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offensive proposition was withdrawn.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.