Volume 10 — 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.

It is not doubted that at home in the Slave States the fugitive clause was interpreted as embracing slaves, and that this asserted license was at times mentioned as a reason for the adoption of the Constitution. Even Mr. Madison, who had declared in the National Convention that it was “wrong to admit in the Constitution the idea that there could be property in men,” argued afterwards, in the Virginia Convention, that “this clause was expressly inserted to enable owners of slaves to reclaim them,”[343]—all of which was doubtless true, but the question still occurs as to the constitutional efficacy of the clause. Mr. Iredell, who was not a member of the National Convention, undertook, in the North Carolina Convention, to explain what it had done. Announcing that the clause was intended to include slaves, he added: “The Northern delegates, owing to their particular scruples on the subject of Slavery, did not choose the word slave to be mentioned,”[344]—so that, on the very statement of this expositor, the question naturally arose whether slaves were really included. In the South Carolina Convention, General Pinckney, who in the National Convention first started the idea of “some provision in favor of property in slaves,” boasted that this had been obtained; but he added, in suggestive words, “We have made the best terms for the security of this species of property it was in our power to make. We would have made better, if we could.”[345] True enough. The Slave-Masters got all they could: if possible, they would have got more. But the question still recurs, whether in this equivocal provision they got anything. In the National Convention they adopted a clause which was only another illustration of “Mr. Facing-both-ways.” At home, in their local conventions, they courageously insisted that it faced only one way. Without dwelling on old sayings about “a villain outwitting himself,” and wit failing when “upon an ill employ,” clearly the wit of the Slave-Masters was “upon an ill employ” when it sought to foist Slavery into the text of the Constitution; and it is easy to see that all who engaged in the work were like “a villain outwitting himself.” Whatever they may have thought or boasted, the thing was not done.

From the origin of the fugitive clause, and the circumstances attending its adoption, it is apparent that it has been the occasion of infinite exaggeration and misrepresentation. Like a Pagan idol, it has been worshipped and covered with gifts; but the prevailing superstition which sustained the imposture has at last disappeared, and we see nothing but a vulgar image of painted wood.

LEGISLATION FOR RENDITION OF FUGITIVE SLAVES.

From the clause in the Constitution, the Committee pass to a consideration of the legislation founded upon it. Of course, if the clause is misunderstood, no legislation can derive any validity from it. Nothing can come out of nothing; and since there is nothing in the Constitution positively requiring rendition of fugitive slaves by the National Government, there can be no authority for any legislation by Congress on the subject. Therefore the argument against the existing statutes is complete. But, since it is proposed to reverse an early policy of the Government, the Committee are unwilling to stop here. These statutes must be considered in their history and character.

As early as 1793, while Congress was sitting in Philadelphia, provisions for the surrender of fugitive slaves were fastened upon a bill for the surrender of fugitives from justice, and the whole was adopted, apparently with little consideration. Thus, accidentally, Congress assumed the odious power to organize slave-hunting. But the Act was scarcely passed, before the conscience of people, not only at the North, but even in Maryland, began to be aroused. Granville Sharp, who in England so bravely maintained the national cause as well as the cause of the slave, addressed a letter to the “Maryland Society for Promoting the Abolition of Slavery and the Relief of Free Negroes and others unlawfully held in Bondage,” where he set forth elaborately those binding rules of interpretation, which, according to English law, require a court to incline always in favor of Liberty. This letter purports to have been published, as a pamphlet, by order of the Society, and to have been printed at “Baltimore, in Calvert Street, near the Court-House, by D. Graham, L. Yundt, and W. Patton,” in 1793. In a brief preface, the Maryland Society thus reveals the trials attending the new Fugitive Slave Act:—

“Still Slavery exists, and, in the case of slaves escaping from their masters, the friends of Universal Liberty are often embarrassed in their conduct by a conflict between their principles and the obligations imposed by unwise and perhaps unconstitutional laws.”

Such is a contemporary record of sensibilities in a Slave State; and let it be mentioned to the honor of Maryland. But it is reasonable to suppose that sensibilities in States further north were touched still more. Mr. Quincy, whose living memory embraces this early period, reports, that, when an enforcement of this Act was attempted in Boston, the crowd thronging the room of the magistrate quietly and spontaneously opened a lane for the fugitive, who was thus enabled to save himself from Slavery, and also save the country from the dishonor of such a sacrifice. Almost at the same time, in patriotic Vermont, a judge of the Supreme Court of the State, on application for the surrender of an alleged slave, accompanied by documentary evidence, refused to comply, unless the master could show a bill of sale from the Almighty. Such was the popular feeling which this earlier legislation encountered.

There is authentic evidence that this popular feeling was recognized by President Washington as a proper guide, where he was personally interested. A slave of Mrs. Washington had escaped to New Hampshire. The President, in an autograph letter, which has been produced in the Senate,[346] addressed to Mr. Whipple, the collector at Portsmouth, and dated at Philadelphia, November 28, 1796, after expressing the desire of “her mistress” for the return of the slave, lays down the following rule of conduct:—

“I do not mean, however, by this request, that such violent measures should be used as would excite a mob or riot, which might be the case, if she has adherents, or even uneasy sensations in the minds of well-disposed citizens. Rather than either of these should happen, I would forego her services altogether,—and the example, also, which is of infinite more importance.”

The fugitive never was returned, but survived to a good old age, down to a recent period,—a living witness to that public opinion which made even the mildest of Fugitive Slave Acts a dead letter.

