Part 26

Our experience shows that the law as the Senator expounds it is not so accepted by this railroad corporation. He knows as well as I that colored persons are daily insulted. Some of these victims will compare in respectability of conduct with any whom I now have the honor to address. My colleague alluded to a colored clergyman whom he saw thrust out only the other day. We know of an officer of the United States, wearing the national uniform, thrust out; and the Senator from Illinois will allow all these things to be done, and not interfere. He tells us that it is contrary to law, and yet he allows it to proceed under the very eyes of the Senate. Sir, I insist that the Senate, when such outrage occurs, shall show that it has power, and is willing to exercise it on the side of justice.

But the Senator reminds us that in other days the Fugitive Act was passed here, and made especially offensive; and he pleads with us not to imitate that bad example, by introducing anything that may be offensive. I do not like the comparison of the Senator. Does he not know well that everything introduced into the Fugitive Slave Bill was in the interest of Slavery, and contrary to every sentiment of humanity, and that it was intended to give offence? The proposition now moved is opposite in character. It is to sustain the principles of humanity, to uphold human rights, to vindicate human equality, and with no purpose of offence,--none, not the least. The illustration of the Senator is entirely out of place. True it is that in those other days we were offended, and it was part of the hardships to which we were exposed. As, in the days which preceded our Revolution, the British officers said they would cram the stamps down the throats of the American people, so, in the same malignant spirit, the Slave-Masters insisted upon cramming Slavery down the throats of the Senate and the country. There was nothing but brutality then. Slavery in all its features is bad, but one of its most odious manifestations was the revolting insensibility to every sentiment of delicacy and humanity which it created in its supporters.

Sir, the Senator from Illinois knows well that it is in a very different spirit that propositions like the present are brought forward. It is always in the interest of human rights, and I need not say to that Senator, so far as I am concerned, with no other purpose than that patent in the proposition itself, and with no idea of offending any human being,--on the contrary, with a desire to avoid offence, if I possibly can. In that spirit I wish to do my duty on this floor. I would never give offence to any one, here or elsewhere, if I knew how to avoid it, while in all things I faithfully discharge my public duty.

The debate continued, when Mr. Grimes, of Iowa, said he should like to have Mr. Sumner answer one question. “Suppose we pass this amendment and put it into the law, and the Company goes on and does exactly as it has been doing, excluding these men, what are these colored men going to do? Have they not got to go to law then? Will they not be compelled to enforce their rights in court? Will they not be compelled to employ lawyers? If that be so, what advantage will it be to them to adopt this amendment under the present condition of things?”

MR. SUMNER. I will answer. Because the Company will not dare to continue this outrage in the face and eyes of a positive provision of statute. That is the answer.

On the Yeas and Nays, the amendment was lost,--Yeas 14, Nays 16,--several Republicans uniting with the Democrats against it.

At the next stage of the bill, Mr. Sumner renewed his amendment, when it was adopted,--Yeas 17, Nays 16. The bill passed the Senate, and was the subject of conference between the two Houses, but it never became a law.

* * * * *

January 17, 1865, the Senate having under consideration the bill to incorporate the Baltimore and Washington Depot and Potomac Ferry Railway Company, Mr. Sumner moved the same amendment, which was adopted,--Yeas 24, Nays 6. This bill was passed by the Senate, but it never became a law.

February 4, 1865, the Senate having under consideration a bill to amend the charter of the Metropolitan Railroad Company, Mr. Sumner moved the following amendment:--

“That the provision prohibiting any exclusion from any car on account of color, already applicable to the Metropolitan Railroad, is hereby extended to every other railroad in the District of Columbia.”

This amendment became necessary in order to reach the Washington and Georgetown Railroad Company. It was opposed by Mr. Dixon, of Connecticut, Mr. Conness, of California, and Mr. Hale, of New Hampshire, the last regarding it in the nature of general legislation on a private act. Mr. Sumner replied, that it was needed, in order to bring the Metropolitan Railroad on an equality with the other roads, inasmuch as Congress had already imposed the prohibition upon that road; and, secondly, that it was germane, inasmuch as the Senate might engraft upon any railroad charter any proposition, special or general, concerning the subject-matter.

The amendment was lost,--Yeas 19, Nays 20.

At the next stage of the bill, Mr. Sumner renewed his amendment. February 6th, Mr. Dixon, Chairman of the Committee on the District of Columbia, withdrew his opposition, saying: “I opposed it on the ground that it seemed to conflict with the rights of another Company, not now before the Senate [the Washington and Georgetown Railroad Company]; but since that time I have seen the managers and controllers of that Company, and find that they are unwilling to contend on this subject with what they consider to be the public opinion. They therefore make no objection to it, and I shall make none.”

The amendment was adopted,--Yeas 26, Nays 10. The bill as amended passed the House and was approved by the President, so that it became illegal for any railroad in the District of Columbia to exclude any person from any car on account of color.

