Chapter IX: Section 2: Congress shall have power to enforce this (2)

Or let them be guided by that other teacher, Lord Chatham, when he said:--

“With respect to the decisions of courts of justice, I am
far from denying them their due weight and authority; yet,
placing them in the most respectable view, I still consider
them, not as law, but as an evidence of the law; and before
they can arrive even at that degree of authority, it must
appear that they are founded in and confirmed by reason,--that
they are supported by precedents taken from good and moderate
times,--that they do not contradict any positive law,--that
they are submitted to without reluctance by the people,--that
they are unquestioned by the legislature (which is equivalent
to a tacit confirmation),--_and, what in my judgment is by far
the most important, that they do not violate the spirit of the
Constitution_.”[291]

Or let them go back to that early Spanish testimony against the Slave-Trade and Slavery, when De Soto, in lectures at Salamanca, thus spoke:--

“It is affirmed that the unhappy Ethiopians are by fraud or
force carried away and sold as slaves. If this is true, neither
those who have taken them, nor those who purchased them, nor
those who hold them in bondage can ever have a quiet conscience
till they emancipate them, _even if no compensation should be
obtained_.”[292]

Or, let them accept the unanswerable judgment of that acute moralist, the late Archbishop Whately, who in simple words shows the superior title of the slave:--

“A slave cannot fairly be called a thief for taking anything
from his master, or for stealing his own liberty. He may be
considered as in an enemy’s country, in the midst of those who
recognize no rights of his as against them, and who therefore
have no rights as against him.”[293]

If courts were thus inspired, it is easy to see that Slavery would disappear under righteous judgment.

* * * * *

2. Unhappily, courts will not perform the duty of the hour, and we turn elsewhere. Appeal must be made to Congress; and here, as has been fully developed, the powers are ample, unless in their interpretation you surrender in advance to Slavery. By a single brief statute, Congress may sweep Slavery out of existence. Patrick Henry saw and declared, that, under the influence of a growing detestation of Slavery and the increasing “urbanity” of the people, this must be expected, while all the capacious war powers proclaim trumpet-tongued that it can be done constitutionally, and the peace powers echo back the war powers.

Here we encounter again the “execrable” pretension of property in man, with the attendant claim of “just compensation” for the renunciation of Heaven-defying wrongs. But this is no more incident to abolition by Act of Congress than by Amendment of the Constitution; so that, “if just compensation” can be discarded in one case, it can be in the other. But the votes on the latter proposition already taken in the Senate testify that it is discarded. Sir, let the “execrable” pretension never again be named, except for condemnation, no matter how or when it appears, or what form it takes. Let the “idea,” originally branded as so “wrong” that it could not find place in the Constitution, never find place in our debates.

Even if Congress be not prepared for that single decisive measure promptly ending this whole question and striking Slavery to death, there are other measures by which the end may be hastened. The towering Upas may be girdled, even if not felled at once to earth. Already, by Acts of Congress, Slavery is abolished in the national capital and in the national territories. This is not enough.

The Fugitive Slave Bill, conceived in iniquity, and imposed upon the North as a badge of subjugation, may be repealed.

The coastwise Slave-Trade may be deprived of all support in the statute-book.

The traffic in human beings, as an article of “commerce among the States,” may be extirpated.

And, above all, that odious rule of evidence, so injurious to justice and discreditable to the country, excluding the testimony of colored persons, may be abolished, at least in national courts.

And there is one other thing to be done. The enlistment of colored persons must be encouraged by legislation in every possible form; for enlistment is emancipation. That contract whereby the soldier-slave promises service at hazard of life, like the contract of marriage, fixes the equality of the parties, which Congress, for the national defence, and the national character also, will sacredly maintain.

All these things at least may be done, and, when they are done, Heaven and Earth will be glad, for they will have assurance that all will be done.

* * * * *

3. Nor will even these suffice. The people must be summoned to confirm the whole work. It is for them to put the capstone upon the sublime structure. An Amendment of the Constitution may do what courts and Congress decline to do, or, even should they act, it may cover their action with its panoply. Such an Amendment will give completeness and permanence to Emancipation, while bringing the Constitution into avowed harmony with the Declaration of Independence. Happy day, long wished for, destined to gladden those beatified spirits who have labored on earth to this end, but died without the sight!

And yet I would not indiscreetly take counsel of our hopes. From the nature of the case, such an Amendment cannot be consummated at once. Time must intervene, with opportunities of opposition. It can pass Congress only by a vote of two thirds in both branches; and then it must be adopted by the Legislatures of three fourths of the States. Even under most favorable circumstances, it is impossible to say when it can become part of the Constitution. Too tardily, I fear, for all the good that is sought. Therefore I am not content with this measure alone. It postpones till to-morrow what ought to be done to-day; and I much fear that it will be made the apology for indifference to other efforts of direct practical value,--as if it were pardonable to neglect for a day the duties we owe to Human Rights.

“To-morrow, and to-morrow, and to-morrow
Creeps in this petty pace from day to day,
To the last syllable of recorded time;
And all our yesterdays have lighted fools
The way to dusty death.”

When will rise that to-morrow’s sun, to witness that other sun filling the land with the light of Freedom?

