Chapter XIII: Appendix (7)

After the declarations made to-day, I am, at least for the present, satisfied, and shall not proceed further with my motion. I was particularly grateful to the Senator from Maryland for his very explicit statement of the law. I do not doubt he is entirely right. It has always been my opinion. I am glad to have it confirmed by that distinguished Senator and lawyer. I am also grateful to the Senator from West Virginia, who made the report, and who has so explicitly stated his own convictions, and, as I understand him, also the unanimous opinion of the Committee, to the effect that these people have legal rights precisely as white persons to the full enjoyment of all the privileges of the railroad in this District. If they have such legal rights, they are at this moment unquestionably exposed to what I must call outrage. If a white person were ejected from the cars on account of his skin, we should all feel that it was an outrage. Is it any less an outrage because the person ejected is simply guilty of a different skin? I confess, that, to my mind, it is a greater outrage, because obligations are greater in proportion to the humility and weakness of those with whom we deal.

But, Sir, I have no desire to proceed further in this question. I am for the present satisfied. My hope, however, is, that the railroad corporation will at once take notice, and act according to law.

Mr. Sumner then withdrew his motion.

* * * * *

In the face of this report, the exclusion of colored persons
continued, often attended by intolerable outrage. Aged persons
were thrust into the street. At last an opportunity occurred of
bringing this question to a vote in the Senate.

March 16, 1864, the Senate had under consideration a bill to
incorporate the Metropolitan Railroad Company in the District
of Columbia, sometimes known as the F Street Road, when Mr.
Sumner moved the following amendment:--

“_Provided_, That there shall be no regulation excluding
any person from any car on account of color.”

A debate ensued, in which Mr. Saulsbury, of Delaware, and Mr.
Reverdy Johnson, of Maryland, earnestly opposed the amendment.
March 17th, the latter, while acknowledging that there was
nothing in the bill giving “authority to exclude passengers
at all,” insisted that colored persons so excluded should
be remitted to the courts, and he did not see “why it is
necessary to provide more special guaranties for the black
man than are provided for the white man”; “if the black man
is improperly excluded from one of these cars, … he has the
right to go to the courts and seek his remedy there, and the
white man has no greater right”; that Mr. Sumner “might just
as well propose to pass a law providing that these black
men and black women shall have the same right to visit the
Presidential mansion on public occasions as the white men and
the white women”; and he then discussed the questions of social
and political equality, insisting that those just escaped from
Slavery “are not the people to exercise the elective franchise,
and to mix in society with the educated classes, of which and
from which the public councils of the country should always be
composed and taken.”

Mr. Sumner replied:--

MR. PRESIDENT,--The question before the Senate is very simple. It is plain as one of the Ten Commandments. But the Senator from Maryland, with that nimbleness of speech which belongs to him, while undertaking to discuss it, has ranged over a very extensive field. He has treated the Senate to a discourse on almost everything, and something else also,--the elective franchise, social privileges of the Presidential mansion, the equality of races, the intermarriage of races, the state of Slavery in Maryland, also in some other States, and then the state of Slavery generally. Now, Sir, I shall not follow him on any of those topics. My desire is to present the precise point in issue. The Senate will then be prepared to vote.

But the Senator from Maryland will allow me to remind him that he seems to exhibit a rare inconsistency,--first, in declaring the absolute right of colored people to a seat in the cars, and then arguing, that, on every consideration of social life and of principle, they ought not to be admitted to any such privilege. The two parts do not go together. If colored people have the legal right to enter these cars, why does the Senator argue that they ought not to have that right? I agree with the Senator in the first point. They have the legal right to enter these cars, and the proprietors are trespassers, when they exclude them. Here I agreed with the Senator the other day. To my mind it is clear, because any other conclusion authorizes a corporation to establish a caste offensive to religion and humanity, injurious to a whole race now dwelling among us, and bringing shame upon our country.

The Senator asks, why, as I accept this conclusion, do I bring forward the present proposition? To this there are two answers, either of which is sufficient. The first is, that in the last railroad statute passed by Congress this provision was introduced, and I have heard of no complaint or trouble from it. In that now before us let us introduce the same provision, and make the two uniform. That is one reason. But the better reason is, that, while, beyond all question, colored persons have the legal right, even without this amendment, yet that legal right has been drawn in question. In point of fact, they are excluded from the cars. The Senator from Maryland refers to one case, because it has become well known. I am familiar with many other cases. They are brought to my attention almost daily. There is, then, at this moment, an existing abuse. Colored persons are kept out of their rights. But we cannot afford, at this crisis of our history, to sanction injustice. Every such act rises in judgment against us, and hangs on the movements of our armies, checking even the currents of victory.

The Senator admits their rights, but he says, Let them go to the courts. Sir, what is that for a poor, humble person, without means and without consideration? The Senator knows something of the law’s delay and the law’s expense; and I ask him whether it is just to subject an oppressed people to this additional oppression, when, by a few words, Congress, now in session, can overturn the wrong.

MR. JOHNSON. Will the Senator permit me to ask him a question
by way of reply? Suppose the amendment is adopted; if it will
not give them a greater right than they have now, and the
Company refuse to let them enjoy the right, what is their
remedy? They must go to the courts. I suppose there is no other
remedy. You do not provide that the charter shall be forfeited
at once.

