Part 27

Here it is important to consider, that, besides apprentices, there was a class of “indented servants” embraced by this clause. From Bancroft we learn that this species of servitude, under indentures or covenants, had from the first existed in Virginia. According to the historian, “the servant stood to his master in the relation of a _debtor_,” which, be it observed, is not the condition of a slave. From the same authority we learn that “the supply of white servants became a regular business,”--that, “like negroes, they were to be purchased on shipboard, as men buy horses at a fair,”--that “in 1672 the average price in the Colonies, where five years of service were due, was about ten pounds, while a negro was worth twenty or twenty-five pounds.”[326] The Scots captured on the field of Dunbar, royalist prisoners of the Battle of Worcester, and companions of Monmouth in his ill-starred insurrection were sent to the Colonies as a merchantable commodity, and there held in slavery for life or for years.

The other historian of our country, Hildreth, contributes to our knowledge of this class of servants. According to him, the importation of indented white persons, called “servants,” or sometimes “redemptioners,” in contradistinction to negroes, known as slaves, was extensively carried on as late as 1750, especially in the Middle States; and he mentions, that the Colonial enactments for keeping them in order, and especially for preventing their escape, were often very harsh and severe. They were put, for the most part, on a level with slaves, but their case in other respects was different. Except in very young persons, the term of service seldom or never exceeded seven years, and in all cases it was limited by law.[327] Even during the Revolution these indented servants appear on the stage. Many were enlisted in the army, and, yielding to the earnest request of Washington, Congress relinquished a plan already adopted of stopping a portion of their pay for the benefit of their masters.[328]

An English Colonial official, Eddis, in a letter from America, dated September 20, 1770, describes four different denominations of persons “in a state of servitude”: first, the “negroes,” who are the entire property of their respective owners; secondly, “convicts,” transported from the mother country for a limited term; “indented servants,” engaged for five years previous to leaving England; and “free-willers,” supposed from their situation to possess superior advantages. These he proceeds to describe. Of the last class he says, they are received under express condition, that, on arrival in America, they are to be allowed a number of days to dispose of themselves most to their advantage, but, in fact, they are rarely permitted to set foot on shore until they have bound themselves.[329]

If, happily, at the formation of the Constitution, these servants had diminished in number, or had ceased to exist as a class, the condition was not unknown. They were persons “held to service or labor,” and the provision of the Constitution was strictly applicable to them.

Rejecting the odious application involving the support of Slavery, we follow received rules and the undoubted genius of the Common Law. How anxiously judges seek to evade an obnoxious penal statute is illustrated by a curious case mentioned by Lord Campbell. It was proved that the defendant, being in a stubble-field with a pointer, fired his gun at a covey of partridges, and shot two, when the judge, disliking to enforce the Game Laws, objected that there was no evidence that the gun was loaded with shot, and advised the jury to conclude that the birds fell dead from fright.[330] But a clause for the rendition of fugitive slaves is entitled to as little respect as the Game Laws, and, when the words employed are applicable to others than slaves, they should not be applied to slaves.

NO LAPSE OF TIME CAN DEFEAT AN INTERPRETATION IN FAVOR OF LIBERTY.

Against this interpretation, so overpowering in reason and authority, it is no objection that thus far Slavery has prevailed. There is no statute of limitation and no prescription against the undying claims of Liberty. Rejected or neglected in one generation, they revive in another; nor can they be impaired by any desuetude. This objection was impotent to prevent Lord Mansfield from declaring that Slavery could not exist in England, although practically, under a false interpretation of the British Constitution, sustained by the professional opinions of Talbot and Yorke, and by the judgment of the latter on the bench, under the name of Lord Hardwicke, African slaves were sold in the streets of London, and advertised for sale in English papers, for a period full as long as that which has witnessed the false interpretation of our Constitution. As length of time did not prevail against a true interpretation of the British Constitution in the case of Somerset, it ought not to prevail against a true interpretation of our Constitution now.

There is no chemistry in time to transmute wrong into right. Therefore the whole question on the Constitution is still open, as on the day of its adoption. The cases of misinterpretation are of no value,--at least they cannot settle the question against Liberty. Such was the noble declaration of Charles James Fox in the British Parliament, when, in words strictly pertinent now, he said: “Wherever any usage appeared subversive of the Constitution, if it had lasted for one or for two hundred years, _it was not a precedent, but an usurpation_.”[331] And such is the character of every instance in which our Constitution has been perverted to sanction Slavery.

PERVERSIONS WITH REGARD TO ORIGIN OF THE FUGITIVE CLAUSE.

A slight examination will show prevailing perversions with regard to the origin and history of this clause. Not content with imparting to it a meaning which it cannot bear, the partisans of Slavery have given to this clause an origin and history having no foundation in truth.

It is common to assert that the clause was intended to remove or counteract some difficulty which had occurred anterior to the Convention. But there is no evidence of any such difficulty. There was no complaint. Not a single voice was raised in advance to ask any such security.