For myself, let me confess, that, in presence of the mighty events now thronging, I feel how insignificant is any individual, whether citizen or Senator; and yet, humbly longing to do my part, I would not put off till to-morrow what ought to be done to-day,--especially can I not consent to this great postponement. Our fellow-men are in bonds: they must be relieved. Most beautiful that ancient story, where the philosopher, while on a mission to a great king for the release of captives, being invited to sup, replied in the famous words of Ulysses, “O Circe! what man of a right mind could let himself touch meat or drink before he had ransomed his companions and beheld them with his eyes?” The philosopher did not speak in vain. The captives were set free at once.[294]

Beyond my general desire to see an act of universal emancipation, at once and forever settling this great question, so that it may no longer be the occasion of strife between us, there are two other objects ever present to my mind as a practical legislator: first, to strike at Slavery wherever I can hit it; and, secondly, to clear the statute-book of all existing supports of Slavery, so that this great wrong may find nothing there to which it can cling for life. Less than this, at the present moment, when Slavery is still menacing, would be abandonment of duty.

So long as a single slave continues anywhere beneath the flag of the Republic, I am unwilling to rest. Too well I know the vitality of Slavery with its infinite capacity of propagation, and how little Slavery it takes to make a Slave State with all the cruel pretensions of Slavery. The down of a single thistle is full of all possible thistles, and a single fish is said to contain many millions of eggs, so that the whole sea may be stocked from its womb.

* * * * *

The modern founder of political science, Machiavelli, writer as well as statesman, in his most instructive work, the Discourses on Livy, has a chapter entitled, “For a Republic to have long life, it is necessary to bring it back often to its origin”:[295] where he shows how the native virtue in which a Republic was founded becomes so far corrupted that in process of time the body-politic is destroyed,--as in the case of the natural body, where, according to the doctors of medicine, something is daily added, from time to time requiring cure. The remarkable publicist teaches under this head that Republics are brought back to their origin, and to the principles in which they were founded, by pressure from without, where prudence fails within; and he affirms that the destruction of Rome by the Gauls was necessary, in order that the Republic might have a new birth, with new life and new virtue,--all of which ensued, when the barbarians were driven back. If the illustration is fanciful, there is wisdom in the counsel; and now the time has come for its application. The Gauls are upon us, not from a distance, but domestic Gauls, flinging their swords, like Brennus, into the scales; and we, too, may profit by the occasion to secure for the Republic a new birth, with new life and new virtue. Happily, the way is easy; for there is no doubt of its baptismal vows, or the declared sentiments of its origin. There is the Declaration of Independence: let its solemn promises be redeemed. There is the Constitution: let it speak according to the promises of the Declaration. Let it speak, and the last act of the great American tragedy will be ended, while the stage is piled with corpses. From its early beginning in the hold of the Dutch ship on its way to Jamestown, as the Pilgrims in the Mayflower were on their way to Plymouth, down to this bloody Rebellion, Slavery has been a prolonged tragedy. History and Art will hereafter portray the scenes. Nor can its death be otherwise than an epoch, not only for our own country, but for mankind. Slavery in its distant origin was the substitute for death. The slave was allowed to live, but without the rights of man. Instead of death in the grave with its insensibility and decay, there was death in life with constant degradation and suffering. Hence in all ages the awakened sympathies of the good and humane,--heard sometimes in sorrow for the unhappy fate of an individual, and then in appeal for a race.

How truly affecting are the words of Homer, depicting the wife of Hector toiling as bondwoman at the looms of her Grecian master,--or those other undying words which exhibit man in Slavery as shorn of half his worth! The story of Joseph sold by his brothers has been repeated in every form, touching innumerable hearts. Borrowed from the Bible, it figured in the moralities of the Middle Ages and in the later theatre of France. How genius triumphed over Slavery is part of this testimony. Æsop, the fabulist,--one of the world’s greatest teachers, if not lawgivers,--was a slave; so also was Phædrus, the Roman fabulist, whose lessons are commended by purity and elegance; and so, too, was Alcman, the lyric, who shed upon Sparta the grace of poesy. To these add Epictetus, sublime in morals,--and Terence, incomparable in comedy, who gave to the world that immortal verse, which excited the applause of the Roman theatre, “I am a man, and nothing which concerns mankind is foreign to me.” Nor should it be forgotten that the life of Plato was checkered by Slavery.

In later days the sympathy is more for a race than for individuals. Unhappily, the ban of color has become a certificate of Slavery, and a large portion of the human family, whose offence was a skin darkened by the hand of God, has been degraded to the condition of chattels. The sympathies once awakened only for illustrious gifts are now bestowed upon suffering humanity, marking an advance in civilization. To be a man is a sufficient title-deed for the rights of man, which we seek to establish. But their triumph among us will be the certain herald of triumph everywhere. In other places Slavery may linger yet a little longer; but its death here will make its continued existence impossible wherever civilization prevails.

* * * * *

Mr. President, the immediate question before us is on the proposition to prohibit Slavery in our country by Constitutional Amendment; and here I hope to be indulged with regard to the form it should take. A new text of the Constitution cannot be considered too carefully even in this respect, especially when it is nothing less than a new article of Freedom. For a moment we are performing something of that duty which belongs to the _conditores imperiorum_, placed foremost by Lord Bacon in “the degrees of sovereign honor,”[296] and “words” become “things.” From the magnitude of the task we may naturally borrow circumspection, and I approach this part of the question with suggestion rather than argument.

