians, Africans, &c., the constitution declares that “no person shall be deprived of life, liberty, or property, without due process of law;”—this “due process of law” meaning trial by jury. This is one fact. Adam Gibson, Henry Long, Thomas Sims, and many others, some of them now acknowledged on all hands to have been free, have been sent into slavery without this trial. This is another fact. Now put these two facts together. No man shall be deprived of liberty or property, except by the jury trial. These men have been deprived of liberty and property without the jury trial. These are the two ends. Now fill up the space between them with what you please, and call it argument, law, gospel, or what you will, every body must see that it is nothing, and can be nothing but Mephistophiles’ jugglery. I dismiss this point with a single proposition: In Massachusetts, we know no legal distinction founded on color. Through all the gradations, from the person who has the preternatural whiteness of an Albino to one whom you can see in the darkest midnight, because he is so solid black,—all, all, under our constitution and laws, are alike freemen, or alike slaves. Notwithstanding the commissioner’s decision makes us all slaves, yet I maintain that, in the eye of the law, we are all free. How then can any one of us freemen be robbed of liberty and property, and turned into a slave, but by freeman’s proof,—that is, trial by jury? I acknowledge that after we have been proved to be slaves by freeman’s proof, then all the unutterable consequences of slavery follow, of course; just as when a man has been proved to be a murderer, the consequences of murder follow. But UNTIL, mark this, UNTIL a man has been proved to be a slave by freeman’s proof, he remains legally free. And a magistrate who takes jurisdiction of a proceeding by which a man may be deprived of liberty or property, without freeman’s proof, prejudges his victim, when he allows the first witness to be called, or the first paper to be read; and he might just as well do it, in a case of “life,” as in a case of “liberty and property.”

The next position of the commissioner which I shall notice relates to the right of Congress to make use of state courts to execute United States laws.

Now we have the express authority of the supreme court of the United States for saying that “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 Wheaton, 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. But the commissioner refers to a passage in Prigg’s case, in which it is said that “while a difference of opinion exists ... whether state magistrates are bound to act under it,

Waiving all exceptions to this doctrine, the utmost that can be made of it is this: that state magistrates may execute a law of Congress, unless forbidden by a law of their state; but when so forbidden, they cannot; and Congress can neither compel them to do so, nor annul a prohibitory law of the state, by giving validity to the act of the magistrate, performed in violation of the state law. Now mark the non sequitur of the commissioner’s logic. See how his premises belong to one subject, and his conclusion to another. Because a Massachusetts magistrate may execute a law of Congress, unless the Massachusetts legislature forbid him, but if so forbidden he can no longer do it, therefore, when the Massachusetts legislature has so forbidden him, Congress may send the magistrates of Georgia, or of any other state, into Massachusetts, to do what our own state had forbidden our own magistrates to do. I say “send the magistrates of Georgia here;” because Congress may just as well, and even better for us, authorize the magistrates of any state in the Union to come here, set up courts, and pass sentences which shall convey our citizens into bondage, as to stay at home and make records, which, when brought here, shall have the same effect. This, then, is the law-logic of the commissioner: Because a Massachusetts magistrate may aid in reclaiming an alleged fugitive on Massachusetts ground, unless forbidden by his state, yet, if so forbidden, then the legislatures of fifteen slave states may send their magistrates, or the acts of their magistrates here, to do the same thing. The state might prevent its own magistrates from aiding in this nefarious work, but this would be of no avail, for any one, or all, of fifteen sets of slave state magistrates may come and do the forbidden act.

Pierpont Edwards once said of a clergyman, that if his text had a contagious disease, the sermon would not catch it; and a blind man, being asked to describe his conception of color, compared it to a clap of thunder. But all their ideas were coherent and homogeneous compared with those premises and conclusions of the commissioner, by which the State Rights’ doctrine is expounded to mean, the right of one state to send its magistrates into another state, to do what the latter has lawfully prohibited its own magistrates from doing. South Carolina never claimed so much as this.

Under the first head, where it had been urged by counsel, that a freeman might have no opportunity to prove his freedom in the state from which he was alleged to have fled, because the claimant was under no obligation to carry him to that state, but might send him to the Cuban or Brazilian market, the commissioner shuts his eyes to these very probable consequences, and refuses to consider them; but under the fifth head, where an argument in favor of the slaveholder could be derived from consequences, he not only argues elaborately from them, but bases his judgment upon them.