At last, in 1850, after the subject of Slavery had been agitated in Congress without interruption for nearly twenty years, a series of propositions was adopted, and solemnly declared to be compromises, by which all the questions concerning Slavery were permanently settled, so as never again to vex the country,—as if any question could be permanently settled except on principles of justice. But the “gruel” was made, and among its ingredients “for a charm of powerful trouble” was a new Fugitive Slave Act, first reported from the Committee on the Judiciary by Mr. Butler, of South Carolina, but afterwards amended by a substitute from Mr. Mason, of Virginia, so as to become substantially his measure. It is needless to mention its details. Suffice it to say, that in these, as in general conception, it was harsh, cruel, and vindictive. Few statutes in history have been so utterly inhuman, not excepting even those British statutes for the oppression of the Irish Catholics, which are pictured by Edmund Burke in words strictly applicable to the monstrosity of our country:—

“That truly barbarous system, where almost all the parts were outrages on the rights of humanity and the laws of Nature,”—“a machine of wise and elaborate contrivance, and as well fitted for the oppression, impoverishment, and degradation of a people, and the debasement in them of human nature itself, as ever proceeded from the perverted ingenuity of man.”[347]

Such, unquestionably, was the Fugitive Slave Act of 1850, which is still allowed to remain on the statute-book, a blot upon our country and age.

Where a measure is so plainly repugnant to reason and authority, and on its face has so little foundation in the Constitution, any elaborate argument seems superfluous, especially at this moment, when Slavery everywhere is yielding to Freedom. The general conscience condemns the inhuman statute, and this is enough.

But it is important to show how the country has been deceived. Therefore, briefly, the Committee call attention to the constitutional objections.

UNCONSTITUTIONAL USURPATION OF POWER BY CONGRESS.

Forgetting, then, for the moment, the Preamble of the Constitution, which speaks always for Justice and Liberty,—forgetting, also, the venerable maxim of the law, that “we must incline always in favor of Freedom,” and likewise that other maxim, that “he is impious and cruel who does not favor Freedom,”—refusing, according to the requirement of law, “to catch at anything in favor of Liberty,” and, in spite of all received rules of interpretation, assuming that the words of the fugitive clause adequately define fugitive slaves,—the question then arises, if this clause, thus defiantly interpreted, confers any power upon Congress.

Clearly not.

Search the Constitution, and you will find no grant, general or special, conferring upon Congress power to legislate with regard to fugitives from service or labor. In the general catalogue of powers this is not mentioned; nor does it appear in any special grant. There is nothing in the clause itself, there is nothing in any other clause, applicable to this pretended power. The whole subject is left to stand on a clause which, whatever its meaning otherwise, plainly on its face is only a compact, and not a grant of power. And in this respect it differs on its face from other provisions of the Constitution. For instance, Congress is expressly empowered “to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies, throughout the United States.” Without this grant, these two important subjects would have fallen within the control of the States, the nation having no power to establish a uniform rule thereupon. Now, instead of the existing compact on fugitives from service or labor, it would have been easy, had any such desire prevailed, to add this case to the provision on naturalization and bankruptcy, and empowered Congress to establish a uniform rule for the surrender of fugitives from service or labor throughout the United States. Then would Congress have had unquestionable jurisdiction. But nobody in the Convention, not one of the hardiest partisans of Slavery, presumed to make this proposition. Had it been made, it is easy to see that it must have been most unceremoniously dismissed.

The genius of the Common Law, to which our ancestors were devoted, cried out against any such concession. If we refer to its great master, Lord Coke, from whose teachings in that day there was no appeal, we find its living voice. In the Third Institute he thus expresses himself: “It is holden, and so it hath been resolved, that divided kingdoms, under several kings in league one with another, are sanctuaries for servants or subjects flying for safety from one kingdom to another, and, upon demand made by them, are not, by the laws and liberties of kingdoms, to be delivered.”[348] Unquestionably, if such “sanctuaries” may be overturned, it can be only in a manner consistent with “laws and liberties” of the States where the fugitive is found, and not through the exercise of a domineering prerogative by Congress.

Whatever the real meaning of the clause in other respects, plainly it is a compact, with a prohibition on the States, conferring no power on the nation. In natural signification it is a compact. According to examples of other countries and principles of jurisprudence, it is a compact. All arrangements for surrender of fugitives are customarily compacts. Except under express obligations of treaty, no nation is bound to surrender fugitives. Especially has this been the case with fugitives for Freedom. Bodin asserted the freedom of all foreign slaves just so soon as they crossed into France.[349] In mediæval Europe cities set up the same immunity, even against claimants under the same national government. In 1531, while the Netherlands and Spain were united under Charles the Fifth, the supreme council of Mechlin rejected an application from Spain for the surrender of a fugitive slave. By express compact alone could this be secured. But the provision of the Constitution was borrowed from the Ordinance of the Northwestern Territory, which is expressly declared to be a “compact,”[350] and this Ordinance, finally drawn by Nathan Dane, of Massachusetts, was again borrowed, in some of its distinctive features, from the early institutions of Massachusetts, among which, as far back as 1643, was a compact of like nature with other New England States. Thus this provision is a compact in language, a compact in nature, and a compact in its whole history; as we have already seen, it is a compact according to the intentions of our fathers and the genius of our institutions.

There are two instances in history of compacts which illustrate the present words. The first is found in a treaty of peace between Leo the Sixth, Greek Emperor of Constantinople, and Oleg, Regent of Russia, in the year of the Christian era 906, as follows:—

“If a Russian slave take flight, or even if he is carried away under pretence of having been bought, his master can pursue him and take him wherever he shall find him, and any man who shall oppose him in his search shall be deemed guilty.”[351]

This compact, made in the unequivocal language of a barbarous age, has long since ceased to exist; and now, in our own day, Russia disdains to own a slave.