Let me say frankly that I should prefer a form of expression different from that having the favor of the Committee. They have selected what was intended for the old Jeffersonian Ordinance, sacred in our history, although, let me add, they have not imitated it closely. But I must be pardoned, if I venture to doubt the expediency of perpetuating in the Constitution language which, if it have any signification, seems to imply that “Slavery or involuntary servitude” may be provided for “the punishment of crime.” Instances anterior to the Constitution show the origin of this exception. In the absence of penitentiaries, Slavery was a punishment adjudged by courts. According to early Colonial records in Massachusetts, one William Andrews “was censured to be severely whipped and delivered up as a slave to whom the Court shall appoint.”[297] But it cannot be intended to sanction such judgment now. There can be no reason why Slavery should not be forbidden positively and without exception, especially as “imprisonment” cannot be confounded with this “peculiar” wrong. If my desires could prevail, I would put aside the Ordinance, and find another form.

I know nothing better than this:--

“All persons are equal before the law, so that no person can
hold another as a slave: and the Congress shall have the power
to make all laws necessary and proper to carry this declaration
into effect everywhere within the United States and the
jurisdiction thereof.”

By the latter clause the declaration is plainly applicable to the States, while the earlier words assert the equality of all persons before the law,--a fruitful principle, assuring to all the same rights. _Inter pares non est potestas_, “Among equals there is no superiority,” is a received maxim of law, expressing a natural truth. Therefore, where all are equal, there can be no Slavery; so that, in declaring equality before the law, you make Slavery, alike with superiority, impossible. This language, though unknown to the Common Law and new in our country, has a fixed place in modern constitutional history. To understand how it has reached its present authority we must repair for a moment to France, so rich in experience and in genius.

Bills of Rights in England were moderate in terms, compared with our Declaration of Independence, and with the Declarations of Rights first announced by France in the throes of terrible revolution, and since recognized among the permanent triumphs of that prodigious outbreak. Until this period there had been no written Constitution in France, though since there have been many in succession. The earliest, in September, 1791, was preceded by a Declaration of Rights, proposed by Lafayette, which, after setting forth that “ignorance, forgetfulness, or contempt of the rights of man are the sole causes of public evils and of the corruption of Governments,” undertakes to announce what it calls “the natural rights of man, inalienable and sacred”; and this is done--

“To the end that this Declaration, being constantly present to
all the members of the social body, may incessantly recall to
them their rights and their duties; to the end that the acts of
the legislative power, and those of the executive power, being
every moment capable of comparison with the object of every
political institution, may be more respected by them; to the
end that the claims of the citizens, being henceforth founded
on simple and incontestable principles, may always turn to the
maintenance of the Constitution and to the happiness of all.”

This too elaborate, but instructive preamble, is followed by an article with a generality of expression not unlike that of our own Declaration:--

“ARTICLE I. Men are born and continue free and _equal in
rights_.”

In the sixth article of the Declaration this is explained by declaring that the law “ought to be the same for all, whether it protect, whether it punish,” and then it speaks of “all citizens being _equal in its eyes_.”[298]

In June, 1793, another Constitution was adopted, which, after a brief preamble, opens with these articles:--

“ARTICLE I. The object of society is the common happiness.
Government is instituted to guaranty to man the enjoyment of
his natural and imprescriptible rights.

“ARTICLE II. These rights are equality, liberty, security,
property.

“ARTICLE III. _All men are equal_ by nature and _before the
law_.”[299]

Here the new statement begins to appear. Men are equal by nature and before the law.

“Equal before the law.” This term, which, by its essential accuracy and self-limitation, excludes all uncertainty, exaggeration, or vagueness, was already known in the literature of France. Voltaire, whose wonderful genius was so peculiarly French, with that constant clearness which is the boast of the French language, had used it in one of his philosophical poems, where political truth is commended in the manner of Pope. The first of these was in 1734, on “Equality of Conditions,” where he says, “Mortals are equal; their mask is different”; and then, “To have the same rights to happiness, this is for us the perfect and only equality”;[300] thus, like our Declaration of Independence, placing “the pursuit of happiness” among natural rights. This assertion of equal rights was defined in the poem on “The Law of Nature,” addressed to Frederick, King of Prussia, and written in 1752, where he says, “_The law_ in every State ought to be universal; _mortals_, whoever they may be, _are equal before it_.” But I cite the precise words:--

“_La loi_ dans tout État doit être universelle:
Les mortels, quels qu’ils soient, _sont égaux devant elle_.”[301]

This happy statement naturally passed from the poem to the Constitution.

It was much to declare equality; it was more still to do it with accuracy of form defying assault. This conquest of the Revolution assumed its most precise enunciation on the restoration of the Bourbons, when it appeared as the first article in the Constitutional Charter of Louis the Eighteenth, promulgated in 1814.

