G[eorge] W. F. Mellen to Frederick Douglass, August 25, 1853
Letter from G. W. F. Mellen.
MR. DOUGLASS:—I have read the decision
given by the Hon. Judge McLean, in the case
of McQuerry; it cannot but illustrate both
to the Free Soil party, and the old organiza-
tion abolitionist, or, at the least a portion of
them, who now contract that movement—
the
obnoxious, or I may say the untrue position
in which both of those parties are placed—for if in the one case, the States are sover-
eign and independent on the subject of sla-
very, and they may do what they will with
the inhabitants who may reside within their
borders, and the general government cannot
interfere; or, if our fathers guaranteed sla-
very at the scuttle, and meant to support it
by what is called the Fugitive Slave Clause,
I know not how Judge McLean, sitting as
Judge, could have made any other decision
than he has; because in the one case he rec-
ognizes the Slave Code of Kentucky, which
the Free Soilers admit, if I understand them,
she has, under the Constitution, a right to
make, (I speak not morally;) and in the oth-
er, he recognizes the Fugitive Slave Clause,
so called by the abolitionists, and I know not
that either of those parties should complain
of his decision, he sitting as Judge, excepting
as the latter will have nothing to do with the
Constitution at all. Yet the whole world have
glorified our Constitution, have called it a
free Constitution, and us "free American citizens;) and yet, according to this decision,
the Supreme Court of the country, takes
cognizence of slaveholding laws of the States,
as binding upon them, and that as a suffi-
cient ground of action, that a man is claim-
ed as a slave, a chattel, without one single in-
quiry whether it was possible for the thing
to owe or not, or that anything could be due
from one to another, without there being any
contract made between the parties.
If such is our Constitution, where is our
free Americanship? If Kentucky can pass a
law, making one man a slave, why can she
not pass a law making Judge McLean a slave?
I know not the Constitution makes any dis-
tinction in the color of "persons;" and if he
should, while passing through Kentucky, be
seized without crime, put up at auction, and
knocked off to the highest bidder, and it
could be sworn to that he was in possession
of such, or such a man; that he had been
paid for, had been treated and served like
others, and it had all been done in confor-
mity to the laws of Kentucky, that would be
a case sufficient for a Judge of the United
States Court to take cognizance of such
facts, and send him back into a State that
would permit such acts as those to pass as le-
gal, and would justify them by her laws!
Were our fathers guilty of making such a
battle as this? and for making such, we have
been praising them, and been doing for the
past sixty-six years, and now wake up and
find we are not American freemen at all, only
as Massachusetts, New York, Ohio or Rhode
Island, or any of the other States may make
us so; that the United States can protect a
man in Smyrna but that she cannot do it in
Kentucky, or South Carolina, or in fact any-
where within the States. She can protect
them upon the high seas, and in foreign
lands, or in her territories, but not within the
boundaries of any of the States; and that
is the doctrine proclaimed in high places, and
by the Free Soil party. If Mormonism pre-
vails in Utah, every man can be made to be-
lieve in Joe Smith, or suffer the penalties of
such laws as the Mormons may think proper
to impose. If Catholicism prevails in Ohio,
a man can be made a Catholic, and so on,
and so forth; for if States can make what
law they please on human rights, why not?
and this State of things is our beautiful free
country, of which we are all boasting; and
our fathers deserve a patent for making it so
glorious!
There is, however, one expression in this
decision, for which the country should thank
Judge McLean for making, and that is, "there
can be no law without a sanction." I hope the
American people will remember it, and one
of those days put a "sanction" on one of
their "organic laws," that will make our
Judges remember it for all time to come; and
I cannot but think no more such decisions
will be made in this country, as has been
made in this case of McQuerry's.
If you or any of your readers can get hold
of the Encyclopedia Brittania, and will look
under the head of Habeas Corpus, they will
find the object of that writ, is, that every
man shall have a right to his life, liberty, and
the pursuit of his labor, unless he has com-
mitted such crime as will amount to a for-
feiture; that it is a great writ of right which
all men may have sued out in their favor, so
as to be brought before the Judge, that he
may do as to justice may appertain; that the
Judges of England are under the heavy pen-
alty of twenty-five hundred dollars if they
refuse to grant it, and the Sheriffs under that
of five to one thousand dollars if it is not
served in the quietest possible manner; that
it is a writ to be used in all illegal restraints,
whether by the king in council, or any other,
or as it would be expressed in this country
by those in authority, or any other; and then,
if the man has not committed any crime, or
transgressed any law of the land, to which
all alike are amenable, he is to be discharged.
Then if they will look into the Constitution
of our country, they will find in the 2d par-
agraph, 9th sec., 2 art. this clause, "The
privilege of the writ of Habeas Corpus shall
not be suspended saving in the cases of re-
bellion or invasion, the public safety may
recognize it." Only two cases that can hap-
pen in this country, "rebellion or invasion,"
when any authority can cause it to be sus-
pended, and this is, "the supreme law of the
land, anything in the Constitution, or laws of
any of the States to the contrary, notwith-
standing;" and yet Judge McLean knows
that in any slaveholding State, this writ is
suspended, and while he nominally granted
him the writ, he actually refused to grant
him the "privilege" of the writ, which is,
that unless the man had committed crime,
he had a right to, or unless it had been prov-
ed in the words of the Constitution, "service
or labor was due" to the claimant, and that
this is the reason why we do not complain of
this clause, and why we make no complaint
in giving up criminals.
I repeat, I hope the American people will
not forget the suggestion made by the Judge;
but, on the contrary, urge upon Congress to
put a sanction to that clause respecting the
writ of Habeas Corpus; and I cannot but
think it will give the Judges a clearer moral
insight into the unconstitutionality of the
whole system of slavery, and will make them
think there can be no "position lower" made
in any of the States, that can avoid this por-
tion of our Constitution; and till it is done,
the harmony that would otherwise exist be-
tween all parts of our Constitution will nev-
er be experienced. When it is done, our
thousands of Judges, scattered over all of
our land, may be considered a pretty good
bulwark against the approval of tyranny, let
it arise from what quarter it might; and the
wisdom of the fathers will be clearly exem-
plified in the government they have framed.
Let their children carry out their purpose.
Yours truly,
G. W. F. MELLEN.
BOSTON, Aug. 25, 1853.