compared with the surrender of a fugitive from justice; and because
the supreme executive of a state is required by the law of 1793 to
surrender fugitives from justice, it is claimed that any commissioner
may surrender fugitives from service, _without liability to question
or reëxamination by any human authority_. But there is a world-wide
difference between the cases. When the fugitive from justice is
delivered up, he is delivered into the custody of the law. Legal
process must have been commenced against him in the state from which
he fled. He is returned, that the proceedings thus commenced may be
consummated. He is never intrusted to private hands. The shield of the
law is continued over him. After arrest, he is merely transferred from
the hands of the law in one state to the hands of the law in another
state. He is transferred, not to evade trial, but to have one. But the
alleged slave is delivered up, not into the custody of the law, where
his rights might be adjudicated upon, but into private hands; not into
the hands of a neutral or indifferent person, but into the hands of
a party interested to deprive him of all his rights;--if he be not a
slave, then into the hands of a man-stealer. Mr. Clay saw this, and
his plan provided that the alleged fugitive should be sent home _to be
tried_. But the south grew bolder and bolder, until a law was passed,
by which one class of men have less security for their freedom than
another class have for their cattle.
It is nugatory to say, that when an alleged fugitive has reached
his claimant’s domicile, he may there petition for freedom. Should
he do so, it would be an independent and original proceeding,
instituted under _another_ government. Not only would the jurisdiction
be different, but the character of the litigants would be
changed,--plaintiff for defendant, and defendant for plaintiff. The
old case is not to be reheard, but a new one tried. Indeed, a very
intelligent writer on this subject has queried whether the certificate
of the commissioner may not be pleaded as an estoppel. I say, then,
that, in effect, the commissioner, by this act, has _original_,
_final_, and _exclusive_ jurisdiction of a “case” “in law,” “arising
under the constitution and laws of the United States.” This is the
very function of judges and courts. This is the identical power which
the constitution of the United States vests in judges who are to be
nominated by the President, confirmed by the Senate, to hold office
during good behavior, and to be compensated by fixed salaries.
Again, the act consigns a man to bondage, without crime, on evidence
which he has had no opportunity to controvert. The claimant must prove
three facts before the commissioner,--1st, That the person named in
the warrant owes the claimant service; 2d, That he has escaped; 3d,
Identity.
Now, according to the act, the first two points,--the facts of owing
service and of escaping,--may be proved behind the respondent’s back.
This proof may be procured against the alleged fugitive without any
notice to him, actual or constructive; without the possibility of his
encountering it, or disproving it, however false it may be. If this
be not depriving a person of his “liberty” “without due process of
law,” what can be? Why not make the whole case provable behind the
man’s back,--in another state,--a thousand miles off,--and spurn the
forms of justice, after having spurned its substance? This binding of
a man by evidence obtained without his knowledge, is unknown to the
common law, and abhorrent to it. It is never permitted, not even to
deprive the worst man of the humblest right. Our laws save the rights
of all parties under disability. Who is under so great a disability
as he who knows nothing, and can know nothing, of what is going on
against him? Notwithstanding the constitution declares that “full faith
and credit shall be given in each state to the public acts, records,
and judicial proceedings of every other state,” yet it has been held
that a judgment obtained in another state, without notice, shall not
prejudice the party against whom it was rendered. Such an act violates
the first principles of justice. All securities for the life, liberty
and property of us all, are swept away if such principles can be
established.