“ARTICLE I. _Frenchmen are equal before the law_, whatever may
otherwise be their titles and their ranks.”[302]

And it was repeated by Napoleon, April 22, 1815, on his return from Elba.[303]

At the installation of Louis Philippe as king, in August, 1830, with Lafayette by his side, the same declaration was placed at the head of the Constitutional Charter.[304]

Meanwhile this expression passed from France into the Constitutions of other countries: of Holland, in 1801, where the declaration was, “All members of society are equal before the law, without distinction of rank or birth”;[305] of the Grand Duchy of Warsaw, created by Napoleon in 1807, where we meet these terms: “Slavery is abolished; all citizens are equal before the law”;[306] of the Canton of Zug, in Switzerland, in 1814, where, among “General Principles,” is the article, “All the citizens of the Canton are equal before the law, and there are no subjects in the Canton of Zug”;[307] of Bavaria, in 1818, where “equality of the rights of the citizens before the law” is enumerated in the preamble among “the principal features of the Constitution”;[308] of Bolivia, in South America, where in 1825 we meet the words, “All citizens are equal before the law”;[309] of Portugal, in 1826, where it is declared, “The law is equal for all, whether it protects, whether it punishes”;[310] of Brazil, where in the same year was a similar declaration;[311] and then of Greece, not only in the Provisional Constitution of 1822, but in the permanent Constitution of 1827, when the Greek nation “proclaims before God and before man its political existence and its independence,” and then among its fundamental principles declares, “All Greeks are equal before the law.”[312]

The French Revolution of 1830 quickened this statement anew. Belgium adopted it in 1831,[313] and even Austria in 1849; the latter power as follows: “All subjects are equal before the law, and judged according to the same fundamental rights”;[314] and Sardinia, in 1848, as follows: “All natives of the kingdom, whatever their titles or their rank, are equal before the law.”[315] The same words reappear in the Fundamental Statute of Italy, in 1861, when that classical land became a nation.[316]

Doubtless the extensive adoption of this formula testifies to its value in expressing an important principle, being nothing less than the primal truth declared by our fathers. All will confess its comparative precision. The sophistries of Calhoun, founded on the obvious inequalities of body and mind, are all overthrown by this simple statement, which, though borrowed latterly from France, is older than French history. I have had occasion before to remind the curious student that the ancient Greek of Herodotus supplies a single word for this phrase, when it is said that “the Government of the many has the most beautiful name of ἰσονομία,” or _equality before the law_.[317] The father of history was right. The name is most beautiful. But he did not see all its beauty; nor did the three Persian satraps, whose dialogue he reports,[318] know how great a truth was revealed. Not till after generations and ages had passed was _equality before the law_ authoritatively declared; and now, while involving it as a rule, we repair to that bountiful Greek tongue, which, at that early day, by a single word, anticipated our modern exigency. Such a word, originally adopted in our Declaration of Independence, would have superseded criticism.

Enough has been said to explain the origin of a term which has played an important part. Though traced to distant antiquity, and now adopted in various countries, it derives its modern authority from France, where it is the “well-ripened fruit” of unprecedented experience in the discussion of great problems in political science. Naturally, it does not come from England; for the idea finds little favor in that hierarchical kingdom. In France Equality prevails more than Liberty: in England Liberty more than Equality. Here among us both should find a home; and such a declaration as I now propose, embodying _Liberty and Equality_, will keep the double idea perpetual in the public mind and conscience, “to warn, to comfort, and command.” The denial of Liberty in the Rebel States begins with the denial of Equality; so that our work is not completely done without the assertion of both principles.

* * * * *

In making Equality the fundamental principle, underlying Liberty itself, I follow reason and authority. Clearly, where all are equal, there can be no Slavery. Equality makes Slavery impossible, while it broadens Liberty into that community of right which is the essence of Republican Government. A remarkable French writer, La Boëtie, whose short life was brightened by the friendship of Montaigne, well exhibits the dependence of Liberty upon Equality. In his little work, “Voluntary Servitude,” which inspires astonishment in all who read it, while vindicating and exalting Liberty as derived from Nature, and setting forth how “this good mother” has given to us all the whole earth for a home, has lodged us all in the same house, has fashioned us all according to the same pattern, so that each can see and recognize one in another, and then, alluding to the gift of voice and speech for our better mutual acquaintance and fraternity, also to the means by which Nature ties and binds so strongly the knot of our alliance and society, also to the manifestation in all things that she did not wish so much to make us all united as all one, the precocious philosopher declares: “There can be no doubt that we are all naturally free, _since we are all companions_, and it cannot fall into any human head that Nature has put anybody in slavery, _having put us all in company_.”[319] Here is exhibited that controlling Equality which has prevailed in France.

A recent English publicist and professor exhibits also the predominance of this principle: I refer to Mr. Maine, who, in his work on “Ancient Law,” after tracing it to the jurisconsults of the Antonine era, and asserting that it “is one of a large number of legal propositions which in progress of time have become political,” attests the influence of France, which, according to him, is seen in our own Declaration of Independence, where what he calls “the specially French assumption,” that all men are born equal, is joined with what he calls “the assumption more familiar to Englishmen,” that all men are born free; and he adds, that, “of all the ‘principles of 1789,’ it is the one which has been least strenuously assailed, which has most thoroughly leavened modern opinion, and which promises to modify most deeply the constitution of societies and the politics of states.”[320] And now I venture to suggest that this guiding principle be recognized by us in words commended by usage and intrinsic character.

* * * * *

Should the Senate not incline to this form, there is still another I would suggest:--

“Slavery shall not exist anywhere within the United States or
the jurisdiction thereof; and the Congress shall have power to
make all laws necessary and proper to carry this prohibition
into effect.”