MR. SUMNER. I know very well that they may, in the last resort, be obliged to go to the courts; but I know that it will be more difficult for the Company to exclude them in the face of a positive statute than when their rights are simply founded on _inference_. The positive words which I propose leave no loophole for doubt. They must be obeyed.

There is nothing more common in legislation than, in case of doubt as to the meaning of a statute, or of the Common Law, to remove it by what is well known as a “declaratory” statute. I have in my hands a work of authority, which the Senator knows well, Dwarris on Statutes, from which I read:--

“And first of declaratory acts. These are made where the old
custom of the kingdom is almost fallen into disuse or become
disputable, in which case the Parliament has thought proper,
_in perpetuum rei testimonium_, and for avoiding all doubts and
difficulties, to declare what the Common Law is and ever hath
been.”[310]

Are not these words completely applicable to the case before us? What should be the custom is, according to these words, “almost fallen into disuse, or become disputable.” I say, therefore, again, following these words, “for avoiding all doubts and difficulties,” it is the duty of Congress “to declare” what the law of the land is.

Again, in another place, this same authority, speaking still further of declaratory statutes, says:--

“Acts to explain laws are properly acts of interpretation
by legislative authority,--or, to borrow an expression from
the writers on the Roman Law, they are acts of _authentic
interpretation_.”[311]

I ask the attention of the Senator to the expression, “they are acts of _authentic interpretation_.” Now, Sir, what I desire is, that the Senate shall give an authentic interpretation to the law. To do this it is not needful to range over the whole field of history, of morals, or of politics, in imitation of the Senator, or to discuss the equality of races, or their fortunes in the future; but it is enough for us to become acquainted with the existing abuse, every day under our own eyes, in the streets of this capital, and then to apply the remedy. Beyond all question, there is an abuse. The remedy is simple, and I cannot doubt that it will be effective.

Listening to the objections which this measure has encountered, I am reminded of those so often brought against the Wilmot Proviso. Sometimes it was said that Slavery could not go into the Territories without positive statute, and that therefore the prohibition was unnecessary. But it generally happened that those who opposed the positive prohibition were indifferent to the great question. No, Sir; there can be but one true rule. It is this: the rights of colored persons must be placed under the protection of positive statute, warning their oppressors against continued outrage.

The question being taken on Mr. Sumner’s amendment, it was
adopted,--Yeas 19, Nays 17. The House concurred, and the
President approved the bill.

Thus was another road brought within the sphere of this
prohibition. But the exclusion was continued on the main road
in Pennsylvania Avenue.

* * * * *

June 21st, the Senate having under consideration a bill to
amend the charter of the Washington and Georgetown Railroad
Company, Mr. Sumner moved the following amendment:--

“_And provided, further_, That there shall be no exclusion
of any person from any car on account of color.”

Debate ensued. Mr. Sherman, of Ohio, thought “the amendment
ought not to be adopted.” Mr. Hendricks, of Indiana, thought it
tended to depreciate the value of investments made on the faith
of former legislation. Mr. Willey, of West Virginia, declared
his opposition, saying, “It is a matter to be regulated by the
interests of the Company, the convenience of the people, and
especially the tastes of the people.” Mr. Powell, of Kentucky,
said: “If the Senator from Massachusetts is such a vehement
friend of this down-trodden race, as he is a lawyer, why did
he not undertake their case, and propose to argue it for them
before the courts? That would have indicated that he really
felt for the negro.… The Senator shows his devotion to this
down-trodden race here, and only in words.… The Senator’s
staple is this fanatical idea. He wants this little hobby to
ride through Massachusetts on, and to feed a fanatical flame
there. He can fool nobody here with this kind of thing. Take
the negro out of the Senator’s vocabulary, and, rich as it is,
it would be exceedingly barren.” Mr. Trumbull, of Illinois,
also opposed the amendment. In the course of the debate, Mr.
Sumner spoke as follows, especially in reply to Mr. Trumbull.

MR. PRESIDENT,--The Senator from Illinois [Mr. TRUMBULL], in former days, was a sincere, intelligent, devoted supporter of the Wilmot Proviso. As I understand that Proviso, it was simply a prohibition of Slavery in the Territories. Now I know not whether the Senator held, as I did, that, even without that prohibition, yet, by a strict interpretation of the Constitution, Slavery could not go into the Territories. I presume he did; most of us did. For myself, I held it resolutely and sincerely. I always regarded the Wilmot Proviso, if the Constitution were properly interpreted, as mere surplusage, sheer supererogation; and yet I never hesitated, in season or out of season, to vindicate it; and I believe the Senator never hesitated, in season or out of season, to do the same. I remember that my earliest admiration of that Senator was founded on his brave and able support of that very prohibition. Not then was he deterred from a humane provision because without it, according to his interpretation of the Constitution, Slavery could not enter the Territories. Nor was he deterred because the provision might be offensive to persons of weak nerves. No, Sir; openly and courageously he maintained the principle that Slavery must be prohibited. And on the same principle--if I may pass from great things to smaller, I admit, but not small--I insist that this proviso should also be adopted.