It is also asserted, with peculiar confidence, that this clause, interpreted to require the rendition of fugitive slaves, constituted one of the original compromises of the Constitution, without which the Union could not have been formed. This pretension makes an asserted stipulation for the rendition of fugitive slaves one of the corner-stones of the Union. To this discreditable imputation upon the fathers of the Republic the Supreme Court seems to have lent sanction, when it declared, in the famous Prigg case, not only that “the object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves _as property_ in every State in the Union into which they might escape,” but that “the full recognition of this right and title … was so vital to the preservation of their domestic interests and institutions, that it cannot be doubted _that it constituted a fundamental article, without the adoption of which the Union could not have been formed_.”[332] Mark the way in which this extraordinary statement is ushered in,--“It cannot be doubted”! But it is doubted, and more too. Chief Justice Taney, at a later day, put forth the statement, that, during the Revolution, it was an accepted truth that colored men “had no rights which the white man was bound to respect,”[333]--and this statement was said to stand on authentic history; but it is now exploded, and the other statement must share the same fate. A careful inquiry shows that it is utterly without support in the records of the Convention, where the real compromises are revealed; nor is there a single contemporary pamphlet, speech, article, or published letter, out of which any such thing can be inferred. Surely, had this provision been of such controlling importance, it could not have escaped notice, at least, in the “Federalist,” when its writers undertook to describe and group the powers of Congress “which provide for the harmony and proper intercourse among the States”;[334] but the “Federalist” is entirely silent with regard to it. And yet we are gravely told “it cannot be doubted” that this provision “constituted a fundamental article, without the adoption of which the Union could not have been formed.” Frequent repetition has caused the common belief that this was history, instead of fable.

The actual compromises of the Constitution are well known. They were three in number. One established the equality of all the States in the Union, by securing equal representation in the Senate for the small States and large States. Another allowed representatives to the Slave States according to the whole number of free persons and “three fifths of all other persons,” in consideration that direct taxes should be apportioned in the same way. Another was the toleration of the slave-trade for twenty years, in consideration of commercial concessions to the “Eastern members.” Such are the actual compromises of the Constitution, with regard to which there is evidence. But imagination or falsehood is the only authority for adding the rendition of fugitive slaves to this list.

TRUE ORIGIN OF THE FUGITIVE CLAUSE.

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.

LEGISLATION FOR RENDITION OF FUGITIVE SLAVES.

From the clause in the Constitution, the Committee pass to a consideration of the legislation founded upon it. Of course, if the clause is misunderstood, no legislation can derive any validity from it. _Nothing can come out of nothing_; and since there is nothing in the Constitution positively requiring rendition of fugitive slaves by the National Government, there can be no authority for any legislation by Congress on the subject. Therefore the argument against the existing statutes is complete. But, since it is proposed to reverse an early policy of the Government, the Committee are unwilling to stop here. These statutes must be considered in their history and character.

As early as 1793, while Congress was sitting in Philadelphia, provisions for the surrender of fugitive slaves were fastened upon a bill for the surrender of fugitives from justice, and the whole was adopted, apparently with little consideration. Thus, accidentally, Congress assumed the _odious_ power to organize slave-hunting. But the Act was scarcely passed, before the conscience of people, not only at the North, but even in Maryland, began to be aroused. Granville Sharp, who in England so bravely maintained the national cause as well as the cause of the slave, addressed a letter to the “Maryland Society for Promoting the Abolition of Slavery and the Relief of Free Negroes and others unlawfully held in Bondage,” where he set forth elaborately those binding rules of interpretation, which, according to English law, require a court to incline always in favor of Liberty. This letter purports to have been published, as a pamphlet, by order of the Society, and to have been printed at “Baltimore, in Calvert Street, near the Court-House, by D. Graham, L. Yundt, and W. Patton,” in 1793. In a brief preface, the Maryland Society thus reveals the trials attending the new Fugitive Slave Act:--

“Still Slavery exists, and, _in the case of slaves escaping from their masters_, the friends of Universal Liberty are often embarrassed in their conduct by a conflict between their principles and _the obligations imposed by unwise and perhaps unconstitutional laws_.”

Such is a contemporary record of sensibilities in a Slave State; and let it be mentioned to the honor of Maryland. But it is reasonable to suppose that sensibilities in States further north were touched still more. Mr. Quincy, whose living memory embraces this early period, reports, that, when an enforcement of this Act was attempted in Boston, the crowd thronging the room of the magistrate quietly and spontaneously opened a lane for the fugitive, who was thus enabled to save himself from Slavery, and also save the country from the dishonor of such a sacrifice. Almost at the same time, in patriotic Vermont, a judge of the Supreme Court of the State, on application for the surrender of an alleged slave, accompanied by documentary evidence, refused to comply, _unless the master could show a bill of sale from the Almighty_. Such was the popular feeling which this earlier legislation encountered.

There is authentic evidence that this popular feeling was recognized by President Washington as a proper guide, where he was personally interested. A slave of Mrs. Washington had escaped to New Hampshire. The President, in an autograph letter, which has been produced in the Senate,[346] addressed to Mr. Whipple, the collector at Portsmouth, and dated at Philadelphia, November 28, 1796, after expressing the desire of “her mistress” for the return of the slave, lays down the following rule of conduct:--

“I do not mean, however, by this request, that _such violent measures_ should be used as _would excite_ a mob or riot, which might be the case, if she has adherents, _or even uneasy sensations in the minds of well-disposed citizens_. Rather than either of these should happen, I would forego her services altogether,--and the example, also, which is of infinite more importance.”

The fugitive never was returned, but survived to a good old age, down to a recent period,--a living witness to that public opinion which made even the mildest of Fugitive Slave Acts a dead letter.