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.

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