Our experience shows that the law as the Senator expounds it is not so accepted by this railroad corporation. He knows as well as I that colored persons are daily insulted. Some of these victims will compare in respectability of conduct with any whom I now have the honor to address. My colleague alluded to a colored clergyman whom he saw thrust out only the other day. We know of an officer of the United States, wearing the national uniform, thrust out; and the Senator from Illinois will allow all these things to be done, and not interfere. He tells us that it is contrary to law, and yet he allows it to proceed under the very eyes of the Senate. Sir, I insist that the Senate, when such outrage occurs, shall show that it has power, and is willing to exercise it on the side of justice.

But the Senator reminds us that in other days the Fugitive Act was passed here, and made especially offensive; and he pleads with us not to imitate that bad example, by introducing anything that may be offensive. I do not like the comparison of the Senator. Does he not know well that everything introduced into the Fugitive Slave Bill was in the interest of Slavery, and contrary to every sentiment of humanity, and that it was intended to give offence? The proposition now moved is opposite in character. It is to sustain the principles of humanity, to uphold human rights, to vindicate human equality, and with no purpose of offence,--none, not the least. The illustration of the Senator is entirely out of place. True it is that in those other days we were offended, and it was part of the hardships to which we were exposed. As, in the days which preceded our Revolution, the British officers said they would cram the stamps down the throats of the American people, so, in the same malignant spirit, the Slave-Masters insisted upon cramming Slavery down the throats of the Senate and the country. There was nothing but brutality then. Slavery in all its features is bad, but one of its most odious manifestations was the revolting insensibility to every sentiment of delicacy and humanity which it created in its supporters.

Sir, the Senator from Illinois knows well that it is in a very different spirit that propositions like the present are brought forward. It is always in the interest of human rights, and I need not say to that Senator, so far as I am concerned, with no other purpose than that patent in the proposition itself, and with no idea of offending any human being,--on the contrary, with a desire to avoid offence, if I possibly can. In that spirit I wish to do my duty on this floor. I would never give offence to any one, here or elsewhere, if I knew how to avoid it, while in all things I faithfully discharge my public duty.

The debate continued, when Mr. Grimes, of Iowa, said he should
like to have Mr. Sumner answer one question. “Suppose we pass
this amendment and put it into the law, and the Company goes
on and does exactly as it has been doing, excluding these men,
what are these colored men going to do? Have they not got to
go to law then? Will they not be compelled to enforce their
rights in court? Will they not be compelled to employ lawyers?
If that be so, what advantage will it be to them to adopt this
amendment under the present condition of things?”

MR. SUMNER. I will answer. Because the Company will not dare
to continue this outrage in the face and eyes of a positive
provision of statute. That is the answer.

On the Yeas and Nays, the amendment was lost,--Yeas 14, Nays
16,--several Republicans uniting with the Democrats against it.

At the next stage of the bill, Mr. Sumner renewed his
amendment, when it was adopted,--Yeas 17, Nays 16. The bill
passed the Senate, and was the subject of conference between
the two Houses, but it never became a law.

* * * * *

January 17, 1865, the Senate having under consideration the
bill to incorporate the Baltimore and Washington Depot and
Potomac Ferry Railway Company, Mr. Sumner moved the same
amendment, which was adopted,--Yeas 24, Nays 6. This bill was
passed by the Senate, but it never became a law.

February 4, 1865, the Senate having under consideration a bill
to amend the charter of the Metropolitan Railroad Company, Mr.
Sumner moved the following amendment:--

“That the provision prohibiting any exclusion from any car
on account of color, already applicable to the Metropolitan
Railroad, is hereby extended to every other railroad in the
District of Columbia.”

This amendment became necessary in order to reach the
Washington and Georgetown Railroad Company. It was opposed by
Mr. Dixon, of Connecticut, Mr. Conness, of California, and Mr.
Hale, of New Hampshire, the last regarding it in the nature
of general legislation on a private act. Mr. Sumner replied,
that it was needed, in order to bring the Metropolitan Railroad
on an equality with the other roads, inasmuch as Congress had
already imposed the prohibition upon that road; and, secondly,
that it was germane, inasmuch as the Senate might engraft upon
any railroad charter any proposition, special or general,
concerning the subject-matter.

The amendment was lost,--Yeas 19, Nays 20.

At the next stage of the bill, Mr. Sumner renewed his
amendment. February 6th, Mr. Dixon, Chairman of the Committee
on the District of Columbia, withdrew his opposition, saying:
“I opposed it on the ground that it seemed to conflict with
the rights of another Company, not now before the Senate
[the Washington and Georgetown Railroad Company]; but since
that time I have seen the managers and controllers of that
Company, and find that they are unwilling to contend on this
subject with what they consider to be the public opinion. They
therefore make no objection to it, and I shall make none.”

The amendment was adopted,--Yeas 26, Nays 10. The bill as
amended passed the House and was approved by the President,
so that it became illegal for any railroad in the District of
Columbia to exclude any person from any car on account of color.

The Washington and Georgetown Railroad did not promptly
recognize the law. Colored persons were excluded from their
cars, when Mr. Sumner addressed a letter to the President of
the road, calling attention to the contumacy of the Company,
and announcing his purpose, if it continued, to move, at the
next session of Congress, the forfeiture of the charter. At
the same time he addressed a communication to the District
Attorney, asking him to proceed against the Company. At last
the law was recognized, and from that date all the street-cars
of Washington have been open to colored persons.