The other instance is the compact between the New England colonies in 1643, being one of the “Articles of Confederation between the Plantations under the Government of the Massachusetts, the Plantations under the Government of New Plymouth, the Plantations under the Government of Connecticut and the Government of New Haven, with the Plantations in combination therewith.” Here it is:—

“It is also agreed, That, if any servant run away from his master into any other of these confederated jurisdictions, that in such case, upon the certificate of one magistrate in the jurisdiction out of which the said servant fled, or upon other due proof, the said servant shall be delivered either to his master or any other that pursues and brings such certificate or proof.”[352]

Here, by words of agreement, less frank and unequivocal than those of the earlier time, fugitives are restored. But this compact, like its Russian prototype, long since ceased to exist.

Unquestionably the fugitive clause of the Constitution, whether applicable to fugitive slaves or not, was never intended to confer power upon Congress, but was simply a compact, to receive such interpretation as the States where it was enforced might choose to adopt.

AUTHORITIES AGAINST THE POWER OF CONGRESS.

The Committee do not leave this conclusion to rest merely on unanswerable reason. Authorities add to the testimony.

Here is the judgment of Chancellor Walworth, of New York, pronounced in 1835, before this subject had become the occasion of political strife. The testimony of the learned Chancellor is the more important, when it is considered that he has always acted politically with the Democracy, which has been the support of Slavery.

“I have looked in vain among the powers delegated to Congress by the Constitution for any general authority to that body to legislate on this subject. It certainly is not contained in any express grant of power, and it does not appear to be embraced in the general grant of incidental powers contained in the last clause of the Constitution relative to the powers of Congress. The law of the United States respecting fugitives from justice and fugitive slaves is not a law to carry into effect any of the powers expressly granted to Congress, ‘or any other power vested by the Constitution in the Government of the United States, or any department or officer thereof.’”[353]

Here, also, is the judgment of Chief Justice Hornblower, of New Jersey, pronounced in 1836. Having shown that the clause in question confers no power on Congress, he proceeds as follows.

“In short, if the power of legislation upon this subject is not given to Congress in the second section of the fourth article of the Constitution, it cannot, I think, be found in that instrument. The last clause of the eighth section of the first article gives to Congress a right to make all laws which shall be necessary and proper for carrying into execution all the powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. But the provisions of the second section of the fourth article of the Constitution cover no grant to, confide no trust, and vest no powers in, the Government of the United States. The language of the whole of that section is to establish certain principles and rules of action by which the contracting parties are to be governed in certain specified cases. The stipulations respecting the rights of citizenship, and the delivery of persons fleeing from justice or escaping from bondage, are not grants of power to the General Government, to be executed by it in derogation of State authority, but they are in the nature of treaty stipulations, resting for their fulfilment upon the enlightened patriotism and good faith of the several States. The argument in favor of Congressional legislation, founded on the suggestion that some of the States might refuse a compliance with these constitutional provisions, or neglect to pass any laws to carry them into effect, is entitled to no weight.”[354]

Afterwards, in a published letter of 1852, the Chief Justice says:—

“Be assured, my dear Sir, my judgment, whatever it may be worth, has been for years, and now is, in perfect accordance with yours in relation to the unconstitutionality of the Fugitive Slave Laws of 1793 and 1850.”[355]

Other judicial opinions might be adduced; but, as they have been pronounced since controversy on this question, they would be less regarded.

There are opinions, pronounced in the Senate, which, from the characters of their authors, are entitled to peculiar consideration.

It will be remembered that Mr. Webster gave his support to the Fugitive Slave Act of 1850; but, whatever may have been his vote, so far as his personal authority could go, he condemned the Act as unconstitutional. Here is his opinion, in the famous speech of the 7th March, 1850.

“I have always thought that the Constitution addressed itself to the Legislatures of the States, or to the States themselves. It says that those persons escaping to other States ‘shall be delivered up,’ and I confess I have always been of the opinion that it was an injunction upon the States themselves. When it is said that a person escaping into another State, and coming, therefore, within the jurisdiction of that State, shall be delivered up, it seems to me the import of the clause is, that the State itself, in obedience to the Constitution, shall cause him to be delivered up. That is my judgment. I have always entertained that opinion, and I entertain it now.”[356]

“I have always entertained that opinion, and I entertain it now.” Such are the emphatic words by which Mr. Webster declares his judgment of the unconstitutionality of this Act.

He was not alone. Mr. Mason, the actual author of the Act of Congress, exposed its unconstitutionality in the very speech by which he introduced it.

“In my reading of these clauses of the Constitution for extradition of fugitives of both classes, I advance the confident opinion that it devolves upon the States the duty of providing by law both for their capture and delivery.… I say, then, Sir, that the true intent of the Constitution was to devolve it upon the States, as a federal duty, to enforce, by their own laws, within their respective limits, both these clauses of extradition.”[357]

And Mr. Butler, of South Carolina, at a later day, said:—

“Under the Constitution, each State of itself ought to provide for the rendition of all fugitives from labor to their masters. This was certainly the design of the Constitution.”[358]

Such are some of the authorities, judicial and political, by which Congressional power over this subject is denied. And yet, in the face of all authority, and in defiance of reason, Congress assumed this power. It was done at the demand of Slavery, and for the protection of Slavery. Of course, such an assumption of undelegated power was a usurpation at the time, and is a usurpation still,—doubly hateful, when it is considered that it is a usurpation in the name of Slavery. It is hard to think that Congress was driven to unconstitutional assumption in such a cause, and that, contrary to sovereign rules of interpretation, it leaned to Slavery rather than to Freedom. But the time has come at last when it may recover the attitude belonging to it under the Constitution.

In advising the repeal of the Fugitive Slave Act, it is enough to show that it is founded on usurpation by Congress of power not granted by the Constitution. But, even admitting the power, a slight examination will show that it has been executed in defiance of the Constitution.

The constitutional objections to the Fugitive Slave Act are abundant. It is not too much to say, that in every section and at every point it is repugnant to admitted principles of Constitutional Law.

UNCONSTITUTIONAL DENIAL OF TRIAL BY JURY.

