LETTER
Accepting the Nomination of the Free Soil Convention for Representative to the Thirty-second Congress.
West Newton, Oct. 24, 1850.
Hon. C. F. Adams;
Dear Sir,—Your favor of the 21st inst., is this day received. It informs me that at a convention, (over which you had the honor to preside,) held at Dedham, on the 16th inst., I was unanimously nominated as a candidate for Representative to the thirty-second Congress of the United States. For the kind terms in which your communication is expressed, be pleased to accept my thanks.
This nomination places me in no new relation to the friends of freedom and humanity, wherever they may be found. I believe my name was first suggested to the voters of this district, (now nearly three years ago,) on the ground of my supposed devotion to the rights of men. The resolutions passed at all the conventions by which I have been nominated, and especially those passed so repeatedly and unanimously by our state legislature, have been in the nature of instructions; or, at least, of urgent advice and solicitation, in regard to my course on the great questions which have since agitated the country. My own convictions of duty so fully and entirely corresponding with the injunctions thus laid upon me, it has been easy for me to act in full conformity to the wishes of the great majority of my constituents and of the state, as those wishes have been repeatedly expressed. This renders any detailed exposition of expectations on your part, or of assurances on mine, unnecessary. I know that the leading and mostvalued article in your creed is the sacredness and security of human freedom. You know that I embrace this same article of faith with my whole heart. Other matters may be very important, but still are subordinate. Peculiar forms of organization are comparatively non-essentials. They are but means to ends; and, in regard to them, a large allowance is to be made for honest differences of opinion. But the natural right of every human being to the liberty which God has given him, until forfeited by crime of his own; the duty of our government to save every part of this earth over which it has jurisdiction from the direst of all earthly curses and the greatest of all social crimes,—the curse and the crime of slavery;—these are among the first of the dread accountabilities that attach to rational and immortal creatures.
I believe it also to be the duty of government to provide for the economical or pecuniary welfare of the people; to encourage industry by securing the rewards of labor to the laborer, and to discourage the competitions into which those who rule and control the impoverished, degraded, and almost brutified laborers of other countries, are striving to enter with our own people,—competitions, which, if not prevented, will, to a great extent, reduce our laborers to the wretchedness and privation of theirs. I believe that the money, and the comforts purchasable with it, which such competitions take from the workman here, do not go to improve the condition of the workman there, but are intercepted and appropriated by others. I make this statement of my views all the more readily, because I do not wish to receive an unintelligent vote from any man, and I therefore abjure all disguises and reserves. From my past votes and speeches in Congress my constituents know upon what principles and to what ends I have acted. To them I refer, and deem it unnecessary to say more.
Those who have taken the trouble to read what I have said on the floor of the House, must have seen that, though I have endeavored to express some stern truths, on vital subjects, in unambiguous language, yet that I have never uttered a word designed to inflict unnecessary pain upon our political brethren of the south; or to wound feelings which men may erroneously call honorable. I desire to pursue the same course at all times and with all men. The cause of liberty is one in which the true object of ambition is to make great principles most clear, and not to use harsh expressions respecting the conduct or opinion of others. It is as necessary that the man whom I would convince should be in a calm state of mind, as that I should be in such a state myself. Exasperation paralyzes judgment. The great points on which men and parties so vehemently differ, can only be permanently settled at the tribunal of reason and conscience.
Several laws were passed at the last session of Congress, on which I desired and designed to speak, in the name and on behalf of my constituents. But I was obliged to act upon them, under the silence enforced by the previous question. One of them, in particular, was so hostile to all the principles which history and reason had ever taught me, and so wounding to all the sentiments which I had ever imbibed from benevolence and religion, that I resolved to seize the first opportunity that should be offered to portray some of its features. I refer to the Fugitive Slave act, so called; and I trust this will not be deemed an unfitting occasion to lay bare a portion of its enormities. I will remark, that I had prepared an amendment for the security of our free colored seamen in southern ports, but was shut out from all chance of offering it. It struck me that if new and oppressive measures were to be taken to carry back alleged slaves to bondage, something should also be done to restore freemen to liberty.While the south were seeking new guaranties for men who claim to own other men, it was a time for the north to demand new guaranties for men who own themselves. But all debate was suppressed; property vanquished liberty; and a pure pro-slavery law was enacted, unadulterated by any alloy of freedom.