This is simple, and avoids all language open to question. The word “Slavery” is explicit, and describes precisely what you propose to blast. There is no doubt with regard to its signification. It cannot be confounded with “the punishment of crime”; for imprisonment is not Slavery; nor can any punishment take the form of a wrong which stands by itself, peculiar, terrible, outrageous. Therefore nothing about punishment should find place in the rule we now ordain. Beyond this I would avoid technicality, which is out of place in such a text; and here I am encouraged by other examples. An early Constitution of France prohibited Slavery in every form, when it said: “Every man can engage his time and his services, but he cannot sell himself, nor be sold; his person is not alienable property.”[321] That of the Greek nation was equally thorough: “It is not permitted in Greece to sell or to buy men; every slave, whatever may be his nation or religion, is free from the time he puts foot on Greek territory.”[322] Nothing can be simpler than this prohibition in the Bavarian Constitution: “Servitude is everywhere suppressed”;[323] or than this in the Constitution of Wurtemberg: “Serfdom is forever abolished”;[324] or than this in the Constitution of the French Republic in November, 1848: “Slavery cannot exist upon any French soil.”[325] Nor can anything be more simple and thorough than these words from Hayti: “Slaves cannot exist on the territory of the Republic. Slavery there is forever abolished.”[326] Naturally a Republic of enfranchised slaves made this the first article of its Constitution, while sense as well as instinct supplied the form. And, Sir, in all these historic instances you will remark that there is nothing technical.

If the Senate is determined to follow the Jeffersonian Ordinance, then I prefer that it should be the Ordinance actually, and not as reported by the Committee. And I would complete the work by expelling from the Constitution all those words so often misconstrued, perverted, and tortured to a false support of Slavery.

But while desirous of seeing the great rule of Freedom we are about to ordain embodied in a text which shall be like the precious casket to the more precious treasure, yet I confess that I feel humbled by my own endeavors. And whatever the judgment of the Senate, I am consoled by the thought that the most homely text containing such a rule will be more beautiful far than any word of poet or orator, and will endure to be read with gratitude, when the lofty dome of this Capitol, with the statue of liberty which crowns it, has crumbled to earth.

CASTE AND PREJUDICE OF COLOR.

LETTER TO THE YOUNG MEN’S ASSOCIATION OF ALBANY, APRIL 16, 1864.

The managers of the Young Men’s Association of Albany, after
excluding from their lecture-room all persons not of an
approved color, invited Mr. Sumner to speak on Lafayette. He
returned the following answer.

SENATE CHAMBER, April 16, 1864.

SIR,--You invite me to deliver an address on Lafayette before the
Young Men’s Association of Albany. In view of a recent incident
in the history of your Association, I am astonished at the
request.

I cannot consent to speak of Lafayette, who was not ashamed to
fight beside a black soldier, to an audience too delicate to sit
beside a black citizen. I cannot speak of Lafayette, who was a
friend of universal liberty, under the auspices of a society
which makes itself the champion of caste and vulgar prejudice.

I have the honor to be, Sir, your obedient servant,

CHARLES SUMNER.

C. W. DAVIS, Esq., _Cor. Sec., &c., Albany_.

FINAL REPEAL OF ALL FUGITIVE SLAVE ACTS.

SPEECH IN THE SENATE, ON A BILL FOR THIS PURPOSE, APRIL 19, 1864.

December 10, 1863, Mr. Sumner gave notice of his intention
to introduce a bill to repeal all acts for the rendition of
fugitive slaves.

February 8, 1864, in pursuance of previous notice, Mr. Sumner
asked and obtained leave to introduce the bill above mentioned,
which was read twice by its title, and referred to the Select
Committee on Slavery and Freedmen.

February 29th, Mr. Sumner reported from the Committee a bill
with an accompanying report, of which ten thousand extra copies
were ordered to be printed.[327] There was a minority report by
Mr. Buckalew, of Pennsylvania, which was also printed in equal
number.

The bill was in the following terms:--

“A Bill to repeal all acts for the rendition of fugitives
from service or labor.

“_Be it enacted by the Senate and House of Representatives
in Congress assembled_, That all Acts of Congress, or parts
of Acts, providing for the rendition of fugitives from
service or labor, be and the same are hereby repealed.”

March 7th, Mr. Sumner asked the Senate to take up the bill,
with a view to make it the special order for a future day.
This motion was agreed to, and then, on his further motion, it
was made the special order for March 9th. The disposition to
delay showed itself the next day, when Mr. Davis, of Kentucky,
proposed to make another question a special order for the same
time. Mr. Sumner reminded him that the repeal of the Fugitive
Slave Act was a special order at that time. Mr. Davis replied,
“I suppose that can wait a little.” Mr. Sumner: “I do not wish
to have that wait at all. It is a disgrace to the country
and the statute-book which we want to get rid of.” When it
was called up at the appointed time, Mr. Davis expressed a
desire for postponement, and then, on motion of Mr. Sumner,
at the suggestion of Mr. Hendricks, of Indiana, it was made
the special order for March 16th, at one o’clock. Owing to the
pendency of an Appropriation Bill, as unfinished business, on
this day, it lost its place.

March 18th, Mr. Sumner, finding that Mr. Davis was not ready
to proceed with his remarks, moved to make the bill the
special order for March 22d, at one o’clock. This motion was
lost,--Yeas 19, Nays 20. Mr. Sumner then said: “I now deem it
my duty to give notice that I shall take every proper occasion
to call the bill up, and press its consideration upon the
Senate.”