Foremost among these objections it is proper to put the denial of trial by jury to the fugitive whose liberty is in question. It is well known that Judge Story, who pronounced the opinion of the Supreme Court affirming the constitutionality of the early Fugitive Slave Act, declared that the necessity of a trial by jury had not been argued before the Court, and that in his opinion this was still “an open question.”[359] It has never been argued since; but it is difficult to say that it is still “an open question.” The battles of Freedom are never lost, and the longer this right is denied the more its justice has become apparent, until at last it shines resplendent beyond all contradiction. Even if there were doubt of the obligation of Congress, there can be no doubt of the power. Nobody denies that Congress, if it legislates on this matter, may allow trial by jury. But here again, if it may, so overwhelming is the claim of justice, it must.

The text of the Constitution leaves the case beyond question. And here, on the threshold, two necessary incidents of the delivery are observed: first, it must be made in the State where the fugitive is found; and, secondly, it restores to the claimant complete control over the person, so that the victim may be conveyed to any part of the country where it is possible to hold a slave, or he may be sold on the way. The proceedings, therefore, cannot be regarded, in any just sense, as preliminary or auxiliary to some future formal trial, as in the case of a fugitive from justice, but as complete in themselves, final and conclusive.

It is because of the contempt with which, under the teachings of Slavery, to the shame of our country, men have thus far regarded the rights of colored persons, that courts have been willing for a moment to recognize the constitutional right to hurl a human being into bondage without trial by jury. Had the victims been white, it is easy to see that the rule would have been different. But it is obvious, that, under the Constitution, the rule must be the same for all, whether black or white.

On the one side is a question of property; on the other side is the vital question of Human Freedom in its most transcendent form,—not merely Freedom for a day or a year, but for life, and the freedom of generations that shall succeed so long as Slavery endures. Whether viewed as a question of property or a question of Human Freedom, the requirement of the Constitution is equally explicit, and it becomes more explicit as we examine its history. It is well known, that, at the close of the National Convention, Elbridge Gerry refused to sign the Constitution, because, among other things, it sanctioned the establishment of “a tribunal without juries,—a Star-Chamber as to civil cases.”[360] Many united in this opposition, and on the recommendation of the First Congress an additional safeguard was added in the following words: “In suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Words cannot be more positive.

Three conditions, according to this Amendment, are necessary. First, there must be “a suit.” But the Supreme Court, in the case of Cohens v. Virginia, have defined a suit to be “the prosecution, or pursuit, of some claim, demand, or request,”[361]—thus affirming that the “claim” for a fugitive is “a suit.” Secondly, there must be a suit “at Common Law.” But here again the Supreme Court, in the case of Parsons v. Bedford, while considering this very clause, has declared that “in a just sense the Amendment may well be construed to embrace all suits which are not of Equity and Admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights”;[362] and clearly, since the claim for a fugitive is not a suit in Equity or Admiralty, but a suit to settle what are culled “legal rights,” it must, of course, be “a suit at Common Law.” Thirdly, the value in controversy must “exceed twenty dollars.” But here again the Supreme Court, in the case of Lee v. Lee, on a question as to jurisdiction, founded on “the value in controversy,” has declared that the freedom of the petitioners, which was the matter in dispute, was “not susceptible of a pecuniary valuation,”[363]—showing, that, since Liberty is above price, the claim to a fugitive always necessarily presumes that “the value in controversy exceeds twenty dollars.”

Thus, by a series of separate decisions of the Supreme Court on the three points involved in the interpretation of this clause, it is clear beyond question that the claim to a fugitive is, first, “a suit,”—secondly, “at Common Law,”—thirdly, “where the value in controversy exceeds twenty dollars”: so that trial by jury is expressly secured.

Even if the Supreme Court had been silent on this question, the argument from the old books of the Common Law would be unanswerable. We are told that there is nothing new under the sun. Certainly, long before our Constitution, the claim for a fugitive slave was known to the Common Law. In early history, and down even to a late period, the slave in England was generally called villein, though in the original Latin judicial forms nativus, implying slavery by birth. Of course, then as now, he sometimes ventured to escape from his master; but the Common Law supplied the appropriate remedy. The claim was prosecuted by “a suit at Common Law,” to which, as to every suit at Common Law, the trial by jury was necessarily attached. Blackstone, in his Commentaries, in words which must have been known to all the lawyers of the Convention, said of villeins: “They could not leave their lord without his permission, but, if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chattels.”[364] But this word “action” of itself implies “a suit at Common Law,” with trial by jury.

The forms of proceeding in such cases are carefully preserved in those books which constitute the authoritative precedents of the Common Law. There are writs, counts, pleadings, and judgments, all ending in trial by jury. They will be found in Fitzherbert’s “Natura Brevium.”[365] The Year Books and Books of Entries are full of them. Clearly and indisputably, in England, where the Common Law has its origin, a claim for a fugitive slave was “a suit at Common Law,” recognized as such among its old and settled proceedings, as much as a writ of replevin for a horse or a writ of right for land. It follows, then, that the requirement of the Constitution, read in the illumination of the Common Law, naturally and necessarily embraces proceedings for the recovery of fugitive slaves, so far as any such are instituted or allowed under the Constitution.

And this irresistible conclusion had the support of a Senator from South Carolina in an earlier period of our history, before passion had obscured reason and conspiracy against the Union had blotted out all loyalty to truth. In reply to a proposition, in 1818, to refer the claim of the master to a judge without a jury, Mr. Smith, speaking solely in the interests of property, thus expressed himself:—

“This would give a judge the sole power of deciding the right of property the master claims in his slave, instead of trying that right by a jury, as prescribed by the Constitution. He would be judge of matters of law and matters of fact,—clothed with all the powers of a jury, as well as the powers of a court. Such a principle is unknown in your system of jurisprudence. Your Constitution has forbid it. It preserves the right of trial by jury in all cases where the value in controversy exceeds twenty dollars.”[366]

Thus, in those days, a partisan of Slavery, while asserting its divine origin, and vindicating the rendition of fugitive slaves, recognized the claim of the master as “a suit at Common Law,” to be tried by a jury; and this he insisted was prescribed by the Constitution. But if this Senator could claim trial by jury for the protection of his pretended property, with much greater reason might the fugitive claim trial by jury for the protection of his liberty. Surely, now, when Liberty is regaining her lost foothold, this protection will not be denied.

