country were with them. At the North these were broad and general. At
the South they found fervid utterance from slaveholders. By early
and precocious efforts for "total emancipation," the author of
the Declaration of Independence placed himself foremost among the
Abolitionists of the land. In language now familiar to all, and
which can never die, he perpetually denounced Slavery. He exposed its
pernicious influence upon master as well as slave, declared that the
love of justice and the love of country pleaded equally for the slave,
and that "the abolition of domestic slavery was the greatest object of
desire." He believed that "the sacred side was gaining daily recruits,"
and confidently looked to the young for the accomplishment of this
good work. In fitful sympathy with Jefferson was another honored son of
Virginia, the Orator of Liberty, Patrick Henry, who, while confessing
that he was a master of slaves, said: "I will not, I cannot justify it.
However culpable my conduct, I will so far pay my devoir to virtue as to
own the excellence and rectitude of her precepts, and lament my want
of conformity to them." At this very period, in the Legislature of
Maryland, on a bill for the relief of oppressed slaves, a young man,
afterwards by consummate learning and forensic powers acknowledged head
of the American bar, William Pinkney, in a speech of earnest,
truthful eloquence,--better for his memory than even his professional
fame,--branded Slavery as "iniquitous and most dishonorable," "founded
in a disgraceful traffic," "its continuance as shameful as its origin,"
and he openly declared, that "by the eternal principles of natural
justice, no master in the State has a right to hold his slave in bondage
for a single hour."
* * * * *
At the risk of repetition, but for the sake of clearness, review now
this argument, and gather it together. Considering that Slavery is of
such an offensive character that it can find sanction only in
"positive law," and that it has no such "positive" sanction in the
Constitution,--that the Constitution, according to its preamble,
was ordained to "establish justice" and "secure the blessings of
liberty,"--that, in the Convention which framed it, and also elsewhere
at the time, it was declared not to sanction slavery,--that, according
to the Declaration of Independence, and the Address of the Continental
Congress, the nation was dedicated to "liberty," and the "rights of
human nature,"--that, according to the principles of the common law, the
Constitution must be interpreted openly, actively, and perpetually for
freedom,--that, according to the decision of the Supreme Court, it acts
upon slaves, _not as property_, but as PERSONS,--that, at the first
organization of the national Government under Washington, Slavery had no
national favor, existed nowhere on the national territory, beneath the
national flag, but was openly condemned by Nation, Church, Colleges, and
Literature of the time,--and, finally, that, according to an amendment
of the Constitution, the National Government can exercise only powers
delegated to it, among which is none to support Slavery,--considering
these things, Sir, it is impossible to avoid the single conclusion,
that Slavery is in no respect a national institution, and that the
Constitution nowhere upholds property in man.
There is one other special provision of the Constitution, which I have
reserved to this stage, not so much from its superior importance, but
because it fitly stands by itself. This alone, if practically applied,
would carry Freedom to all within its influence. It is an amendment
proposed by the First Congress, as follows:
"No _person_ shall be deprived of life, _liberty_, or property,
_without due process of law_."
Under this great aegis the liberty of every person within the national
jurisdiction is unequivocally placed. I say every person. Of this there
can be no question. The word "person" in the Constitution embraces every
human being within its sphere, whether Caucasian, Indian, or African,
from the president to the slave. Show me a person within the national
jurisdiction, and I confidently claim for him this protection, no matter
what his condition or race or color. The natural meaning of the clause
is clear, but a single fact of its history places it in the broad light
of noon. As originally recommended by Virginia, North Carolina, and
Rhode Island, it was restricted to the freeman. Its language was, "No
freeman ought to be deprived of his life, liberty, or property, but by
the law of the land." In rejecting this limitation, the authors of the
amendment revealed their purpose, that no person, under the National
Government, of whatever character, should be deprived of liberty without
due process of law,--that is, without due presentment, indictment, or
other judicial proceeding. But this amendment is nothing less than an
express guaranty of Personal Liberty, and an express prohibition of its
invasion anywhere, at least within the national jurisdiction.