WRONG AND UNCONSTITUTIONALITY OF FUGITIVE SLAVE ACTS.

REPORT IN THE SENATE OF THE COMMITTEE ON SLAVERY AND FREEDMEN, FEBRUARY 29, 1864.

February 29, 1864, Mr. Sumner reported from the Committee
on Slavery and Freedmen a bill to repeal all acts for the
rendition of fugitive slaves. Accompanying this bill was the
following report, of which ten thousand extra copies were
ordered to be printed for the use of the Senate, together with
the views of the minority, by Mr. Buckalew.

The debate on this subject, and the final repeal of all
Fugitive Slave Acts, appear at a later date.[312]

The Select Committee on Slavery and the Treatment of Freedmen,
to whom were referred sundry petitions asking for the repeal of
the Fugitive Slave Act of 1850, and also asking for the repeal
of all acts for the rendition of fugitive slaves, have had the
same under consideration, and ask leave to make the following
report.

Two Fugitive Slave Acts still exist unrepealed on our statute-book. The first, dated as long ago as 1793, was preceded by an official correspondence, supposed to show necessity for legislation.[313] The second, belonging to the compromises of 1850, was introduced by a report from Mr. Butler, of South Carolina, at that time Chairman of the Judiciary Committee of the Senate.[314] In proposing the repeal of all legislation on the subject, it seems not improper to imitate the latter precedent by a report assigning briefly the reasons governing the Committee.

RELATION BETWEEN SLAVERY AND THE FUGITIVE SLAVE ACTS.

These Acts may be viewed as part of the system of Slavery, and therefore obnoxious to the judgment which Civilization is accumulating against this Barbarism; or they may be viewed as independent agencies. But it is difficult to consider them in the latter character alone; for if Slavery be the offence which it doubtless is, then must it infect all the agencies it employs. Especially at this moment, when, by common consent, Slavery is recognized as the origin and life of the Rebellion, must all its agencies be regarded with more than ordinary repugnance.

If in time of peace all Fugitive Slave Acts were offensive, as requiring what humanity and religion both condemn, they must at this moment be still more offensive, when Slavery, in whose behalf they were made, has risen in arms against the National Government. It is bad enough, at any time, to thrust an escaped slave back into bondage: it is absurd to thrust him back at a moment when Slavery is rallying all its forces for the conflict it has madly challenged. The crime of such a transaction is not diminished by its absurdity. A slave with courage and address to escape from his master has the qualities needed for a soldier of Freedom; but existing statutes require his arrest and sentence to bondage.

In annulling these statutes, Congress simply withdraws an irrational support from Slavery. It does nothing against Slavery, but merely refuses to do anything for it. In this respect the present proposition differs from all preceding measures of Abolition, as refusal to help an offender on the highway differs from an attempt to take his life.

And yet it cannot be doubted that the withdrawal of Congressional support must contribute effectively to the abolition of Slavery: not that, at the present moment, Congressional support is of any considerable value, but because its withdrawal would be an encouragement to that universal public opinion which must soon sweep this Barbarism from our country. It is one of the felicities of our present position, that by repealing all acts for the restitution of slaves we may hasten the happy day of Freedom and of Peace.

Regarding this question in association with the broader question of Universal Emancipation, we find that every sentiment or reason or argument for the latter pleads for the repeal of these obnoxious statutes, but that the difficulties sometimes supposed to beset Emancipation do not touch the proposed repeal, so that we might well insist upon the latter, even if we hesitated with regard to the former. The Committee find new motive to the recommendation they now make, when they see how important its adoption must be in securing the extinction of Slavery.

It is not enough to consider the proposed measure in its relations to Emancipation. Even if Congress be not ready to make an end of Slavery, it cannot hesitate to make an end of all Fugitive Slave Acts. Against the latter there are cumulative arguments of Constitutional Law and of duty, beyond any to be arrayed against Slavery itself. A man may even support Slavery, and yet reject the Fugitive Slave Acts.

THE FUGITIVE CLAUSE IN THE CONSTITUTION, AND THE RULES FOR ITS INTERPRETATION.

These Acts profess to be founded upon certain words of the Constitution. On this account we must consider these words with a certain degree of care. They are as follows.

“_No person_ held to service or labor in one State, under the
laws thereof, escaping into another, shall, in consequence of
any law or regulation therein, be discharged from such service
or labor, but _shall be delivered up on claim of the party to
whom such service or labor may be due_.”[315]

John Quincy Adams has already remarked that in this much debated clause the laws of grammar are violated in order to assert the claim of property in man; for the verb “shall be delivered up” has for nominative “no person,” and thus the grammatical interpretation actually forbids the rendition. It is on this jumble and muddle of words that a superstructure of wrong is built. Even bad grammar may be disregarded, especially in behalf of human rights; but it is worthy of remark, that, in this clause of the Constitution, an outrage on human rights was begun by an outrage on language.

Assuming that the clause is not invalidated by bad grammar, it is often insisted, and here the Committee concur, that, according to authoritative rules of interpretation, it cannot be considered applicable to fugitive slaves; since, whatever the intention of its authors, no words were employed positively describing fugitive slaves _and nobody else_. Obviously, this clause, on its face, is applicable to apprentices, and it is known historically that under it apprentices have been delivered up on the claim of the party to whom “such service or labor” was due. It is therefore only by discarding its primary signification, and adopting a secondary signification, that it can be made to embrace fugitive slaves. On any common occasion, not involving a question of human rights, such secondary signification might be supplied by intendment; but it cannot be supplied to limit or deny human rights, especially to defeat Liberty, without a violation of fundamental rules which constitute the glory of the law.