Once more: The act says the certificate “shall be conclusive of the
right of the person or persons in whose favor granted, to remove
such fugitive to the state or territory from which he escaped, and
shall prevent all molestation of such person or persons, by any
process issued by any court, judge, magistrate, or any other person
whomsoever.” According to this, the certificate is a talisman which
protects its holder against all law, all evidence, and all judicial
power. A kidnapper may seize a free man in Boston, buy evidence that
he owes this mysterious _debt of service_, obtain the requisite
certificate against his victim, and then neither the mother who bore
him, nor the elder brothers and sisters who grew up with him, nor the
neighbors who have known him from his cradle, nor the minister who
baptized him, can testify that he is free; nor can all the judges and
courts in the commonwealth stop the man who is bearing away one of
their fellow-citizens to a bondage worse than death, to inquire into
his title. He is in a charmed circle that neither law nor justice can
enter. Do you ask where is that old, time-honored writ of _habeas
corpus_, for which martyrs have died and rivers of blood have flowed,
and which the constitution declares SHALL NOT be suspended “unless
when in cases of rebellion or invasion, the public safety may require
it”? The answer is, that the writ of _habeas corpus_ is nothing but
a “process issued” by a court, and the act declares that the holder
of the certificate shall be exempt from all “molestation,” “by any
process issued by any court.” In one word, the law contains a
provision that its own constitutionality shall not be brought into
question; at least, until its victim reaches the place of his bondage,
and is beyond the reach of rescuing hands.
Now, even if this act does not commit such gross infractions of the
constitution that the courts will set it aside, yet it would seem as
though no sane man could help seeing that it wars upon all our ideas
of justice; that it repudiates and scorns all the great securities
for freedom which wise and good men, for centuries past, have given
their labors, and their lives, to establish; and that it converts the
vast machinery of the social state, not into the means of protecting,
but of assailing, the liberties of the citizen. As to the appointment
of commissioners, it gives us none of the constitutional securities
that improper men will not be invested with these high prerogatives
against our dearest rights; and as to the manner in which evidence
may be procured, it resembles the missives which the inquisition, in
olden times, sent forth against heretics, to seize without law, to try
without defence, and to punish without mercy or hope. It resembles the
_lettres de cachet_, which, before the great revolution, the despots of
France gave, _in blank_, to villain courtiers, and villain courtesans,
to be filled up with the names of those persons whose perdition they
would compass.
There are other points in this bill whose enormity only needs to be
stated to be seen and abhorred. One of them is so unspeakably mean and
contemptible, that all northern men must feel the insult more keenly
than the wrong. It provides that if a commissioner will doom a man to
bondage, his fee shall be twice as much as though he restores him to
liberty. Now, every body knows that claimants will rarely, if ever,
appear before commissioners without a _prima facie_ case. If there be
no defence, the proceedings will be brief. But a case of discharge
presupposes a defence and a trial. A case of discharge, therefore, will
probably occupy as much time as half a dozen cases of surrender. Yet
for this greater labor, the commissioner is to have but half price. In
assailing all we love of liberty, could not the framers and supporters
of this measure have forborne to wound us in all we feel of honor!
The cases are to be “heard and determined,” as they were under
Robespierre, “_in a summary manner_.” Shakspeareenumerates the “law’s
delay” among the causes of suicide. Under this act, real suicides will
doubtless be occasioned by the _law’s despatch_.[15] This “summary
manner” contains the sum of wrong. Does not every lawyer and every
client know that when an action is brought for the unfaithful execution
of a contract, in building a house or a ship, or for the balance of
an account, or for flowing lands, or for defamation or libel, the
defendant needs weeks and often months to make ready for his defence.
His witnesses may be in another state, or abroad; it may be necessary
to examine ancient titles in registries of deeds or of wills, to make
surveys of premises, or investigations into character and conduct. It
often happens that when process is first served upon a man, he does not
know the grounds of his own defence. They may consist of facts which he
has forgotten, or of law of which he is ignorant. Our courts, acting
upon this well-known truth, have established a rule that a party,
even after he has had fourteen days’ notice, shall be entitled to a
continuance as a matter of right, unless under special circumstances;
and he may always have it on cause shown. I ask any defendant who
was ever forced into court to resist a claim of any magnitude or
difficulty, whether he was ready to do so, on the instant when process
was served upon him? Yet this is what the respondent must do under the
Fugitive Slave act. On the 26th day of last September, James Hamlet was
peacefully pursuing a lawful occupation in Water Street, New York, and
earning an honest support for his wife and children. In three hours,
hand-cuffed, in irons, and surrounded by armed men, he was on his way
to the house of bondage. No time was given him for procuring the aid of
counsel. He declared he was free, that his mother was a free woman, and
he a free man. But by another provision in the act, it is declared that
“in no trial or hearing under this act, shall the testimony of such
alleged fugitive be admitted in evidence.” In all other cases, within
the broad compass of the common or statute law of Great Britain or of
this country, a party litigant may give evidence pertaining to the
suit. In some cases, he may give evidence on the merits; in all cases,
he may make affidavit on interlocutory matters. A man who has been in
the state prison, a felon scarred with crime, may still make affidavit,
in his own case, under certain circumstances, though he can testify
neither for nor against any other person. But an alleged fugitive can
make oath to no fact, and under no circumstances, for delay or other
cause. It would conflict with that “summary manner” in which it is
deemed expedient to dispose of human liberty.