Sir, apply these principles, and Slavery will again be as when
Washington took his first oath as President. The Union Flag of the
Republic will become once more the flag of Freedom, and at all points
within the national jurisdiction will refuse to cover a slave. Beneath
its beneficent folds, wherever it is carried, on land or sea, slavery
will disappear, like darkness under the arrows of the ascending
sun,--like the Spirit of Evil before the Angel of the Lord.
In all national territories Slavery will be impossible.
On the high seas, under the national flag, Slavery will be impossible.
In the District of Columbia Slavery will instantly cease.
Inspired by these principles, Congress can give no sanction to Slavery
by the admission of new slave States.
Nowhere under the Constitution can the Nation, by legislation or
otherwise, support Slavery, hunt slaves, or hold property in man.
Such, sir, are my sincere convictions. According to the Constitution,
as I understand it, in the light of the past and of its true principles,
there is no other conclusion which is rational or tenable, which
does not defy authoritative rules of interpretation, does not falsify
indisputable facts of history, does not affront the public opinion in
which it had its birth, and does not dishonor the memory of the fathers.
And yet politicians of the hour undertake to place these convictions
under formal ban. The generous sentiments which filled the early
patriots, and impressed upon the government they founded, as upon the
coin they circulated, the image and superscription of LIBERTY, have lost
their power. The slave-masters, few in number, amounting to not more
than three hundred and fifty thousand, according to the recent census,
have succeeded in dictating the policy of the National Government, and
have written SLAVERY on its front. The change, which began in the desire
for wealth, was aggravated by the desire for political predominance.
Through Slavery the cotton crop increased with its enriching gains;
through Slavery States became part of the slave power. And now an
arrogant and unrelenting ostracism is applied, not only to all who
express themselves against Slavery, but to every man unwilling to be its
menial. A novel test for office is introduced, which would have excluded
all the fathers of the Republic,--even Washington, Jefferson, and
Franklin!
Yes, Sir! Startling it may be, but indisputable. Could these revered
demigods of history once again descend upon earth and mingle in our
affairs, not one of them could receive a nomination from the National
Convention of either of the two old political parties! Out of the
convictions of their hearts and the utterances of their lips against
Slavery they would be condemned.
This single fact reveals the extent to which the National Government has
departed from its true course and its great examples. For myself, I know
no better aim under the Constitution than to bring the Government back
to the precise position on this question it occupied on the auspicious
morning of its first organization by Washington,
"Nunc retrorsum
Vela dare, atque iterare cursus
. . . . . . relictos,"
that the sentiments of the Fathers may again prevail with our rulers,
and the National Flag may nowhere shelter Slavery.
To such as count this aspiration unreasonable let me commend a renowned
and life-giving precedent of English history. As early as the days of
Queen Elizabeth, a courtier boasted that the air of England was too pure
for a slave to breathe, and the Common Law was said to forbid Slavery.
And yet, in the face of this vaunt, kindred to that of our fathers, and
so truly honorable, slaves were introduced from the West Indies.
The custom of Slavery gradually prevailed. Its positive legality was
affirmed, in professional opinions, by two eminent lawyers, Talbot and
Yorke, each afterwards Lord Chancellor. It was also affirmed on the
bench by the latter as Lord Hardwicke. England was already a Slave
State. The following advertisement, copied from a London newspaper, _The
Public Advertiser_, of November 22, 1769, shows that the journals there
were disfigured as some of ours, even in the District of Columbia.
"To be sold, a black girl, the property of J. B., eleven years of
age, who is extremely handy, works at her needle tolerably, and
speaks English perfectly well; is of an excellent temper and willing
disposition. Inquire of her owner at the Angel Inn, behind St. Clement's
Church, in the Strand."