Meanwhile the attention of the Senate was occupied by other
things, especially by the Constitutional Amendment abolishing
Slavery.

April 18th, Mr. Sumner appealed to Mr. Fessenden, who had
charge of the Legislative Appropriation Bill, then under
consideration, to yield, so that the other bill could be
considered. At this time he said: “The Senator says it will
make a great deal of debate. I doubt if it will. I think the
topic has already been amply discussed in connection with other
matters. I have several times yielded to amiable pressure,
reluctantly, always against my own sense of duty, but from
desire to oblige associates in this body. One Appropriation
Bill has been interposed, on the motion of the Senator from
Maine, which has taken several days. Now, I submit, the time
has come when this bill ought to be considered. Let us give one
day to it, at least. I say this with reluctance, because I see
that the Senator has come prepared to go on with his bill, and
I respect so much the order of business and the preparations
of Senators to do their part, that I do not interfere, except
most reluctantly. I am for the Appropriation Bill. The Senator
knows that I am ever in my seat to sustain all his motions on
Appropriation Bills; but this bill is committed to my care, and
I therefore ask him to allow it to be proceeded with to-day.
There is in the Appropriation Bill an innate vitality; it
cannot lose by delay; the public interests cannot suffer; but I
do not doubt that all these, and the good name of the country,
suffer by every day’s delay in the repeal of the Fugitive Slave
Act.” Mr. Fessenden said that Mr. Sumner was “at liberty, if
he chose, to move that that bill be taken up and this be laid
aside,” and that he should ask the judgment of the Senate.

April 19th, Mr. Sumner moved that the Senate proceed with the
bill, and this motion was agreed to,--Yeas 26, Nays 10. The
Senate, as in Committee of the Whole, considered the bill,
and it was reported to the Senate without amendment, ordered
to be engrossed for a third reading, and was read the third
time, without a division, and without a word of debate. It only
remained to put the question on its final passage, when Mr.
Foster, of Connecticut, remarked that he was “not prepared to
see this bill passed just now”; he had “supposed the Senator
from Massachusetts was to address the Senate upon it.” Mr.
Sumner had “not the least desire to address the Senate”; he did
“not wish to say a word upon it.” Mr. Foster “did not apprehend
that the bill was to be put on its passage at the present time,
and expected to say something upon it.” Mr. Pomeroy, of Kansas,
remarked, “We may as well pass the bill now.” The Chair put
the question, and the yeas and nays were ordered, when Mr.
Hendricks spoke against the bill. He said: “It may be that our
fathers erred in the agreement among themselves that a fugitive
slave should be returned; it may be that it was a mistake on
their part; but while their agreement stands, and while my oath
is upon my conscience to respect that agreement, I cannot vote
for a bill like this.” The debate was opened.

Mr. Sherman, of Ohio, had “some doubt about the expediency
of now repealing the law of 1793.” Mr. Sumner said that the
Committee “felt that we had better make a clean thing, purify
the country, and lift it before foreign nations, which could
be only by washing our hands of Slavery.” Mr. Sherman was “not
guided exactly by the motives of the honorable Senator from
Massachusetts”; he would “give to the people of the Southern
States, the few that are left who have the right to enforce
the Constitution against us, their constitutional rights fully
and fairly.” According to him, “the law of 1793 was framed by
the men who framed the Constitution,” and “has been declared
to be valid and constitutional by every tribunal that has
acted upon it.” Mr. Sumner replied, that “it was declared to
be unconstitutional in certain particulars by the Supreme
Court of the United States in the Prigg case, and it is among
the records in the life of Judge Story, who gave the opinion
in that case, that the fatal objection of a failure to give
a trial by jury in a case of human freedom was never argued
before the Court, and that he personally considered it an
open question.” Mr. Sherman preferred “not to repeal the law
of 1793, about the constitutionality of which he had little
doubt.” Mr. Sumner replied, “Then the Senator has little doubt
that under the Constitution a human being may be given over
to Slavery without a trial by jury.” Mr. Sherman “would not
go into the discussion of that question.” Finding that the
bill had passed the stage when it could be amended, he moved
to reconsider the vote ordering it to be engrossed and read a
third time, which was done, when he moved to add these words:--

“Except the Act approved February 12, 1793, entitled ‘An
Act respecting fugitives from justice and persons escaping
from the service of their masters.’”

Mr. Henderson, of Missouri, proposed to repeal the Act of 1850,
leaving the Act of 1793 in force. Mr. Sherman thought “we had
better repeal all the laws on the subject except the Act of
1793.” Mr. Reverdy Johnson said: “The Constitution as it is
now, according to my interpretation of it, not only authorized
the passage of the Act of 1793 and the passage of the Act of
1850, but made it the duty of Congress to pass some law of that
description.” Mr. Sumner followed.

MR. PRESIDENT,--I shall not be carried into extended debate, but shall content myself with replying directly to what has been said on the other side.

There is, first, the Senator from Ohio [Mr. SHERMAN], who intervened to arrest the generous purpose of the Senate, as it was about to vote, by a motion to preserve the old Act of 1793. Strange that now, while we are in deadly conflict with Slavery, it should be proposed to keep alive an ancient support of Slavery. For the Senator gravely insists, and the Senator from Maryland [Mr. REVERDY JOHNSON] insists with him. But the Senator from Ohio does not seem aware of the character of the statute he would preserve. Let me remind him that by this enactment, towards which he is so tender, a fellow-man may be hurried before a magistrate and doomed to Slavery without trial by jury. Can this be constitutional? Will the Senator sanction such a thing?