OBJECTIONS TO TRIAL BY JURY.

To this array of reason and authority there are but two attempts at reply, so far as the Committee is informed.

(1.) The first asserts that the rendition of the slave under the Act of Congress is a “preliminary” proceeding, in the nature of extradition, which does not establish any right between the parties, but simply hands the slave over to the local jurisdiction from which he escaped, and therefore trial by jury is unnecessary. But this pretension is founded on a plain misapprehension. It forgets, in the first place, that by ancient authority a “claim” for a fugitive slave is unquestionably a “suit at Common Law,” to be determined by a jury before the judgment of rendition. And it forgets, in the second place, that the proceedings are in no respect “preliminary”; that they do not contemplate any other trial between the parties, but that they fix absolutely the relations of the parties, making one of them master and the other slave; that the certificate of rendition is absolute and unimpeachable by any human tribunal, so that the claimant, from the moment of its issue, may assert unqualified ownership over the fugitive; that, under this certificate, he may proceed at once to demand service and labor, and enforce his demand by the lash; and that, instead of returning the victim to that local jurisdiction from which he is alleged to have escaped, the claimant may hurry him, chained and manacled, to some distant plantation, where the only judge will be an overseer, and the only jury the creatures who aid in enforcing a terrible power. And the argument forgets, also, that this cruel judgment may be inflicted upon a freeman, who, perhaps, has never left his Northern home, but whose fate will be fixed beyond appeal by the mere certificate of a commissioner. Surely this simple statement is enough.

The very word “preliminary” suggests the inquiry, To what? Preliminary is not an adjective that supports itself. It requires an adjunct, or an abutment on which to rest. It is the beginning or introduction to some further proceeding. It is something incomplete or unfinished. If it be judicial, it contemplates necessarily some further judicial proceeding. The judge who pronounces a preliminary judgment must necessarily have in mind the judgment to follow, and must recognize his relation to it. But if there is no judgment to follow, if there is no contemplation of any further judicial proceeding, if the actual proceeding is complete and finished, if it is not the beginning or introduction to any further proceeding, if there is nothing on which the adjective “preliminary” can rest, it is absurd to call the proceeding by this name. Such proceeding is essentially final, and this is the unquestionable character of that under the Fugitive Slave Act. To call it “preliminary,” and on this ground set up apology for denial of trial by jury, is only another illustration of devices employed by Slavery to baffle the demands of Freedom.

But it is still said that there may be another trial in the State whither the slave is conveyed. On this assumption it has been well remarked, that, if, contrary to general principles of law attaching to the decision of a competent tribunal a conclusive force as to the same right between the same parties, there could be any trial in the Slave State, then it is another trial, and in no respect a continuation and completion of the proceedings before the commissioner. The only trial possible would be an original suit by the alleged slave against his actual master, whosoever he might be; for the claimant may have already sold him to another. But there can be no legal connection between the two proceedings. Each is original, and must be decided on its own merits. In the one case, the actual claimant, whosoever he may be, is plaintiff, and the slave is defendant; and in the other case the slave is plaintiff, and the actual master, whosoever he may be, is defendant. And the first proceeding is preliminary to the other only as an illegal imprisonment is preliminary to a suit for damages. The whole pretension is lost in its absurdity.

(2.) The second attempt at reply to the argument for trial by jury may be given in the words of the author of the Fugitive Slave Act himself. In the debate which occurred on its passage, Mr. Mason thus expressed himself:—

“If you pass a law which shall require a trial by jury, not one man in twenty whose slave escapes will incur the risks or expense of going after the fugitive. It proposes a trial according to all the forms of the court. A trial by jury necessarily carries with it a trial of the whole right, and a trial of the right to service will be gone into according to all the forms of the court in determining upon any other fact.… This involves the detention of the fugitive in the mean time,—a detention that is purely informal; and whether the jury should or should not render a righteous verdict in the end is a matter I will not inquire into, for it is perfectly immaterial, as the delay itself would effectually defeat the right of reclamation.”[367]

Thus, in a question of Human Freedom, the delay incident to trial by jury was unblushingly asserted as a sufficient reason for denial of the right. On a pretension so repulsive, it is enough to say that its feebleness is exceeded only by its audacity.

The Committee, therefore, put aside the attempts at reply, and confidently rest in the conclusion that the denial of trial by jury to a person claimed as slave is an unquestionable violation of the Constitution.

UNCONSTITUTIONAL DELEGATION OF JUDICIAL POWER TO COMMISSIONERS WHO ARE NOT JUDGES.

There is still another objection from unconstitutionality, which may be treated more briefly; but it is not less decisive than the two objections already considered. It is founded on the character of the magistrate to whom is committed the adjudication of the great question of Human Freedom, than which none greater is known to the law.

If it were a question merely of property above twenty dollars,—if it were a question of crime, involving imprisonment under the laws of the United States,—especially if it were a question involving life,—the trial must be before a judge duly appointed by the President by and with the advice and consent of the Senate, holding office during good behavior, receiving for his services a fixed compensation, and bound by solemn oath of office. But this great question of Human Freedom is committed to the unaided judgment of a petty magistrate, called a commissioner, appointed by the Court instead of the President, holding his office during the will of the Court instead of during good behavior, paid by fees according to each individual case, instead of receiving for his services a fixed compensation, and not bound by any oath of office.