At last, in 1772, only three years after this advertisement, the single
question of the legality of Slavery was presented to Lord Mansfield, on
a writ of _habeas corpus_. A poor negro, named Sommersett, brought to
England as a slave, became ill, and, with an inhumanity disgraceful even
to Slavery, was turned adrift upon the world. Through the charity of
an estimable man, the eminent Abolitionist, Granville Sharp, he was
restored to health, when his unfeeling and avaricious master again
claimed him as bondman. The claim was repelled. After elaborate and
protracted discussion in Westminster Hall, marked by rarest learning
and ability, Lord Mansfield, with discreditable reluctance, sullying
his great judicial name, but in trembling obedience to the genius of the
British Constitution, pronounced a decree which made the early boast a
practical verity, and rendered Slavery forever impossible in England.
More than fourteen thousand persons, at that time held as slaves, and
breathing English air,--four times as many as are now found in this
national metropolis,--stepped forth in the happiness and dignity of free
men.
With this guiding example I cannot despair. The time will yet come when
the boast of our fathers will be made a practical verity also, and
Court or Congress, in the spirit of this British judgment, will proudly
declare that nowhere under the Constitution can man hold property in
man. For the Republic such a decree will be the way of peace and safety.
As Slavery is banished from the national jurisdiction, it will cease
to vex our national politics. It may linger in the States as a local
institution; but it will no longer engender national animosities, when
it no longer demands national support.
II.
From this general review of the relations of the National Government to
Slavery, I pass to the consideration of THE TRUE NATURE OF THE PROVISION
FOR THE RENDITION OF FUGITIVES FROM SERVICE, embracing an examination of
this provision in the Constitution, and especially of the recent Act
of Congress in pursuance thereof. As I begin this discussion, let me
bespeak anew your candor. Not in prejudice, but in the light of history
and of reason, we must consider this subject. The way will then be easy
and the conclusion certain.
Much error arises from the exaggerated importance now attached to this
provision, and from assumptions with regard to its origin and primitive
character. It is often asserted that it was suggested by some special
difficulty, which had become practically and extensively felt, anterior
to the Constitution. But this is one of the myths or fables with which
the supporters of Slavery have surrounded their false god. In the
articles of Confederation, while provision is made for the surrender of
fugitive criminals, nothing is said of fugitive slaves or servants;
and there is no evidence in any quarter, until after the National
Convention, of hardship or solicitude on this account. No previous voice
was heard to express desire for any provision on the subject. The story
to the contrary is a modern fiction.
I put aside, as equally fabulous, the common saying, that this provision
was one of the original compromises of the Constitution, and an
essential condition of Union. Though sanctioned by eminent judicial
opinions, it will be found that this statement is hastily made, without
any support in the records of the Convention, the only authentic
evidence of the compromises; nor will it be easy to find any authority
for it in any contemporary document, speech, published letter, or
pamphlet of any kind. It is true that there were compromises at the
formation of the Constitution, which were the subject of anxious debate;
but this was not one of them.
There was a compromise between the small and large States, by which
equality was secured to all the States in the Senate.
There was another compromise finally carried, under threats from the
South, on the motion of a New England member, by which the Slave States
are allowed Representatives according to the whole number of free
persons and "three fifths of all other persons," thus securing political
power on account of their slaves, in consideration that direct taxes
should be apportioned in the same way. Direct taxes have been imposed at
only four brief intervals. The political power has been constant, and at
this moment sends twenty-one members to the other House.
There was a third compromise, not to be mentioned without shame. It was
that hateful bargain by which Congress was restrained until 1808 from
the prohibition of the foreign Slave-trade, thus securing, down to that
period, toleration for crime. This was pertinaciously pressed by the
South, even to the extent of absolute restriction on Congress. John
Rutledge said:
"If the Convention thinks that North Carolina, South Carolina, and
Georgia will ever agree to the Plan (the National Constitution), unless
their right to import slaves be untouched, the expectation is vain.
