Slavery: letters and speeches

by Horace Mann

Now, consider that the general right of trial by jury, in cases of life, was expressly secured by the constitution as originally adopted; that, somewhat more than three years afterwards, the same right was expressly secured for property, in suits at common law, whenever the value in controversy should exceed twenty dollars; and then say whether there is not the strongest implication in favor of the same right, in cases of human liberty, which is so much more precious than life and property combined. I do not here say it is an implication that binds the courts in administering a law. That is not the point under discussion. But is it not an implication that binds the legislator, so that when legislating on the subject, he cannot consciously and wilfully abandon it without infidelity to his oath? I do not believe that many men from the free states will ever be found in Congress who will not take this view of the subject. Indeed, not a few of the best lawyers and jurists have held that the implication binds the courts; and therefore that the statute of 1793 is unconstitutional.[11]

Mr. Webster treats the two cases, of fugitives from justice and fugitives from service, alike; although one can almost adopt his own language, and say that “nothing is more false” than that they are alike. In regard to the first class, the constitution says, a person “charged” with treason, &c.; but in regard to the second class, it says no person “held,” &c.

According to the obvious intent of this language, the alleged fugitive must be proved to be held, bound, obligated. It is not enough that he be charged to be “held” to service, though it is enough that a man be “charged” with crime. To bring the first case within the legal category of the second, its terms should be, “a person guilty of treason,” &c., shall be delivered up. Were such the phraseology, would any one doubt that proof of guilt should precede delivery, and that there could be no other foundation for it?

Mr. Webster says, “perhaps the only insuperable difficulty” to a trial by a jury, “has been created by the states themselves.” Suppose this to be so, I would ask whose duty is it to act first,—that of Congress to provide the trial, or that of the states to remove the impediment? Shall the states repeal their laws first, and leave the liberty of the citizens in jeopardy; or shall not Congress legislate first, and secure that liberty? Which is of the greater importance, that the owner should recover his slave, or that the citizen should retain his freedom? I answer according to the language which the criminal law uses respecting guilt and innocence, that it is better that nine hundred and ninety-nine, that is, an indefinite number of slaves should escape, than that one free man should be delivered into bondage.

Besides, I think no state legislated on the subject for the protection of its own citizens, until 1842. This was after Congress had neglected, for more than fifty years, to do its duty. Why, then, should Mr. Webster cast the blame upon the states which forbore for more than fifty years to act protectively for themselves, when Congress, of which he had been a leading member for nearly forty years, had endangered, instead of securing, the liberty of their citizens? When he said that “every member of every northern legislature is bound by oath to support the constitution of the United States,” why did not the retort suddenly rise to his mind that he was bound by oath not less than they; and that his oath embraced the men that owned freedom, not less than the men that owned slaves? Besides, he charges only a part of the free states with being guilty of unjust legislation. Shall the innocent states suffer because of the others’ offence? Rather shall not Congress first supply the means of protection to the citizens of all?

It seems to me, too, that the fourth amendment has an important “bearing upon the subject,” because it shows that the master-thought of our fathers, in forming the constitution, was to secure the liberties of the citizen. It provides against “unreasonable seizures” of “persons.” I suppose the main idea of this amendment was to secure the citizen against “unreasonable seizure,” even in cases where he should afterwards, and at some time, be brought to trial according to the forms of the common law. But what “seizure” can be more “unreasonable,” than one whose object is, not an ultimate trial, but bondage forever, without trial? Can mortal imagination conceive of any seizure less entitled than this to be called “reasonable?” With what indignation did our fathers frown because they were transported beyond seas to be tried; yet, by our present law, and by the law which Mr. Webster promises to support, a free man may be transported, if not beyond seas, at least beyond lands, and beyond states, not to be tried, but to be held in slavery forever without trial. If a free citizen of Massachusetts should be seized and plunged into a Massachusetts prison, to be kept there for life; and his children, as a consequence of his fate, were put into the same, or into other prisons, as fast as they were born, to be also kept for life; and such was the original object and avowed purpose of the seizure, would not this conflict a little with the “spirit” of the fourth amendment? And does this proceeding conflict with this “spirit” any the less, because the prison is a southern rice swamp, or cotton field, where the nearest door or outlet of escape is more than a hundred miles from the spot of confinement? In common law actions, trover, detinue, replevin, &c., &c., the trial is to be in the vicinage, except there is some overpowering reason for changing the venue, or place of trial. But here is a transfer of the party, not for a trial, but for evading a trial.

I submit, then, to the public, that here are three provisions of the constitution, each one of which does have “a bearing on the subject.” Each strengthens the other. They form a triple implication, if not a trinoda necessitas, which no man, however powerful he may be, can break.

The argument which the lawyers call ab inconvenienti,—the argument from inconvenience,—has been pressed into the service of the slaveholder to endanger the liberties of the citizen. I answer, there are two sides to this argument; nor was it wise in the slaveholder, or his northern friends, to suggest it. It seems to me quite as inconvenient for a free man to lose his liberty, as for a slaveholder to lose his slave. If a southern man sues a northern one for the value of a bale of cotton or a barrel of rice, must not the plaintiff await the next term of the court before he can enter his action, abide by the rules of the court respecting continuances, and submit to the order of business in taking his turn before a jury? To obviate this inconvenience, has any legislature or any court ever proposed to set aside or annul, at once, all the securities by which we hold property and life? And how stands the question respecting evidence or proof? If difficult for a slave claimant, from Texas, to prove title to his slave in Massachusetts, how infinitely more difficult for a citizen of Massachusetts to prove title to himself in Texas. But Mr. Webster says there are independent courts at the south, “always open and ready to receive and decide upon petitions or applications for freedom.” Suppose this to be true; how is a man or a woman, whose master knows that he or she is free, to get to the courts? Mr. Webster seems to think that as soon as a kidnapping slave dealer shall transport his human prey to the south, he will at once take him to, or allow him to go before a court of justice, or will sell him to some brother Samaritan who will do so. Does not every body know that any man, who is capable of the enormous guilt of seizing or buying a freeman, will make it impossible for that freeman to regain his birthright?

Mr. Webster says, persuasively, that the alleged slave “is only remitted, for inquiry into his rights, to the state from which he fled.” But suppose he had never “fled,” but was demeaning himself as a peaceable citizen, under the solemnly pledged protection of the government, on the soil where he was born! This is the false idea that underlies the whole of Mr. Webster’s seductive letter, that under such a bill as Mr. Butler’s, nobody but a slave would ever be arrested.

I have no doubt that what Mr. Webster says about southern courts being “fair and upright,” is very generally and extensively true; but I have had a little personal knowledge of southern courts, and I have no hesitation in saying that there has been one, at least, before which, if a slave were suing for his freedom, and any popular clamor against him should exist, he would have no more hope of obtaining his liberty through the “fairness” of the court, than, if thrown overboard in the middle of the Atlantic ocean, he would have of saving his life by swimming ashore.