A claim for the rendition of a fugitive from service or labor, constituting as it does “a suit at Common Law,” and also “a case arising under the Constitution,” must be determined by a judicial tribunal. But a commissioner is not a judicial tribunal, nor is he in any sense a judge; so that he is not entitled, under the Constitution, to exercise this extraordinary jurisdiction.

As “a suit at Common Law,” the claim must be tried by the tribunal which has jurisdiction of such suits. But a commissioner can have no such jurisdiction.

As “a case arising under the Constitution,” it falls under the judicial power of the United States. But a commissioner is no part of this power.

Two provisions of the Constitution place this conclusion beyond question. First, by article three, section one, it is declared that “the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.” Secondly, by article three, section two, it is declared that “the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” Here it appears, first, who are the judges constituting the judicial power of the United States, and, secondly, what is the extent of this power. But a commissioner clearly is not a judge, or any part of the judicial power. Therefore, by inevitable conclusion, he cannot have jurisdiction of any “case arising under the Constitution.” But the Supreme Court has expressly decided that the proceeding by a claimant for the delivery of an alleged slave “constitutes in the strictest sense a controversy between the parties, and a case arising under the Constitution of the United States, within the express delegation of judicial power given by that instrument.”[368]

And yet a commissioner, dressed in the smallest and briefest authority, is put forward to determine this great case under the Constitution, and his judgment is declared final, and even without appeal. The Fugitive Slave Act proclaims expressly that he “shall have concurrent jurisdiction with the judges of the Circuit and District Courts of the United States”; that he shall “hear and determine the case of the claimant in a summary manner”; and that his certificate “shall be conclusive of the right of the person or persons in whose favor granted to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.”[369] Such are the plenary powers conferred upon the commissioner, together with an eminent jurisdiction concurrent with judges of the Circuit and District Courts. This Act, as originally introduced by Mr. Butler, before the substitute of Mr. Mason, intrusted this concurrent jurisdiction to the whole army of postmasters; but a trumpery commissioner, appointed by a court, is as little entitled to exercise it as a postmaster. It is not doubted, that, under existing statutes, a commissioner may be appointed to take depositions and acknowledgments of bail, and also to arrest, examine, and detain offenders for trial. Thus much a court may authorize; but a court cannot delegate to a commissioner the power of trying a cause, whether “a suit at Common Law,” or “a case arising under the Constitution”; nor can Congress authorize a court to delegate this power. The whole pretension is a discredit to the jurisprudence of the country.

Such are three principal objections to the constitutionality of this Act. One alone is enough. The three together are more than enough.

OTHER OBJECTIONS TO THE FUGITIVE SLAVE ACT.

But there are other objections, to which the Committee merely allude.

The offensive Act, defying the whole Law of Evidence, authorizes a judgment which despoils a man of his liberty on ex parte testimony, by affidavit, without the sanction of cross-examination.

It practically denies the writ of Habeas Corpus, ever known as the palladium of the citizen.

Contrary to the purposes declared by the framers of the Constitution, it sends the fugitive back “at the public expense.”[370]

Adding meanness to violation of the Constitution, it bribes the commissioner by a double fee to pronounce against Freedom. If he dooms a man to Slavery, the reward is ten dollars; but saving him to Freedom, his dole is five dollars.

As it is for the public weal that there should be an end of suits, so, by the consent of civilized nations, these must be instituted within fixed limitations of time; but the Fugitive Act, exalting Slavery above even this practical principle of universal justice, ordains proceedings against Freedom without reference to lapse of time.

Careless of the feelings and conscientious convictions of good men who cannot help the work of thrusting a fellow-being back into bondage, this Act declares that “all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law”;[371] and this injunction is addressed to all alike, not excepting those who religiously believe that the Divine mandate is as binding now as when it was first given to the Hebrews of old: “Thou shalt not deliver unto his master the servant which is escaped from his master unto thee: he shall dwell with thee, even among you, in that place which he shall choose, in one of thy gates where it liketh him best: thou shalt not oppress him.”[372] The thunder of Sinai is silent, and the ancient judgments have ceased; but an Act of Congress, which, besides its direct violation of this early law, offends every sentiment of Christianity, must expect the judgments of men, even if it escapes those of Heaven. Perhaps the sorrows and funerals of this war are so many warnings to do justice.

But this Act is to be seen not merely in its open defiance of the Constitution, and of all legislative decencies; it must be considered, also, in two other aspects: first, in its consequences; and, secondly, in the character of its authors. The time has come, at last, when each of these may be exposed.

CONSEQUENCES OF THE FUGITIVE SLAVE ACT.

And, first, as to its consequences. In the history of the African race these can never be forgotten. Since the first authorization of the slave-trade, nothing so terrible had fallen upon this unhappy people, whether we contemplate its cruelty to individuals or the wide-spread proscription which it launched against all whose skins were not white.

It is sad to know of suffering anywhere, even by a single lowly person. But our feelings are enhanced, when individual sorrows are multiplied, and the blow descends upon a whole race. History, too, takes up the grief. The Jews expelled from Spain by merciless decree, the Huguenots driven from France by the revocation of the Edict of Nantes, our own Puritan fathers compelled to exile for religious Freedom,—all these receive a gushing sympathy, and we detest the tyrants. These were persecutions for religion, in days of religious bigotry and darkness. But an American Congress, in this age of Christian light, not in the fanaticism of religion, but in the fanaticism of Slavery, did a deed that finds companionship only with these enormities of the past. The Fugitive Slave Act carried distress and terror to every person with African blood in the Free States. All were fluttered, as the arbitrary edict commenced its swoop over the land. The very rumor that a slave-hunter was in town so shook the nerves of a sensitive freeman on whom was the ban of color, that he died. To large numbers the Act was a decree of instant expulsion from the Republic, under penalty of Slavery to them and their posterity forever. Driven by despair, as many as six thousand Christian men and women, meritorious persons,—a larger band than that of the escaping Puritans,—precipitately fled from homes they had established, opportunities of usefulness they had found, and the regard of fellow-citizens, until, at last, in an unwelcome Northern climate, beneath the British flag, with glad voices of Freedom on their lips, though with the yearnings of exile in their hearts, they were happy in swelling the chant, “God save the Queen!”