This principle is common to every system of civilized jurisprudence; but it has been nowhere expressed with more force than in the maxims of the Common Law and the decisions of its courts. It entered into the remarkable argument of Granville Sharp, which preceded the judgment extorted from Lord Mansfield, and led him to exclaim, in words strictly applicable to the Constitution of the United States, “The word _slaves_, or anything that can justify the enslaving of others, is not to be found, God be thanked,” in the British Constitution.[316] It entered into the judgment pronounced at last by Lord Mansfield, under the benevolent pressure of Granville Sharp, in the renowned Somerset case, where this great magistrate grandly declared that Slavery could not exist in England. His words cannot be too often quoted as an illustration of the true rule of interpretation. “The state of Slavery,” he said, “is of such a nature, that it is incapable of being introduced on any reasons moral or political, _but only by positive law_.… It is so odious, that nothing can be suffered to support it _but positive law_.”[317] Therefore the authority for Slavery cannot be derived from any words of doubtful import. Such words are not “positive.” And clearly, by the same rule, _if the words are susceptible of two different significations, that must be adopted which is hostile to Slavery_. This same cardinal principle, thus announced by the Chief Justice of England, has been echoed by the Chief Justice of the United States, being none other than Marshall, speaking for our own Supreme Court, when he said, “_Where rights are infringed_, … the legislative intention must be expressed with _irresistible clearness_ to induce a court of justice to suppose a design to effect such objects.”[318] In a clause capable of _two meanings_ there can be no such “irresistible clearness” as would justify an infringement of human rights.

But Lord Mansfield and Chief Justice Marshall were simply giving practical application to those venerable maxims cherished in America as in England. It is not necessary to repeat them at length. They are substantially embodied in the words, _Angliæ jura in omni casu Libertati dant favorem_,--“The Laws of England, _in every case_, show favor to Liberty”; and also in those other vigorous words of Fortescue, _Impius et crudelis judicandus est qui Libertati non favet_,--“He is to be adjudged impious and cruel who does not favor Liberty.”[319] By such lessons have all who administer justice been warned for centuries against the sacrifice of human rights. Even Blackstone, whose personal sympathies were with power, was led to declare, in most suggestive words, worthy of a commentator on English Law, that “the law is always ready to catch at anything in favor of Liberty.”[320] And Hallam, whose instincts were always for Freedom, has adopted and vindicated this rule of interpretation as a pole-star of Constitutional Liberty. “It was,” says this great author, “by dwelling on all authorities in favor of Liberty, _and by setting aside those which made against it_, that our ancestors overthrew the claims of unbounded prerogative.”[321] Nor can it be doubted that this conduct helped to build those great English safeguards of Freedom which have been an example to mankind.

This rule has never received plainer illustration than in the writings of Dr. Webster, the eminent lexicographer. In a tract bearing date 1795, long before the heats engendered by the Fugitive Slave Act, he used language which, if applied to our Constitution, must defeat every interpretation favorable to Slavery. “Where there are two constructions,” he says, “the one favorable, the other odious, _that which is odious is always to be rejected_.”[322] This principle, thus sententiously expressed by the American lexicographer, may be found also in the judgments of courts and the writings of civilians without number. It is one of the commonplaces of interpretation. Lord Coke, our master in English law, tells us, that, where words “may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment that standeth with law shall be taken.”[323] And Vattel, a master in International Law, says that “we should particularly regard the famous distinction of things _favorable_ and things _odious_,” and then he assumes that we must “consider as _odious_ everything that in its own nature is rather hurtful than of use to the human race.”[324] But the clause of the Constitution which has been made the apology of the Fugitive Slave Act is clearly open to “two constructions,” according to the language of Dr. Webster, or “a double intendment,” according to the language of Lord Coke, or one “favorable” and the other “odious,” according to Vattel. Thus far in our history, under the malignant influence of Slavery, the odious construction or intendment has prevailed.

There is also another voice to be heard in determining the meaning of a doubtful clause. It is the Preamble, which, on the threshold, proclaims the spirit in which the Constitution was framed, and furnishes a rule of interpretation. To “_establish justice_, insure domestic tranquillity, provide for the common defence, _promote the general welfare, and secure the blessings of Liberty_ to ourselves and our posterity”: such are the declared objects of the Constitution, which must be kept present to the mind as we read its various provisions. And every word must be so interpreted as best to uphold these objects. The Preamble would be powerless against any “positive” sanction of Slavery by unequivocal words; but, on the other hand, any attempted sanction of Slavery by words not “positive” and not unequivocal, must be powerless against the Preamble, which, in this respect, is in harmony with the ancient maxims of the law.

ANALYSIS OF THE WORDS OF THE FUGITIVE CLAUSE.

