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.