Then the other Senator, who is so familiar with our jurisprudence, takes exception to the statement that Mr. Justice Story admitted that the constitutionality of the Act of 1793 had never been affirmed by the Supreme Court. He thinks that this learned judge never made any such statement. But he is mistaken. Here is a volume containing the Life and Letters of Joseph Story, carefully prepared and published by his son. I turn to the passage.

“One prevailing opinion, which has created great prejudice
against this judgment, is, that it denies the right of a person
claimed as a fugitive from service or labor to a trial by
jury. This mistake arises from supposing the case to involve
the general question as to the constitutionality of the Act of
1793. But in fact no such question was in the case, and the
argument that the Act of 1793 was unconstitutional, because
it did not provide for a trial by jury according to the
requisitions of the sixth [seventh] article in the Amendments
to the Constitution, having been suggested to my father, on his
return from Washington, _he replied, that this question was
not argued by counsel nor considered by the Court, and that he
should still consider it an open one_.”[328]

Evidently, according to this authentic record by his son, the necessity of a trial by jury was not argued by counsel nor considered by the Court, while the judge for himself declared that he should consider it an “open” question; so that the constitutionality of the Act in this important respect has not been affirmed. But the Senate is now asked to affirm it. We are asked to vote that a fellow-man be handed over to Slavery without trial by jury. To me this proposition is hateful beyond the power of words to express.

But the Senator, not content with affirming the constitutionality of the Act of 1793, has plunged into a general discussion on the fugitive clause of the Constitution. He insists laboriously that it was intended to cover fugitive slaves. When I reminded him that its authors might have intended it to cover fugitive slaves, without succeeding in their attempt, he still insists that it does cover fugitive slaves. Well, Sir, there I meet him point-blank. I insist, that, whatever the original intention of the framers of that clause, they did not leave it so as to cover fugitive slaves. It remains a question of construction, and the language employed is not applicable to fugitive slaves. It does not describe them, and cannot by any just tribunal be extended to embrace them. If the prepossessions of the Senator were more evenly balanced, I should not doubt his judgment on this point, which in the light of jurisprudence is so clear.

There is a rule of interpretation which the Senator will not call in question. Where any language is open to two constructions, one beneficent and the other odious, _that which is odious must be rejected_. I do not stop to adduce authorities. The rule is unquestionable, and the authorities are ample. But keep in mind the conclusion: that which is odious must be rejected. Now the Senator has already admitted that the language of the clause is applicable to apprentices. Very well. That is enough. In its application to apprentices, redemptioners, and the like, it is exhausted, so that it cannot be made to cover a slave without offending against the rule requiring us to adopt the construction least odious. And, Sir, if we go further and closely scan the clause, we find that the words employed are all applicable to a relation of _contract_ or _debt_, and not to a relation founded on _force_. The clause is applicable to a “person,” and not to a _thing_, and this “person” is to be surrendered on claim of the person to whom his service or labor may be _due_. But, clearly, no labor or service can be _due_ from slave to master. The whole pretension is an absurdity. And if you give to this word its legitimate application, you must restrict it to a case of _contract_ or _debt_. In this reply I omit the argument founded on history, and the well-known opinions of leading minds in the Convention, confining myself to the text of the Constitution.

But the Senator dwells especially on the words “held to service or labor in one State _under the laws thereof_,” and triumphantly declares that slaves were included under this language. Here again he is mistaken. Apprentices and redemptioners were held under “laws”; but I need not remind the Senator of the admission repeatedly made on this floor by Mr. Mason, author of the last Fugitive Slave Act, that there were no “laws” for Slavery in any Slave State,--at least, that none could be produced. Besides, as a jurist, the Senator surely will recollect the ancient truth, that injustice cannot be “law,” but is always to be regarded as an “abuse” or a “violence,” even though expressed in the form of “law.” In presence of this principle, which has the sanction of as great a lawyer as St. Augustine, and in the face of the positive assertion of Mr. Mason, that no “law” for Slavery can be found in the Slave States, what becomes of the argument of the Senator? Sir, the case is clear. No ingenuity of honest effort can ever make the words cited by the Senator, or any other words in that much debated clause, sanction Slavery and the hunting of slaves. To proceed with his argument, the Senator must begin by setting aside those commanding rules of interpretation which are binding on him as on myself. If, where words are susceptible of two significations, one beneficent and the other odious, the former only can be taken, then must the Senator restrict this clause to that signification which is not odious. And again, if every word is always to be construed so as most to favor Liberty, then must the Senator follow implicitly this rule. But these two rules make it impossible to torture the clause into any _odious_ or _tyrannical_ signification. They keep it clean and pure from Slavery.