Look at this provision under the light of a few facts. In the case
of _Mahoney_ vs. _Ashton_, (4 Harris & McHenry’s Maryland Reports,)
the petitioner for freedom claimed that a maternal ancestor, _four
generations back_, who had been brought over by Lord Baltimore, in the
early days of the colony, was free; and, by an extraordinary chain
of evidence, he traced his descent from that free source. It was a
claim which any court in Massachusetts would have sustained without
hesitation.
Now how much evidence of history, of record, of parol, does the bare
mention of such a case suggest? Who could have been prepared to try
it in three hours; ay, as soon as he could be seized and hurried to a
lawyer’s office?
Among the alleged fugitives in the “Pearl cases,” so called, which
I assisted in trying in Washington, in the years 1848 and ’49, was
the family of Daniel Bell, consisting of his wife and eight or
ten children. The mother and children had been freed many years
before by deed of manumission, executed by their master in his last
sickness, and they had been reputed free ever afterwards. Soon after
the grantor’s death, the device was started of proving him to be of
“unsound mind,” and thus reclaiming the family to bondage. But the
magistrate who prepared the deed, witnessed its execution, and took
the acknowledgment, declared that he stood ready to testify to the
_competency_ of the grantor, and the validity of the instrument.
Years passed away and _he_ died. Immediately the heirs claimed the
family as slaves; and, after the loss of the deceased magistrate’s
testimony, proved the grantor of “unsound mind,” and so set aside
the deed and were adjudged owners of the _chattels_. On the ground
of newly-discovered evidence, application for a new trial was made;
but the family becoming alarmed lest they should be secretly seized
and sent to the south, attempted to make their escape on board the
“Pearl,” on the night of the 15th of April. Now, suppose that they had
succeeded, and that, after arriving in a free state, they had been
seized and carried before a commissioner, to be tried in this “summary
manner,” without even waiting for a crier to open the court, and
debarred from making affidavit that, in the city of Washington, there
existed evidence of their freedom. I will not waste words to point out
the impossibility of their defence, and the certainty of their doom!
He that hath ears to hear the cry of the oppressed, let him hear!
A few days before the close of the last session of Congress, I was
inquired of by a resident in Washington, as to the condition of a
family held as slaves in that city. I found they were free by the laws
of the District, but they did not know it.
Sir, throughout the Southern States, there are thousands and thousands
of reputed slaves, who, legally, and by the laws of those states, too,
in which they are held, are as free as the governor of Massachusetts,
or the chief justice; but, in their enforced and brutish ignorance, the
victims do not know it; and should they come to a free state, and be
there hunted, and seized, and carried before a commissioner, they would
be debarred from taking an oath as to facts which would furnish grounds
for a continuance so that their right to freedom might be established.
But, under such obstructions and embarrassments, liberty could not be
extinguished in a sufficiently “summary manner.”
According to the constitution of the United States, all _criminals_,
from the least to the greatest, are to be informed of the nature
and cause of their accusation; to be confronted with the witnesses
against them; to have compulsory process for obtaining witnesses in
their favor; and to have the assistance of counsel in their defence.