Looking more minutely at the precise words of this clause, we see how completely it is stamped with equivocation from beginning to end. _Every descriptive word it contains is double in signification._ The clause may be seen, first, in what it does not contain; and, secondly, in what it does contain. It does not contain the word “slave” or “slavery,” which singly and exclusively denotes the idea of property in man. Had either of these fatal words been employed, there would have been no uncertainty or duplicity. But in abandoning these words, all idea of property in man was abandoned also. Other words were adopted, simply because they might mean something else, and therefore would not render the Constitution on its face “odious.” But the unquestionable fact that these words might mean something else makes it impossible for them to mean “slave” or “slavery,” unless in this behalf we set aside the most commanding rules of interpretation. It is clear that the authors of this clause attempted an impossibility. They wished to secure Slavery without plainly saying so; but such is Slavery that it cannot be secured without plainly saying so. Naturally and inevitably they failed, as if they had attempted to describe _black_ by words which might mean _white_, or to authorize crime by words which naturally mean something that is not crime. The thing could not be done. The attempt to square the circle is not more absurd.

The clause begins with the descriptive words, “No _person_ held to service or labor in one State under the laws thereof.” Now a slave is not a “person,” with the rights of persons, but a _chattel_ or _thing_. Such is the received definition of the Slave States, handed down from Aristotle. He is not “held to service or labor,” but he is held as property. The terms employed describe an apprentice, but not a slave. And he must be held “under the laws” of a State. Here again is the case of an apprentice, who is clearly held “under the laws” of a State. But we have the authority of Mr. Mason, recently of the Senate from Virginia, for saying that no proof can be produced that Slavery in any State “is established by _existing laws_.”[325] The person thus described shall not “be _discharged_ from such service or labor.” Clearly an apprentice is discharged, but a slave is manumitted or emancipated. This undischarged person “shall be delivered up on _claim_ of the party to whom such service or labor may be _due_.” But all these words imply _contract_, or at least _debt_, as in the case of an apprentice. The slave can _owe_ no “service or labor” to his master. There is nothing in their relations out of which any such obligation can spring. The whole condition stands on force and nothing else. It is robbery tempered by the lash,--not merely robbery of all the fruits of industry, but robbery of wife and child. To such terrible assumption the language of _contract_ or _debt_ is totally inapplicable. Nothing can be “due” from slave to master, unless it be that “resistance to tyrants” which is “obedience to God.” It is absurd to say that “labor or service,” in any sense, whether of justice or of law, can be “due” from the slave. The same power which takes wife and child may exact this further sacrifice, but not because it is “due.”

Such is the simple truth touching this much debated clause. At the touchstone of unquestioned rules of interpretation its _odious_ character disappears, and astonishment prevails that the public mind for so long a period could have been perverted with regard to its true meaning. Nobody can doubt that this clause _may_ be interpreted in favor of Freedom, so as to exclude all idea of property in man. But if it _may_, then such is the voice of Freedom that it _must_.

APPLICABLE TO INDENTED SERVANTS.

Here it is important to consider, that, besides apprentices, there was a class of “indented servants” embraced by this clause. From Bancroft we learn that this species of servitude, under indentures or covenants, had from the first existed in Virginia. According to the historian, “the servant stood to his master in the relation of a _debtor_,” which, be it observed, is not the condition of a slave. From the same authority we learn that “the supply of white servants became a regular business,”--that, “like negroes, they were to be purchased on shipboard, as men buy horses at a fair,”--that “in 1672 the average price in the Colonies, where five years of service were due, was about ten pounds, while a negro was worth twenty or twenty-five pounds.”[326] The Scots captured on the field of Dunbar, royalist prisoners of the Battle of Worcester, and companions of Monmouth in his ill-starred insurrection were sent to the Colonies as a merchantable commodity, and there held in slavery for life or for years.

The other historian of our country, Hildreth, contributes to our knowledge of this class of servants. According to him, the importation of indented white persons, called “servants,” or sometimes “redemptioners,” in contradistinction to negroes, known as slaves, was extensively carried on as late as 1750, especially in the Middle States; and he mentions, that the Colonial enactments for keeping them in order, and especially for preventing their escape, were often very harsh and severe. They were put, for the most part, on a level with slaves, but their case in other respects was different. Except in very young persons, the term of service seldom or never exceeded seven years, and in all cases it was limited by law.[327] Even during the Revolution these indented servants appear on the stage. Many were enlisted in the army, and, yielding to the earnest request of Washington, Congress relinquished a plan already adopted of stopping a portion of their pay for the benefit of their masters.[328]

An English Colonial official, Eddis, in a letter from America, dated September 20, 1770, describes four different denominations of persons “in a state of servitude”: first, the “negroes,” who are the entire property of their respective owners; secondly, “convicts,” transported from the mother country for a limited term; “indented servants,” engaged for five years previous to leaving England; and “free-willers,” supposed from their situation to possess superior advantages. These he proceeds to describe. Of the last class he says, they are received under express condition, that, on arrival in America, they are to be allowed a number of days to dispose of themselves most to their advantage, but, in fact, they are rarely permitted to set foot on shore until they have bound themselves.[329]

If, happily, at the formation of the Constitution, these servants had diminished in number, or had ceased to exist as a class, the condition was not unknown. They were persons “held to service or labor,” and the provision of the Constitution was strictly applicable to them.