Such an injustice cannot be restricted in influence. Everywhere it is an extension of Slavery, with all the wrong, violence, and brutality which are the natural outgrowth of Slavery. The Free States became little better than a huge outlying plantation quivering under the lash of the overseer; or rather, they were a diversified hunting-ground for the flying bondmen, resounding always with the “halloo” of the huntsman. There seemed no rest. The chase was hardly over at Boston before it was started at Philadelphia, Syracuse, or Buffalo, and then again raged furiously across the prairies of the West. Not an instance occurred which did not shock the conscience of the country and sting it with anger. Records of the time attest the accuracy of this statement. Perhaps there is no example in history where human passion showed itself in grander forms, or eloquence lent all her gifts more completely to the demands of Liberty, than the speech of an eminent character, now dead and buried in a foreign land,[373] denouncing the capture of Thomas Sims at Boston, and invoking the judgment of God and man upon the agents in this wickedness. In the history of Humanity this great effort cannot be forgotten. But every case pleaded with an eloquence of its own, until, at last, occurred one of those tragedies darkening the heavens and crying out with a voice that will be heard. It was the voice of a mother standing over her murdered child. Margaret Garner escaped from Slavery with three children, but was overtaken at Cincinnati. Unwilling to behold her offspring returned to the shambles of the South, this unhappy person, described in the testimony as “a womanly, amiable, affectionate mother,” determined to save them in the only way within her power. With a butcher-knife, coolly and deliberately, she took the life of one of the children, “almost white, and a little girl of rare beauty,” and attempted, without success, to take the life of the other two. To the preacher who interrogated her she exclaimed: “The child was my own, given me of God to do the best a mother could in its behalf. I have done the best I could; I would have done more and better for the rest; I knew it was better for them to go home to God than back to Slavery.” But she was restrained in her purpose. The Fugitive Slave Act triumphed, and, after the determination of sundry questions of jurisdiction, this devoted historic mother, with the two children remaining to her, and the dead body of the little one just emancipated, under a national escort of armed men, was hurried to the doom of Slavery. Her case did not end with this revolting sacrifice. So long as the human heart is moved by human suffering, the story of this mother will be read with alternate anger and grief, while it is studied as a perpetual witness to the slaveholding tyranny which then ruled the Republic with execrable exactions, destined at last to break out in war,—as the sacrifice of Virginia by her father is a perpetual witness to the decemviral tyranny which ruled Rome.

But Liberty is always priceless. There are other instances, less known, where kindred wrong has been done. Every case is a tragedy, under the forms of law. Worse than poisoned bowl or dagger was the certificate of a commissioner, allowed, without interruption, to continue his dreadful trade. Even since the Rebellion has raged in blood, the pretension of returning slaves to their masters is not abandoned. The piety of Abraham, who offered up Isaac as a sacrifice to Jehovah, is imitated, and the country continues to offer up fugitive bondmen as a sacrifice to Slavery. It is reported on good authority, that among slaves thus sacrificed was one who by communications to the Government had been the means of saving upwards of one hundred thousand dollars. Here in Washington, since the beneficent Act of Emancipation, even in sight of the flag floating from the National Capitol, the Fugitive Slave Act has been made a scourge and a terror to innocent men and women.

If all these pains and sorrows had redounded in any respect to the honor of the country, or had contributed in any way to the strength of the Union, then we might confess, perhaps, that something at least had been gained. But, alas! there has been nothing but unmixed evil. The country has suffered in good name, while foreign nations have pointed with scorn to a republic which could legalize such indecencies. Not a case occurred which was not greedily chronicled in Europe, and circulated there by the enemies of liberal institutions. Even since the Rebellion began in the name of Slavery, the existence of this odious enactment unrepealed on our statute-book has been quoted abroad to show that the supporters of the Union are as little deserving of sympathy as Rebel Slavemongers. By the enforcement of this odious Act the Union has suffered from the beginning; for not a slave is thrust back into bondage without weakening those patriotic sympathies, North and South, which are its best support. The natural irritation of the North, as it beheld all safeguards of Freedom overthrown and Slavery triumphant in its very streets, was answered by savage exultation in the South, which seemed to dance about its victims. Each instance was the occasion of new exasperations on both sides, which were skilfully employed by wicked conspirators “to fire the Southern heart.”

AUTHORS OF THE FUGITIVE SLAVE ACT.

Such are some of the consequences of this ill-fated measure. But the duty of the Committee cannot be performed without glancing at its authors also. By an easy transition we pass from one to the other, for the two are in natural harmony. Each may be read in the light of the other.

And who were the authors of this Fugitive Slave Act? The answer may be general or special.

If general, it may be said that its authors were the representatives of Slavery, constituting that same Oligarchy, or Slave Power, which has madly plunged this country into civil war. Some of them, even at the time of its enactment, were already engaged in treasonable conspiracy against the Union. They thought little of any pretended interests in property; but they were occupied with two controlling ideas: first, how to unite their own people at home; and, secondly, how to insult and subjugate the Free States. The Fugitive Slave Act furnished a convenient agency for this double purpose, and was naturally adopted by men who had lost the power of blushing as well as the power of feeling.