Yet here, always in the case of an _innocent_ man, oftentimes in the
case of a free man, there is to be no previous notice, no process for
obtaining witnesses, and no provision for counsel; and while the court
is forbidden to allow delay, without good cause shown, the party whose
liberty is at stake cannot make out that cause by his oath; but, with
the full knowledge in his own breast that he _is_ free, he must stand
dumb before the minister of the law that puts on his fetters.
I will not dwell at any length upon those portions of the act which
affect marshals and deputy marshals. If any man chooses not to hold
office under such a law, he can decline to accept it, or resign it.
It is, however, clear proof of wicked legislation, when humane and
conscientious men cannot hold the offices it creates. But the fifth
section contains a provision which is atrocious. It makes the marshal
or his deputy liable for an escape, whether made “with or _without_
his assent,”--that is, _at all events_. Though the alleged fugitive
should disable him, though the enemies of the country should capture
him, though the act of God should strike him down, though an armed mob
should commit a rescue,--yet he is still liable.
All civilized governments have statutes of limitations. Human welfare
requires that claims which have long been voluntarily acquiesced in,
should not be revived. Hence our laws bar a right of action, otherwise
incontrovertible, after that tacit abandonment of which the mere lapse
of time is proof. Personal rights are most generally abandoned by a six
years’ neglect to enforce them. Even real estate may be held, by twenty
years’ quiet possession, without other title. Crimes partake of this
exemption. With the single exception of murder, all crimes are barred
in Massachusetts by a six years’ delay to prosecute. But the Fugitive
Slave act knows no mercy or compassion of this kind. Unrelentingly
it fastens its clutch upon all cases. While life lasts, its fangs
strike into the flesh. The alleged slave may have been amongst us for
fifty years; he may have earned property, be married, and surrounded
by children. It is all the same. The inexorable certificate of a
commissioner remands him to bondage and despair.
The act not only remands him to bondage, but, under circumstances to
which there will be few exceptions, it orders that he be sent home at
the public expense. The constitution says, he shall be “delivered up.”
There the obligation of that instrument ceases. It is only the law that
adds, he shall be _carried back_. You and I, sir, must help pay the
costs of sending a fellow-being into bondage; when we are under no more
constitutional obligation to do so, than to pay the expenses of a slave
dealer who ships his cargoes direct from Africa.
But the bill has become a law, and the practical question now is,
how can the country be exculpated from the crime, and the dishonor.
For myself, I do not adopt the doctrine of forcible nullification. I
trust I shall never join a mob to resist a law, until I am ready for
revolution. The only true and enduring remedy is repeal. Those who
would forcibly resist the law, lose half their motive and impulse for
repeal; for if we abolish it without repealing it, it will be likely
to remain upon the statute book an eternal monument of the nation’s
disgrace. Let effort never cease, until the jury trial be obtained.
But this view of civil duty applies only to the _citizen_. It does not
touch the fugitive. One liberty the slave always has,--whenever he
deems it expedient, he may re-clothe himself in the rights which God
and nature gave him, and which, though they may be ravished from him,
can never be destroyed.
Until repeal, however, there is one opening for hope. If, as is said by
Mr. Crittenden, in the opinion already cited, “Congress has constituted
a tribunal with _exclusive_ jurisdiction, to determine summarily,
and without appeal;” and if, as he further says, “the judgment of
every tribunal of exclusive jurisdiction, where no appeal lies, is of
necessity _conclusive upon every other tribunal_, AND THEREFORE THE
JUDGMENT OF THE TRIBUNAL CREATED BY THIS ACT IS CONCLUSIVE UPON ALL
TRIBUNALS;” then the whole case in all its bearings and relations, its
sources and its issues, comes before the commissioner; not even the
supreme court of the United States can interfere with him; and the
first question for him to “hear and determine” is, whether in truth
there be any such _law_, whether the whole disgraceful enactment be
not unconstitutional and void; and, therefore, whether his first and
only duty be not to dismiss the proceedings, and to “let the captive go
free.” I am not without hope that such will be the result; and thus,
that many conscientious and law-abiding men will be relieved from the
moral anxiety and conflict which now oppresses their minds.
