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NARRATIVE of the sufferings of LEWIS and MILTON CLARKE, among the Slaveholders of Kentucky. 25 cents.

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*

The argument on this point is substantially the same as one embraced in the Letter of Hon. Horace Mann, published in the Boston Atlas, June 10, 1850. Although the argument implies no merit on my part—it being made up of definitions given by the Supreme Court—it may yet be proper for me—by way of avoiding the appearance of plagiarism—to say that it was published in Burritt’s Christian Citizen of June 8th, 1850, two days before the publication of Mr. Mann’s.

*

The Commissioners are probably unconstitutional judicial tribunals for another reason, to wit, that the law, which authorizes their appointment, makes no provision that they “shall hold their offices during good behavior,” as the constitution requires that “judges” shall do. The law says nothing of the tenure, by which they shall hold their offices; it simply provides “That it shall be lawful for the Circuit Court of the United States, to be holden in any district, * * to appoint such and so many discreet persons, in different parts of the district, as such court shall deem necessary, to take acknowledgments of bail and affidavits,” &c.

Stat. 20th Feb., 1812, U. S. Stat. at Large, Vol. 2, p. 678.

I understand the general opinion to be that, under this law, the commissioners are entitled to hold their offices only during the pleasure of the courts that appoint them.

*

In truth, “the acts, records, and judicial proceedings” of a State judge, when exercising a judicial authority purporting to be conferred upon him by the United States, are not even the “acts, records, or judicial proceedings” of the United States—for the United States have no constitutional power to confer any such authority upon him—and consequently his acts, in execution of such an authority, are legally nothing more than his private acts as an individual.

*

On general principles, the testimony of the parties themselves, in all cases, civil and criminal, is legitimate, and neither Congress nor the courts have any authority to exclude it.

In civil cases the testimony of the parties is legitimate, because they alone know the whole truth, as to the matter in controversy, and it is hardly possible to conceive of a case in which it would not be for the interest of one or the other of the parties to disclose it. If, therefore, the parties themselves are allowed to testify, it is morally certain, as a general thing, that the whole truth will be told. If the parties agree in their testimony, the facts of the case are at once ascertained, and the necessity and expense of further testimony is saved. If they disagree, the testimony of third persons can then be brought in as supplementary to that of the parties; and the presumption must be that it will corroborate the party whose testimony is true. But if the testimony of third persons alone is received, there can be no certainty at all that the whole truth is told, in hardly any conceivable case; and consequently there can be no certainty that the decision corresponds with the real merits of the case.

It is absurd to exclude both the parties, on the ground of interest, for two reasons. 1. Because they have the same interests respectively; their opposing interests therefore exactly balance each other; and they consequently stand on a perfect level with each other in that respect. 2. Because, being parties, their interests are necessarily known to the tribunal that weighs their testimony, and that tribunal will of course make the proper allowance for their interests, and judge of the credibility of their testimony accordingly.

In suits in equity, all courts receive the testimony of the parties themselves; and there is no rational ground whatever for making a distinction, in this respect, between suits in equity, and suits in law. Blackstone says,

“It seems the height of judicial absurdity, that in the same cause, between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of Westminster Hall, (in the equity courts), and denied on the other, (in the law courts); or that judges of one and the same court should be bound by law to reject such a species of evidence, if attempted on a trial at bar, but, when sitting the next day as a court of equity, should be obliged to hear such examinations read, and to found their decrees upon it.”

3 Blackstone, Ch. 28.

In criminal cases, nothing can be more absurd, cruel, or monstrous, nothing more manifestly contrary to all the dictates of humanity, justice, and common sense, than to close the mouth of an accused person, and forbid him to offer any explanation or justification of his conduct, or to give any denial to the testimony brought against him—and thus throw him, for the protection of his life, liberty, and character, upon such evidence of other persons as chance may happen to throw in his way.

No doubt the guilty would generally attempt to hide their guilt by falsehood; but to presume that an accused person will testify falsely, is to presume him guilty before he is heard, which we have no right to do. The law presumes an accused person innocent until he is proved guilty. Consistently with this presumption, the law is bound to presume that he will tell the truth, because, if he be innocent, as the law presumes him to be, the truth would best serve his purpose.

If the principle of shutting the mouth of an accused person, and compelling him to rely for his defence upon such stray evidence as may chance to fall in his way, be a sound one, it should be acted upon always, and everywhere. The father should strike, but never hear, his child. And it should be the same throughout society. A man accused of any thing offensive or injurious to others, should never be allowed, with his own lips, either to deny the act, or justify it.

It is manifest that if such a principle were acted upon in society generally, it would lead to universal war. Yet the principle would be no less absurd or monstrous in society at large, than it is in courts of justice.

The fear of falsehood, which has led to the adoption of this principle, has no justification in practical life; for a guilty man is much more likely to entrap, than to exculpate himself, when he attempts to defend himself by falsehood.

*

In the case of Hill v. Low, the court held that under the law of 1793, the claimant, in a suit for the penalty, against a person for harboring, concealing, or rescuing a fugitive, was under the necessity of proving his property in the fugitive, and that the certificate of the magistrate was not proof. The reasons given for that opinion seem very satisfactory and conclusive, and to be as applicable to a case under the act of 1850 as under that of 1793.—4 Washington C. C. Rep. 327.

*

If however, it should be held that the $1000, required to be paid to the claimant, is in the nature of a penalty, in addition to the fine and imprisonment, it follows that in a suit for that penalty, the jury will have a right to judge of the constitutionality of the law, as in case of an indictment.

*

In all criminal cases, the jury are told that the defendant has “for trial, put himself upon the country, which country you are.”

*

By Hon. Horace Mann.

*

If judges were made amenable to the people by election, we might have more hope of their having some respect for the rights of the people.

*

I am confident that Mr. Calhoun made the same admission within two or three years last past, but I have not the paper containing it at hand.

*

Servants were, at that time, a very numerous class in all the states; and there were many laws respecting them, all treating them as a distinct class from slaves.

*

Washburn, in his “Judicial History of Massachusetts,” (p. 202), says,

“As early as 1770, and two years previous to the decision of Somersett’s case so famous in England, the right of a master to hold a slave had been denied, by the Superior Court of Massachusetts, and upon the same grounds, substantially, as those upon which Lord Mansfield discharged Somersett, when his case came before him. The case here alluded to, was James vs. Lechmere, brought by the Plaintiff, a negro, against his master to recover his freedom.”

*

Perhaps it may be claimed by some that the constitution of South Carolina was an exception to this rule. By that constitution it was provided that the qualifications of members of the Senate and House of Representatives “shall be the same as mentioned in the election act.”

“The election act” was an act of the Provincial Assembly passed in 1759, which provided that members of the assembly “shall have in this province a settled plantation or freehold estate of at least five hundred acres of land, and twenty slaves.”

But this act was necessarily void, so far as the requirement in regard to slaves was concerned, because slavery being repugnant to the laws of England, it could have no legal existence in the colony, which was restricted from making any laws except such as were conformable, as nearly as circumstances would allow, to the laws, statutes, and rights of the realm of England.

This part of the act, then, being void at the time it was passed, and up to the time of the adoption of the constitution of the State, the provision in that constitution could not legally be held to give force to this part of the act. Besides, there could be no slaves, legally speaking, in 1778, for the act to refer to.

*

For proof that such was the meaning of the word “free” in those instruments, I must refer to my argument on “The Unconstitutionality of Slavery.”