The Washington and Georgetown Railroad did not promptly recognize the law. Colored persons were excluded from their cars, when Mr. Sumner addressed a letter to the President of the road, calling attention to the contumacy of the Company, and announcing his purpose, if it continued, to move, at the next session of Congress, the forfeiture of the charter. At the same time he addressed a communication to the District Attorney, asking him to proceed against the Company. At last the law was recognized, and from that date all the street-cars of Washington have been open to colored persons.

WRONG AND UNCONSTITUTIONALITY OF FUGITIVE SLAVE ACTS.

REPORT IN THE SENATE OF THE COMMITTEE ON SLAVERY AND FREEDMEN, FEBRUARY 29, 1864.

February 29, 1864, Mr. Sumner reported from the Committee on Slavery and Freedmen a bill to repeal all acts for the rendition of fugitive slaves. Accompanying this bill was the following report, of which ten thousand extra copies were ordered to be printed for the use of the Senate, together with the views of the minority, by Mr. Buckalew.

The debate on this subject, and the final repeal of all Fugitive Slave Acts, appear at a later date.[312]

The Select Committee on Slavery and the Treatment of Freedmen, to whom were referred sundry petitions asking for the repeal of the Fugitive Slave Act of 1850, and also asking for the repeal of all acts for the rendition of fugitive slaves, have had the same under consideration, and ask leave to make the following report.

Two Fugitive Slave Acts still exist unrepealed on our statute-book. The first, dated as long ago as 1793, was preceded by an official correspondence, supposed to show necessity for legislation.[313] The second, belonging to the compromises of 1850, was introduced by a report from Mr. Butler, of South Carolina, at that time Chairman of the Judiciary Committee of the Senate.[314] In proposing the repeal of all legislation on the subject, it seems not improper to imitate the latter precedent by a report assigning briefly the reasons governing the Committee.

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.

ANALYSIS OF THE WORDS OF THE FUGITIVE CLAUSE.

Looking more minutely at the precise words of this clause, we see how completely it is stamped with equivocation from beginning to end. _Every descriptive word it contains is double in signification._ The clause may be seen, first, in what it does not contain; and, secondly, in what it does contain. It does not contain the word “slave” or “slavery,” which singly and exclusively denotes the idea of property in man. Had either of these fatal words been employed, there would have been no uncertainty or duplicity. But in abandoning these words, all idea of property in man was abandoned also. Other words were adopted, simply because they might mean something else, and therefore would not render the Constitution on its face “odious.” But the unquestionable fact that these words might mean something else makes it impossible for them to mean “slave” or “slavery,” unless in this behalf we set aside the most commanding rules of interpretation. It is clear that the authors of this clause attempted an impossibility. They wished to secure Slavery without plainly saying so; but such is Slavery that it cannot be secured without plainly saying so. Naturally and inevitably they failed, as if they had attempted to describe _black_ by words which might mean _white_, or to authorize crime by words which naturally mean something that is not crime. The thing could not be done. The attempt to square the circle is not more absurd.

The clause begins with the descriptive words, “No _person_ held to service or labor in one State under the laws thereof.” Now a slave is not a “person,” with the rights of persons, but a _chattel_ or _thing_. Such is the received definition of the Slave States, handed down from Aristotle. He is not “held to service or labor,” but he is held as property. The terms employed describe an apprentice, but not a slave. And he must be held “under the laws” of a State. Here again is the case of an apprentice, who is clearly held “under the laws” of a State. But we have the authority of Mr. Mason, recently of the Senate from Virginia, for saying that no proof can be produced that Slavery in any State “is established by _existing laws_.”[325] The person thus described shall not “be _discharged_ from such service or labor.” Clearly an apprentice is discharged, but a slave is manumitted or emancipated. This undischarged person “shall be delivered up on _claim_ of the party to whom such service or labor may be _due_.” But all these words imply _contract_, or at least _debt_, as in the case of an apprentice. The slave can _owe_ no “service or labor” to his master. There is nothing in their relations out of which any such obligation can spring. The whole condition stands on force and nothing else. It is robbery tempered by the lash,--not merely robbery of all the fruits of industry, but robbery of wife and child. To such terrible assumption the language of _contract_ or _debt_ is totally inapplicable. Nothing can be “due” from slave to master, unless it be that “resistance to tyrants” which is “obedience to God.” It is absurd to say that “labor or service,” in any sense, whether of justice or of law, can be “due” from the slave. The same power which takes wife and child may exact this further sacrifice, but not because it is “due.”

Such is the simple truth touching this much debated clause. At the touchstone of unquestioned rules of interpretation its _odious_ character disappears, and astonishment prevails that the public mind for so long a period could have been perverted with regard to its true meaning. Nobody can doubt that this clause _may_ be interpreted in favor of Freedom, so as to exclude all idea of property in man. But if it _may_, then such is the voice of Freedom that it _must_.

APPLICABLE TO INDENTED SERVANTS.