Very truly, your obedient servant,
HORACE MANN.
FOOTNOTES:
[15] Since writing the above, I see that a man in New Jersey was so
overcome with fright at the rumor that slave-catchers were in town,
that paralysis and death speedily ensued.
SPEECH
DELIVERED AT DEDHAM, NOVEMBER 6, 1850, BY SPECIAL REQUEST OF A
CONVENTION OF WHIG VOTERS OF THE EIGHTH CONGRESSIONAL DISTRICT.
GENTLEMEN AND FELLOW-CITIZENS;
Having been specially invited to appear before this meeting, and
address it, my friend Mr. Russell has introduced me to you with many
kind words; and he has emphatically announced me as “your old friend.”
By so doing, gentlemen, he has touched a living chord in my heart;
for, as I look around me, I see many familiar and dear faces, and am
reminded that, in this town, I spent some of the happiest years of my
life. The sight of every object around me awakens remembrances of home.
Right opposite to us is the court house, in whose forum my feeble voice
was first raised, and where, I thank God, it was never raised in behalf
of the oppressor, nor on the side of any cause which I believed to be
wrong. Around this church in which we are assembled are the streets
where I used to walk, there is the pew where I used to sit, and all
around me are persons whom, for years, I saw daily and knew intimately,
and knew them only to respect. I feel assured that I do meet “old
friends,”--true men, who carry their hearts in their hands, and whose
lives are anchored to their convictions of duty.
Gentlemen, it is not without embarrassment that I address you.
Yet I might plead a high example for my course, if I were worthy,
in any respect, to mention myself in connection with my venerated
predecessor, who has made the past history of his country so luminous
with his wisdom and purity, and the name of this district which he
represented so honored and memorable. Would to God I could carry
you to some Pisgah height, and show you, under one view, the past,
the present, and the future, as he was wont to do, when, as was his
custom, he used to address you on those great topics which employed his
energies,--on the principles by which you ought to be guided, and on
the dangers to which you were exposed.
We have fallen, gentleman, on momentous times. Great events have
occurred, in rapid succession, both in this and in the other
hemisphere. There seems to have been a grand upheaving of the elements
of society from its deep foundations. We have been so often astonished
and amazed, by shock after shock, and convulsion after convulsion, that
I fear we are beginning to lose our moral sensibility to political
catastrophes, however grand or fatal they may be.
You know there is a spot near the Mississippi River famous for the
frequency of its earthquakes. A gentleman who visited there some years
ago, told me that soon after entering a hotel, at a place called New
Madrid, his attention was suddenly arrested by the rattling of the
crockery, the jarring of the household furniture, and the shaking of
the chair in which he sat. Starting up in trepidation, he sprang for
the door. “O,” said his landlord, “don’t be alarmed. _It is nothing but
an earthquake._” These phenomena, it seems, had become so common as to
have lost their power of exciting alarm. So, I fear, it is in regard to
the late commotions in Europe; and especially in regard to some of the
marvellous doings of Congress in our own country. From their astounding
character, and their rapid succession, I fear we are becoming
insensible to their importance, like the inhabitants who dwell at the
base of Mount Etna, whom neither the rumbling of the mountain, nor
the lava rivers which pour down its side, can awake from their stupor,
until, like Pompeii or Herculaneum, they are buried in the ruins.
In the old world, things seem already to be settling back into
their former condition, and hopes are darkening into fears. In this
country, I still trust that we shall redeem something of the past,
and secure the future. Yet the events of the last few months are of
a disheartening character, if any thing could ever dishearten a true
lover of his country. It has been my fortune and duty to be in the
midst of these events. I have watched the tide of battle with sleepless
eye; and when Liberty at last was stricken down, my heart bled with
hers.
I believe I understand, gentlemen, what you wish me to do on this
occasion; and therefore I shall endeavor to lay before you, briefly
but impartially, the humble part which I, as your representative, have
taken in those events which have filled the hearts of good men with
alarm.
I would, however, premise a few words, in order to show how we have
come, step by step, to the fearful position we now occupy.