Rejecting the odious application involving the support of Slavery, we follow received rules and the undoubted genius of the Common Law. How anxiously judges seek to evade an obnoxious penal statute is illustrated by a curious case mentioned by Lord Campbell. It was proved that the defendant, being in a stubble-field with a pointer, fired his gun at a covey of partridges, and shot two, when the judge, disliking to enforce the Game Laws, objected that there was no evidence that the gun was loaded with shot, and advised the jury to conclude that the birds fell dead from fright.[330] But a clause for the rendition of fugitive slaves is entitled to as little respect as the Game Laws, and, when the words employed are applicable to others than slaves, they should not be applied to slaves.

NO LAPSE OF TIME CAN DEFEAT AN INTERPRETATION IN FAVOR OF LIBERTY.

Against this interpretation, so overpowering in reason and authority, it is no objection that thus far Slavery has prevailed. There is no statute of limitation and no prescription against the undying claims of Liberty. Rejected or neglected in one generation, they revive in another; nor can they be impaired by any desuetude. This objection was impotent to prevent Lord Mansfield from declaring that Slavery could not exist in England, although practically, under a false interpretation of the British Constitution, sustained by the professional opinions of Talbot and Yorke, and by the judgment of the latter on the bench, under the name of Lord Hardwicke, African slaves were sold in the streets of London, and advertised for sale in English papers, for a period full as long as that which has witnessed the false interpretation of our Constitution. As length of time did not prevail against a true interpretation of the British Constitution in the case of Somerset, it ought not to prevail against a true interpretation of our Constitution now.

There is no chemistry in time to transmute wrong into right. Therefore the whole question on the Constitution is still open, as on the day of its adoption. The cases of misinterpretation are of no value,--at least they cannot settle the question against Liberty. Such was the noble declaration of Charles James Fox in the British Parliament, when, in words strictly pertinent now, he said: “Wherever any usage appeared subversive of the Constitution, if it had lasted for one or for two hundred years, _it was not a precedent, but an usurpation_.”[331] And such is the character of every instance in which our Constitution has been perverted to sanction Slavery.

PERVERSIONS WITH REGARD TO ORIGIN OF THE FUGITIVE CLAUSE.

A slight examination will show prevailing perversions with regard to the origin and history of this clause. Not content with imparting to it a meaning which it cannot bear, the partisans of Slavery have given to this clause an origin and history having no foundation in truth.

It is common to assert that the clause was intended to remove or counteract some difficulty which had occurred anterior to the Convention. But there is no evidence of any such difficulty. There was no complaint. Not a single voice was raised in advance to ask any such security.

It is also asserted, with peculiar confidence, that this clause, interpreted to require the rendition of fugitive slaves, constituted one of the original compromises of the Constitution, without which the Union could not have been formed. This pretension makes an asserted stipulation for the rendition of fugitive slaves one of the corner-stones of the Union. To this discreditable imputation upon the fathers of the Republic the Supreme Court seems to have lent sanction, when it declared, in the famous Prigg case, not only that “the object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves _as property_ in every State in the Union into which they might escape,” but that “the full recognition of this right and title … was so vital to the preservation of their domestic interests and institutions, that it cannot be doubted _that it constituted a fundamental article, without the adoption of which the Union could not have been formed_.”[332] Mark the way in which this extraordinary statement is ushered in,--“It cannot be doubted”! But it is doubted, and more too. Chief Justice Taney, at a later day, put forth the statement, that, during the Revolution, it was an accepted truth that colored men “had no rights which the white man was bound to respect,”[333]--and this statement was said to stand on authentic history; but it is now exploded, and the other statement must share the same fate. A careful inquiry shows that it is utterly without support in the records of the Convention, where the real compromises are revealed; nor is there a single contemporary pamphlet, speech, article, or published letter, out of which any such thing can be inferred. Surely, had this provision been of such controlling importance, it could not have escaped notice, at least, in the “Federalist,” when its writers undertook to describe and group the powers of Congress “which provide for the harmony and proper intercourse among the States”;[334] but the “Federalist” is entirely silent with regard to it. And yet we are gravely told “it cannot be doubted” that this provision “constituted a fundamental article, without the adoption of which the Union could not have been formed.” Frequent repetition has caused the common belief that this was history, instead of fable.

The actual compromises of the Constitution are well known. They were three in number. One established the equality of all the States in the Union, by securing equal representation in the Senate for the small States and large States. Another allowed representatives to the Slave States according to the whole number of free persons and “three fifths of all other persons,” in consideration that direct taxes should be apportioned in the same way. Another was the toleration of the slave-trade for twenty years, in consideration of commercial concessions to the “Eastern members.” Such are the actual compromises of the Constitution, with regard to which there is evidence. But imagination or falsehood is the only authority for adding the rendition of fugitive slaves to this list.

TRUE ORIGIN OF THE FUGITIVE CLAUSE.

The debates of the Convention attest the little contemporary interest in this clause. In all the general propositions or plans successively brought forward, from the meeting on the 25th of May, 1787, there was no allusion to fugitive slaves; nor was there any allusion to them, even in debate, till as late as the 28th of August, when, as the Convention was drawing to a close, they were incidentally mentioned in a discussion on another subject. The question was on the article providing for the privileges of citizens in different States. Here is the authentic report by Mr. Madison of what was said.