The people of those States will never be such fools as to give up so
important an interest." Charles Pinckney said: "South Carolina can never
receive the Plan, if it prohibits the slave-trade." Charles Cotesworth
Pinckney "thought himself bound to declare candidly, that he did not
think South Carolina would stop her importations of slaves in any short
time." The effrontery of the slave-masters was matched by the sordidness
of the Eastern members, who yielded again. Luther Martin, the eminent
member of the Convention, in his contemporary address to the Legislature
of Maryland, described the compromise. "I found," he said, "The Eastern
States, notwithstanding their aversion to Slavery, were very willing
to indulge the Southern States at least with a temporary liberty to
prosecute the slave-trade, _provided the Southern States would in their
turn gratify them by laying no restriction on navigation acts_." The
bargain was struck, and at this price the Southern States gained
the detestable indulgence. At a subsequent day Congress branded the
slave-trade as piracy, and thus, by solemn legislative act, adjudged
this compromise to be felonious and wicked.
Such are the three chief original compromises of the Constitution and
essential conditions of Union. The case of fugitives from service is not
of these. During the Convention it was not in any way associated with
these. Nor is there any evidence from the records of this body, that the
provision on this subject was regarded with any peculiar interest. As
its absence from the Articles of Confederation had not been the occasion
of solicitude or de-sire, anterior to the National Convention, so it
did not enter into any of the original plans of the Constitution. It was
introduced tardily, at a late period of the Convention, and adopted with
very little and most casual discussion. A few facts show how utterly
unfounded are recent assumptions.
The National Convention was convoked to meet at Philadelphia on the
second Monday in May, 1787. Several members appeared at this time, but,
a majority of the States not being represented, those present adjourned
from day to day until the 25th, when the Convention was organized by the
choice of George Washington as President. On the 28th a few brief rules
and orders were adopted. On the next day, they commenced their great
work.
On the same day, Edmund Randolph, of slaveholding Virginia, laid before
the Convention a series of fifteen resolutions, containing his plan for
the establishment of a New National Government. Here was no allusion to
fugitives slaves.
Also, on the same day, Charles Pinckney, of slaveholding South Carolina,
laid before the Convention what was called "A Draft of a Federal
Government, to be agreed upon between the Free and Independent States
of America," an elaborate paper, marked by considerable minuteness
of detail. Here are provisions, borrowed from the Articles of
Confederation, securing to the citizens of each State equal privileges,
in the several States, giving faith to the public records of the States,
and ordaining the surrender of fugitives from justice. But this draft,
though from the flaming guardian of the slave interest, contained no
allusion to fugitive slaves.
In the course of the Convention other plans were brought forward: on
the 15th of June, aseries of eleven propositions by Mr. Paterson, of
New Jersey, "so as to render the Federal Constitution adequate to the
exigencies of Government and the preservation of the Union"; on the 18th
June, eleven propositions by Mr. Hamilton, of New York, "containing his
ideas of a suitable plan of Government for the United States" and on the
19th June, Mr. Randolph's resolutions, originally offered on the 29th
May, "as altered, amended, and agreed to in Committee of the Whole
House." On the 26th July, twenty-three resolutions, already adopted
on different days in the Convention, were referred to a "Committee of
Detail," for reduction to the form of a Constitution. On the 6th August
this Committee reported the finished draft of a Constitution. And yet
in all these resolutions, plans, and drafts, seven in number, proceeding
from eminent members and from able committees, no allusion is made to
fugitive slaves. For three months the Convention was in session, and not
a word uttered on this subject.
At last, on the 28th August, as the Convention was drawing to a close,
on the consideration of the article providing for the privileges of
citizens in different States, we meet the first reference to this
matter, in words worthy of note. "General (Charles Cotesworth) Pinckney
was not satisfied with it. He SEEMED to wish some provision should be
included in favor of property in slaves." But he made no proposition.
Unwilling to shock the Convention, and uncertain in his own mind, he
only seemed to wish such a provision. In this vague expression of a
vague desire this idea first appeared. In this modest, hesitating phrase
is the germ of the audacious, unhesitating Slave Act. Here is the little
vapor, which has since swollen, as in the Arabian tale, to the power and
dimensions of a giant. 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 to require
"fugitive slaves and servants to be delivered up like criminals." Here
was no disguise. With Hamlet, it was now said in spirit,
"Seems, Madam! Nay it is. I know not seems."
But the very boldness of the effort drew attention and opposition. Mr.
