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.