Sir, one feels humbled by the necessity of this discussion,--that at this late day he should be called to vindicate the Constitution of his country against glosses and interpretations in the interest of Slavery. Pardon me, if, for a moment, leaving the two Senators who seek to foist Slavery into the Constitution, I turn to the question itself, not so much for argument as for statement. If I seem to repeat, it is because there are certain points which I desire to impress upon the Senate. To my mind nothing is clearer than that, according to unquestionable rules of interpretation, the clause of the Constitution, whatever the alleged intent of its authors, cannot be considered applicable to slaves. Such is Slavery, that, from the nature of the case, it cannot be sanctioned or legalized except by “positive” words. _It cannot stand on inference._ This rule, which no reasoning can shake, drove Lord Mansfield to his great judgment in Somerset’s case. African Slavery had for two generations prevailed in England. Eminent lawyers and judges had pronounced it legal. Some of the brightest names in Westminster Hall had given to it the support of professional opinion and the seal of judicial decision. At last a person at that time unknown, Granville Sharp, struck by the injustice of Slavery, devoted himself to consider the grounds on which its legality was recognized. He studied the laws of England, and all the various evidences of its Constitution. In the course of these studies he was gratified to find that there was no _positive_ establishment of African Slavery in England, and, indeed, that the words “Slave” and “Slavery” were nowhere to be found in the British Constitution. He next applied himself to the powerful array of well-known rules of interpretation, requiring, in case of doubt or question, that the interpretation should be on the side of Liberty, and especially that any man was “impious” and “cruel” who did not favor Liberty. Impiety and cruelty are not light burdens for an honest conscience. The conclusion was irresistible, that Slavery could not exist in England.

But the unanswerable argument of Granville Sharp was rejected at first by the bar, who regarded it as an attempted innovation. The direct precedents and the weight of authority were the other way, and this with most lawyers is enough. Harvey said that no person above “forty” accepted his discovery of the circulation of the blood. And Granville Sharp found himself in the same predicament. But this good man was not disheartened. He knew well that there was no statute of limitations against principles, and, better still, that principles must finally prevail over precedents. Principles are immortal, and bloom with perpetual youth: precedents are mortal, and die from age, decrepitude, and decay. Against principles precedents may for a while prevail; but the time comes when that which is mortal must yield to that which is immortal. In this conviction he persevered, until at last lawyers were convinced, and then the court pronounced in his favor.

The judgment of Lord Mansfield constitutes a landmark of law, to be remembered proudly, when all his contributions to commercial law and general jurisprudence are forgotten. It was a contribution to the British Constitution and to human rights. Like every principle of Natural Law, it approves itself at once to the reason and conscience. And this authority I now invoke in the interpretation of the Fugitive Clause.

* * * * *

I have already said too much. The argument on both sides is presented in the two reports of the Committee, or rather in the report of the Committee and the “views of the minority.” Senators, I doubt not, have already made up their minds, which no discussion can change. Of course, some may vote against the acts on one ground and some on another. The arguments are numerous. It is enough, if on any ground they vote to remove this shame from our statute-book.

I do not enter into details of the constitutional argument, whether Congress has power under the Constitution to legislate on this subject, or whether it may confide this great trust to a single magistrate without trial by jury. These are grave questions, worthy of debate, into which I am ready to enter, if the occasion requires. But I forbear. Often, in other times, I have discussed these questions in the Senate and before the people; but the time for discussion is passed. And permit me to confess my gladness in this day. I was chosen to the Senate for the first time immediately after the passage of the infamous Act of 1850. If at that election I received from the people of Massachusetts any special charge, it was to use my best endeavors to secure the repeal of this atrocity. I began the work in the first session that I was here. God grant that I may end it to-day!

Mr. President, one word more. The suggestion is too often made that this measure is not practical. Not practical! It is the favorite phrase. But this depends upon what Senators consider practical.

If it be practical to relieve the people from an unconstitutional and oppressive statute,--if it be practical to take away a badge of subjugation imposed by slave-masters during a brutal supremacy,--if it be practical to secure the good name of the Republic, still suffering immeasurably from this outrage,--if it be practical, at this moment of our own severe trial, to substitute justice for oppression, and thus secure the favor of Providence,--and, finally, if it be practical to strike at Slavery wherever we can hit it, and to relieve ourselves of all responsibility for this terrible wrong,--then is this measure eminently practical. It is as practical as justice, as practical as humanity, as practical as duty, which cannot be postponed.

But, independently of its intrinsic justice, this measure is recommended by an expediency of the highest character. I blush to plead in this way, but the occasion must be my apology. Senators are not aware how much our country suffers in the judgment of civilized nations from that accursed statute, which now for more than ten years has been a byword and hissing among men. Genius in some of its rarest creations has made it known, literature and art in every form have lent themselves to expose it, while the unutterable atrocities it has sanctioned have been carefully gathered together and circulated abroad as testimony against republican institutions. Since the outbreak of the Rebellion this statute has been constantly adduced by our enemies abroad, as showing that we are no better than Jefferson Davis and his slavemonger crew; for Slavery never shows itself worse than in the slave-hunter. Only within a few days there has appeared at New York, published for the fair, a photograph copy of a letter of the late Alexander von Humboldt, containing the following words: “I have the warmest attachment to your beautiful and liberal city, New York, but have earnestly and deeply regretted that Webster, whom I long respected, more than favored that _shameful_ law which still persecuted colored men after they had regained by flight their natural, inborn liberty, of which they had been robbed by Christians.” Humboldt was our friend, but he could not forbear characterizing this statute as “shameful.” Be assured, Sir, it is a burden for the national cause abroad which it ought not to bear. For the sake of our cause, and that it may have new strength in the swelling sympathies of the civilized world, it should be repealed at once, without hesitation.