Wilson, of Pennsylvania, the learned jurist and excellent man, at once
objected: "This would oblige the Executive of the State to do it at the
public expense." Mr. Sherman, of Connecticut, "saw no more propriety in
the public seizing and surrendering a slave or servant than a horse."
Under the pressure of these objections, the offensive proposition was
withdrawn,--never more to be renewed. The article for the surrender of
criminals was then unanimously adopted. On the next day, 29th
August, profiting by the suggestions already made, Mr. Butler moved
a proposition,--substantially like that now found in the
Constitution,--for the surrender, not of "fugitive slaves," as
originally proposed, but simply of "persons bound to service or labor,"
which, without debate or opposition of any kind, was unanimously
adopted.'
Here, palpably, was no labor of compromise, no adjustment of conflicting
interest,--nor even any expression of solicitude. The clause finally
adopted was vague and faint as the original suggestion. In its natural
import it is not applicable to slaves. If supposed by some to
be applicable, it is clear that it was supposed by others to be
inapplicable. It is now insisted that the term "persons bound to
service," or "held to service," as expressed in the final revision, is
the equivalent or synonym for "slaves." This interpretation is rebuked
by an incident to which reference has been already made, but which will
bear repetition. On the 13th September--a little more than a fortnight
after the clause was adopted, and when, if deemed to be of any
significance, it could not have been forgotten--the very word "service,"
came under debate, and received a fixed meaning. It was unanimously
adopted as a substitute for "servitude" in another part of the
Constitution, for the reason that it expressed "the obligations of free
persons," while the other expressed "the condition of slaves." In
the face of this authentic evidence, reported by Mr. Madison, it is
difficult to see how the term "persons held to service" can be deemed to
express anything beyond the "obligations of free persons." Thus, in the
light of calm inquiry, does this exaggerated clause lose its importance.
The provision, showing itself thus tardily, and so slightly regarded in
the National Convention, was neglected in much of the contemporaneous
discussion before the people. In the Conventions of South Carolina,
North Carolina,and Virginia, it was commended as securing important
rights, though on this point there was difference of opinion. In the
Virginia Convention, an eminent character, Mr. George Mason, with
others, expressly declared that there was "no security of property
coming within this section." In the other Conventions it was
disregarded. Massachusetts, while exhibiting peculiar sensitiveness at
any responsibility for slavery, seemed to view it with unconcern. One
of her leading statesmen, General Heath, in the debates of the State
Convention, strenuously asserted, that, in ratifying the Constitution,
the people of Massachusetts "would do nothing to hold the blacks in
slavery." "_The Federalist_," in its classification of the powers of
Congress, describes and groups a large number as "those which provide
for the harmony and proper intercourse among the States," and
therein speaks of the power over public records, standing next in the
Constitution to the provision concerning fugitives from service; but it
fails to recognize the latter among the means of promoting "harmony and
proper intercourse;" nor does its triumvirate of authors anywhere allude
to the provision.
The indifference thus far attending this subject still continued. The
earliest Act of Congress, passed in 1793, drew little attention. It was
not suggested originally by any difficulty or anxiety touching fugitives
from service, nor is there any contemporary record, in debate or
otherwise, showing that any special importance was attached to its
provisions in this regard. The attention of Congress was directed to
fugitives from justice, and, with little deliberation, it undertook, in
the same bill, to provide for both cases. In this accidental manner was
legislation on this subject first attempted.
There is no evidence that fugitives were often seized under this Act.
From a competent inquirer we learn that twenty-six years elapsed before
it was successfully enforced in any Free State. It is certain, that, in
a case at Boston, towards the close of the last century, illustrated
by Josiah Quincy as counsel, the crowd about the magistrate, at the
examination, quietly and spontaneously opened a way for the fugitive,
and thus the Act failed to be executed. It is also certain, that, in
Vermont, at the beginning of the century, a Judge of the Supreme Court
of the State, on application for the surrender of an alleged slave,
accompanied by documentary evidence, gloriously refused compliance,
unless the master could show a Bill of Sale from the Almighty. Even
these cases passed without public comment.