In regard to this Fugitive Slave act, is it not astonishing that men should ever ask the question, Does the constitutiondemandthe trial by jury? instead of the question, Will the constitutionallowit? The first is the tyrant’s question, granting no more than he is compelled to give. The last is the republican’s question, volunteering all that he can grant. In a free government, where the trial by jury is held to be the surest safeguard of personal liberty, the inquiry ought never to be, whether the constitutionsecures or necessitatesthis form of trial; for it is enough, if the constitution willpermitortolerateit. Instead of seeking evasions, and close constructions, and hunting among the musty precedents of darker times, in order to shut out the jury trial in cases of personal liberty, the true lover of freedom would ask only for an interpretation that wouldwarrantit. It would not be among his last thoughts; he would not wait until a stern necessity forced such a construction upon him; but his first desire and effort would be to find some legitimate reason for conferring it. He would not ask, in how few cases he must, but in how many he might, admit it. Yet this matter has been discussed, and is still discussed, on one side, as though we were bound to avoid the jury trial if we could; not as though we were bound to grant it, if by fair interpretation we might. It has been discussed as though the jury trial, to protect a man’s right to himself, were an evil; and as though the sudden seizure, “summary” adjudication, and speedy consignment of a fellow-being to bondage, were too precious a blessing to be put in jeopardy, by submission to twelve goodand lawful men. Not how much may we do for freedom, but how much can we do for slavery, has been the tacit assumption of the argument. But I pass by this for graver objections.
The Fugitive Slave act purports to confer judicial power upon persons who are not judges. It provides for the creation of scores and hundreds of officers called “commissioners,” and upon these, it is said on high authority, to conferoriginalandfinaljurisdiction on questions of human liberty. The constitution declares in whom “the judicial power of the United States shall be vested.” It shall be vested in “one supreme court, and in such inferior courts as Congress may from time to time establish.” No commissioner, nor any number of commissioners, constitute one of these courts. “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” A commissioner can be made and unmade on any day. These judges are to “receive for their services a compensation, which shall not be diminished during their continuance in office.” The commissioners are compensated by chance fees, and not by a fixed salary. The President nominates and the Senate confirms judges of the supreme and inferior courts. Commissioners are only the “inferior officers” who may be appointed by “the courts of law.”
I need not enforce the position, that the power which this act purports to confer upon commissioners isjudicial. It has all the attributes of judicial power. It isoriginal,final, andexclusive. They are “to hear anddetermine.” The fourth section says they “shall haveconcurrentjurisdiction with the judges of the circuit and district courts of the United States.” The attorney-general of the United States, in a written opinion, given by command of the President of the United States, says as follows: “These officers,[the commissioners,] and each of them, havejudicialpower, and jurisdiction to hear, examine, and decide the case.” “The certificate to be granted to the owner is to be regarded as the act and judgment of a judicial tribunal having competent jurisdiction.” “Congress has constituted a tribunal with exclusive jurisdiction to determine summarily, and without appeal, who are fugitives from service.” “The judgment of the tribunal created by this act is conclusive upon all tribunals.” The power of a commissioner, therefore, isjudicialin the highest sense,—in the sense of the constitution. His decision cannot be reheard or reëxamined by any judge, or by any court, of any state, or of the United States. In no other case can a commissioner perform any judicial act, or issue any executive order, whose validity may not be reëxamined in the court for which he acts, or in some other. He cannot strike a blow, nor fine a dollar, nor punish by imprisonment for an hour. By appeal, by injunction, by mandamus or certiorari, the proceedings of inferior courts or magistrates can be reached, and their legality or constitutionality tested. But here a multitude of tribunals are established, over whose proceedings, not the supreme court of any state, no, not even the supreme court of the United States, has supervision. And what do these commissioners decide? That a man has no right to himself; that his body, limbs, faculties, are thepropertyof another; that heowes service. Suppose the question were, whether the respondent owed the claimant a dollar. Could the commissioner give judgment and issue execution for it? Certainly not. But yet he is here authorized to decide questions infinitely more important than any amount of money. He is to decide that a man owes life-long service from himself, and from all the children of his loins.
But the surrender of an alleged fugitive from servicehas been 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 hometo 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 underanothergovernment. 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 thissubject 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, hasoriginal,final, andexclusivejurisdiction 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 andcredit 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 mysteriousdebt 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 ofhabeas corpus, for which martyrs have died and rivers of blood have flowed, and which the constitution declaresSHALL NOTbe suspended “unless when in cases of rebellion or invasion, the public safety may require it”? The answer is, that the writ ofhabeas corpusis 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 processissued 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 thelettres 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 aprima faciecase. If there be no defence, the proceedings will bebrief. 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 thelaw’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 aclaim 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 ofMahoneyvs.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 thecompetencyof the grantor, and the validity of the instrument. Years passed away andhedied. 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 thechattels. 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! Hethat 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, allcriminals, 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 aninnocentman, 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 heisfree, he must stand dumb before the minister of the law that puts on his fetters.
I will not dwell at any length upon those portionsof 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 orwithouthis 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 “deliveredup.” There the obligation of that instrument ceases. It is only the law that adds, he shall becarried 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 thecitizen. 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 withexclusivejurisdiction, 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 necessityconclusive 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 theUnited States can interfere with him; and the first question for him to “hear and determine” is, whether in truth there be any suchlaw, 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.
[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.
[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.