Unquestionable facts show how little real occasion there was for this barbarous statute. It is now established by the report of the census in 1860, that the loss of slaves by escape was trivial. According to this document, “the whole annual loss to the Southern States from this cause bears less proportion to the amount of capital involved than the daily variations which, in ordinary times, occur in the fluctuations of State or Government securities in the city of New York alone.”[374] Such a statement is most suggestive. Official tables furnish confirmatory details. From these it appears that during the year ending June 1, 1860, out of 3,949,557 slaves, only 803 were able to escape, being one to about five thousand, or at the rate of one fiftieth of one per cent. Then again, out of more than one million of slaves in the Border States in 1860, fewer than five hundred escaped. Such are authentic facts. Nor is this all. The slave who succeeded in escaping, even when reënslaved, was never afterwards regarded as good property. All the work he could do would not compensate for his bad example. Jefferson Davis, in the frankness of an address to his constituents at home in Mississippi, on the 11th July, 1851, said openly that he did not want any fugitive slaves sent into his State; that “such stock would be a curse to the land,—for, with the knowledge they had gained, they would ruin the rest of the slaves, and very probably give rise to the most dreadful consequences”; and he concluded by announcing, that “he would not have in his quarters a negro brought from the North on any account whatever.”[375] And yet, in face of such authentic facts, showing how few escaped, and in face of an instinctive repugnance to any commingling with other slaves by those who had once tasted Liberty, this atrocious statute was enacted, and its enforcement was maintained at the point of the bayonet, while Jefferson Davis was Secretary of War.

There have been wars of pretext; but here was an act of legislation, which, whenever enforced, was a Petty War, and its origin was a pretext. It was nothing but a pretext, through which the representatives of Slavery sought to enforce a flagitious power. The pretext was worthy of the legislation, and both pretext and legislation were in harmony with the authors, who drew their motives of conduct from Slavery and nothing else. The same spirit which triumphed in this Fugitive Slave Act, on a pretext, has at last broken forth in rebellion, on a pretext also. Each was under pretext of maintaining Slavery, and each proceeded from the same influence.

Speaking, then, in general terms, the authors of the Fugitive Slave Act were the authors of the Rebellion. The one and the other have the same paternity, as unquestionably they have a family likeness.

If, however, we go still further, and seek the individual authors of this odious measure, the forerunner of the Rebellion, it is easy to point them out.

The bill was reported to the Senate by Mr. Butler, of South Carolina, so that in origin it may be traced directly to the hot-house of nullification, treason, and rebellion. But Mr. Mason, of Virginia, subsequently moved a substitute, which, being adopted, became the existing statute, and this enormity stalked into life under the patronage of a Senator from Virginia. Public report, which is entitled to belief, attributes this substitute to the cunning hand of Mr. Faulkner, also of Virginia; but, on moving it in the Senate, Mr. Mason made it his own, and pressed it with untiring pertinacity, as the “Globe” amply attests, until it became the law of the land, so far as such a measure can in any just sense be “law.”

But whether its authors be found in States or individuals, there is in it the same pernicious virus, which, breaking out first in South Carolina, inoculated Virginia, like the Rebellion itself. A Senator from Virginia took from South Carolina the final responsibility, as an aged madman from Virginia asked and obtained permission to point the first gun at Fort Sumter. Nor are the two events unlike in character. The Fugitive Slave Act was levelled at the Union hardly less than the batteries at Charleston, when they opened upon Fort Sumter.

Such are the authors, general and special, of this wickedness. The Senator from South Carolina is dead; but the representatives of Slavery still live, and so also do the two madmen from Virginia. Thus the representatives of Slavery, though now in open rebellion, continue, through unrepealed statute, to insult the loyal States, to degrade the Republic, and to rule the country which they tried to ruin. And thus two audacious Rebels, one the pretended Minister of the Rebellion at London, and the other an officer in the Rebel forces, still exert among us a malignant power, while, with a long arm not yet amputated, they reach even into the streets of Washington, and fasten the chains of the slave.

CONCLUSION.

To all this there is one simple answer, and Congress must make it.

A clause of the Constitution, contrary to all commanding rules of jurisprudence, has been interpreted to sanction the hunting of slaves; and the same clause, thus interpreted, has been declared, contrary to all testimony of history, to have been an original compromise of the Constitution and a corner-stone of the Union. On this clause, thus misinterpreted and thus misrepresented, an Act of Congress is founded, which, even assuming that the clause is strictly applicable to fugitive slaves, is many times unconstitutional, but especially in three several particulars: (1.) as a usurpation by Congress of powers not granted by the Constitution; (2.) as a denial of trial by jury in a case of personal liberty and a suit at Common Law; and (3.) as a concession of the case of personal liberty to the unaided judgment of a single petty magistrate, without any oath of office, constituting no part of the judicial power,—appointed, not by the President with the consent of the Senate, but by the court,—holding office, not during good behavior, but merely during the will of the court,—and receiving, not a regular salary, but fees according to each individual case. But even if this Act were strictly constitutional in all respects, yet, regarding it in its painful consequences and in its Rebel authors, it is none the less offensive; for from the beginning it was a scourge to the African race and a grievance to the whole country, a scandal abroad and a dead-weight upon the Union at home, while it was the arch contrivance of men who at the time were rebel at heart and are now in open rebellion, devised as an insult to the Free States and as a badge of subjugation. Such a statute, thus utterly unconstitutional in every respect, and utterly mischievous in all its consequences and influences, while peculiarly obnoxious in its well-known authors, ought to be repealed without delay. If possible to parliamentary usage, it ought to be torn from the volumes of the law, so that there should be no record of such an abuse and such a shame.

Unhappily, the statute must always remain in the pages of our history. But every day of delay in its repeal is hurtful to the national cause and to the national name. Would you put down the Rebellion? Would you uphold our fame abroad? Would you save the Constitution from outrage? Would you extinguish Slavery? Above all, would you follow the Constitution and establish justice? Then repeal the statute at once.