“General [Charles Cotesworth] Pinckney was not satisfied with
it. _He seemed to wish some provision should be included in
favor of property in slaves._”[335]

But he made no proposition. Mark the modesty of the suggestion. Here was no offer of compromise,--not even a complaint, much less a suggestion of corner-stone. The next article under discussion provided for the surrender of fugitives from justice. Mr. Butler and Mr. Charles Pinckney, both from South Carolina, now moved openly, but without any offer of compromise, to require “fugitive slaves and servants to be delivered up like criminals.” But the very boldness of the proposition drew attention and aroused opposition. Mr. Wilson, of Pennsylvania, afterwards the eminent judge and lecturer on Law, promptly remarked: “This would oblige the executive of the State to do it, _at the public expense_.” Mr. Sherman, of Connecticut, followed in apt words, saying that he “saw no more propriety in the public seizing and surrendering a slave or servant than a horse.” Under this proper pressure the offensive proposition was withdrawn. The article for the surrender of criminals was then adopted. On the next day, August 29th, Mr. Butler showed that the lovers of Liberty had not spoken in vain. Abandoning the idea of any proposition openly requiring the surrender of fugitive slaves, he moved an _equivocal_ clause, substantially like that now found in the Constitution, which, without debate or opposition of any kind, was unanimously adopted,--or, according to the report of Mr. Madison, _nem. con._[336] What could not be done directly was attempted indirectly; and the partisans of Slavery contented themselves, according to the teachings of old Polonius, with language which only “by indirections finds directions out.” But no “indirection” can find Slavery out. The language which sanctions such a wrong must be “direct.” Therefore, at the moment of seeming triumph, the partisans of Slavery failed.

Such is the indubitable origin of a clause latterly declared a compromise of the Constitution and a corner-stone of the Republic. That a clause for the hunting of slaves was recognized at the time as compromise or corner-stone is an absurdity disowned alike by history and by reason. That the clause was adopted, _nem. con._, with the idea, that, _according to any received rules of interpretation_, it could authorize the hunting of slaves, it is difficult to believe. The very statement that it was adopted _nem. con._ shows that it must have been regarded, _according to received rules of interpretation_, as having no “positive” character; for there were eminent members of the Convention whose declared opinions must have prevented them from consenting to any such proposition, if it were supposed for a moment to turn the Republic which they were then organizing into a mighty Slave-Hunter. There sat Gouverneur Morris, who only a short time before exclaimed in the Convention: “_He never would concur in upholding domestic Slavery._ It was a nefarious institution. It was the curse of Heaven on the States where it prevailed.”[337] There sat Oliver Ellsworth, afterwards Chief Justice, who said, in words which strike at all support of Slavery by the National Government: “The morality or wisdom of Slavery are considerations belonging to the States themselves.”[338] There sat Elbridge Gerry, afterwards Vice-President, who openly declared that “we had nothing to do with the conduct of the States as to slaves, _but ought to be careful not to give any sanction to it_.”[339] There sat Roger Sherman, who avowed that he was “opposed to a tax on slaves imported, as making the matter worse, _because it implied they were property_.”[340] And, greatest of all, there sat Benjamin Franklin, who, by character and conviction, in every fibre of his moral and intellectual being, was pledged against any sanction of Slavery. Who can suppose that these wise and illustrious patriarchs of Liberty all consented, _nem. con._, not only to sanction Slavery and to recognize property in man, but to put a kennel of bloodhounds into the Constitution, ready to hunt the flying bondman? They did no such thing; or, if it is insisted, _contrary to received rules of interpretation_, that such must be the signification of their language, clearly they did not understand it so. Doubtless there were members of the Convention who, in passion for Slavery, cheered themselves with the delusion that they had adequately described, in “positive” terms, the pretension they hoped to embody in the Constitution; but the _legal meaning_ of this provision must be determined, not by the passion of such members, but by the actual language employed, according to received rules of interpretation, from which there is no appeal. Other rules may be set aside as inapplicable; but the rule, which, in presence of any doubtful phrase, any indirect language, or any word capable of a double sense, requires that the interpretation shall be _in favor of Liberty_, is the most commanding of all.

Thus, when this clause took its place in the Constitution, _nem. con._, it was clearly a cipher. It meant nothing, or at least nothing “odious.” This conclusion becomes still more apparent in the light of two special incidents, which cannot be forgotten in determining the validity of any claim for Slavery under equivocal words. The first is the saying of Mr. Madison, which he has recorded in the report of the Convention, that it was “wrong to admit in the Constitution the idea that there could be property in men.”[341] Admirable words, constituting a binding rule of interpretation. And yet, in the face of this declaration, it is insisted that the “idea that there could be property in men” is embodied in the double-faced words of the fugitive clause. But as the words are susceptible of two meanings, clearly they should be interpreted so as to exclude what is “wrong.” The other incident furnishes the same lesson in a manner more pointed still. It appears that on the 13th of September, 1787, a fortnight after the fugitive clause was adopted in its earliest form, and while the Convention was considering the report of its committee on style and arrangement, “On motion of Mr. Randolph, the word ‘_servitude_’ was struck out and ‘_service_’ unanimously inserted, the former being thought to express the condition of slaves, _and the latter the obligations of free persons_.”[342] Thus the word “service” ceases even to be equivocal, for it was unanimously adopted as expressing “the obligations of free persons.” And such it would have continued to express always, if Slavery had not unhappily triumphed over the National Government in all departments, executive, legislative, and judicial.