Mr. Webster “laments to see a public man of Massachusetts so crude and confused in his legal apprehensions, and so little acquainted with the constitution of his country, as these opinions evince Mr. Mann to be.” Yet he points out no error of opinion. He specifies nothing as unsound. Judgment and condemnation alone appear. He seems to have taken it for granted that he had only to say I was guilty, and then proceed to punish. I protest against and impugn this method of proceeding, by any man, however high, against any man, however humble.
When Mr. Webster penned his “lamentations” over my crudeness, confusion, and ignorance, he doubtless meant to deal me a mortal blow. The blow was certainly heavy: but the question still remains, whether it hit. Polyphemus struck hard blows, but his blindness left the objects of his passions unharmed.
But wherein do those erroneous “opinions” consist, which Mr. Webster does not deign to specify, but assumes to condemn? Fortunately, in writing the sentence which he quotes for animadversion, I followed the precise meaning of Judge Story, as laid down in his Commentaries; and in regard to the only point which is open to a question, I took the exact words of that great jurist. He speaks of “the right of a trial by jury, in civil cases,” as an existing right before the seventh article of amendment to the constitution, which preserves this right “in suits at common law,” had been adopted. (3 Comm., 628.) Instead of transcribing Judge Story’s words, “in civil cases,” which present no distinct image to common minds, I supposed the every-day case of litigation respecting a horse, which is a “civil case;” and this difference of form is the only difference between my language and that of the learned judge. I can wish Mr. Webster no more fitting retribution, after reposing from this ill-tempered attack upon me, than to awake and find that it was Judge Story whom he had been maligning.
Does not the authority of Judge Blackstone also support my position? He says,—
“Recapture or reprisal is another species of remedy, by the mere act of the party injured.... But as the public peace is a superior consideration to any one man’s private property; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons, it is provided that this natural right of recaption shall never be exerted, where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, should he be feloniously stolen; but must have recourse to an action at law.”—Comm. 4, 5.
But the opinion expressed by me on this point does not need the authority of any name to support it; and the illustration which I gave is not only intelligible to every sensible man, but is also apposite. I said “a man may not lose his horse, [i. e. his property in a horse,] without a right to this trial.” Mr. Webster’s comment is, that this case, “if it have any analogy to the matter,” means, that if a man’s horse “stray into his neighbor’s field, he cannot lead him back without a previous trial by jury to ascertain the right.” Was ever the plain meaning of a sentence more exactly changed about, end for end? Mr. Webster may pitch somersets with his own doctrines, but he has no right to pitch them with mine. I said a man may not lose his horse, or his property in a horse, without a right to the trial by jury. He says I said, a man cannot find or retake a lost horse, without a previous trial! Dulce est desipere in loco. Or, it is pleasant to see a grave senator play upon words;—though there should be some wit to redeem it from puerility.
But the childishness of this criticism is not its worst feature. What is the great truth which Mr. Webster and his apologists attempt here to ridicule? It is this: While every man amongst us, in regard to any piece of property worth more than twenty dollars, of which violence or fraud may attempt to despoil him, has a right to a trial by jury; yet a man’s freedom, and that of his posterity forever, may be wrested from him, as our law now stands, without such a trial. Does not this hold a man’s freedom to be of less value than twenty dollars? If two adverse claimants contest title to an alleged slave, whose market value is more than this sum, each is entitled to a jury to try the fact of ownership. But if the alleged slave declares, here, in Massachusetts, that he owns himself, he is debarred from this right. And this truth, or a common illustration of it, Mr. Webster and his apologists think a suitable topic for sneers or pleasantry! A French proverb says, that for a man to kill his mother is not in good taste. I trust the moral and religious people of Massachusetts have too much good taste to relish jokes on such a theme.
Again; I said that Mr. Butler’s bill “derides” the trial by jury. By that bill every commissioner and clerk of a United States court, every marshal and collector of the customs, and the seventeen thousand postmasters of the United States, are severally invested with jurisdiction and authority in all parts of the United States, to deliver any man, woman, or child in the United States, into custody, as a slave, on the strength of an ex parte affidavit, made any where in the United States. This affidavit may have been made a thousand miles off, by no one knows whom, and certified to by a person who never saw or heard of the individual named in it. A forged affidavit, or a fictitious affidavit, would often answer the purpose as well; for how difficult, and in many cases, how impossible, to prove its spuriousness. Did oppression ever before conceive such a tribunal, so countless in numbers, so ample in jurisdiction, so terrible in power? Had a bill similar to this been proposed in the British Parliament, from 1763 to 1776, what would our fathers have said of it? Yet this bill, with some kindred amendments, heightening its features of atrocity, Mr. Webster promised “to support, with all its provisions, to the fullest extent.”
What aggravates the wrong, is, that the cruelties of the measure will fall upon the poor, the helpless, the ignorant, the unfriended. The bill would have been far less disgraceful, had its provisions borne upon the men who should pass it; because, in such case, there would have been a touch of equality. Now, if this bill does not “deride” all guaranties for the protection of human liberty, it is only because my word of reprobation is too weak. It is only because one needs “to tear a leaf from the curse-book of Pandemonium” in order to describe it by fitting epithets.
Another remarkable feature of Mr. Butler’s bill is, that it provides no penalty whatever for any one who shall abuse, or fraudulently use, the dangerous authority which it gives. It furnishes endless temptations and facilities for committing wrong; it imposes no restraints; it warns by no threats of retribution.