That where the ministerial officers of the
United States have or shall incur
extraordinary expenses in executing the laws
thereof, the payment of which is not
specifically provided for, the President of
the United States is authorized to allow the
payment thereof, under special taxation of
the District or Circuit Court of the
district in which the said services have
been or shall be rendered, to be paid from
the appropriation for defraying the expenses
of the judiciary.
[Mr Sumner moved the following amendment to the
amendment:]
Provided, That no such allowance shall be
authorized for any expense incurred in
executing the Act of September 18, 1850, for
the surrender of fugitives from service to
labor; which said Act is hereby repealed.
[On this he took the floor, and spoke as
follows:]
MR. SUMNER: MR. President, here is a provision
for extraordinary expenses incurred in executing
the laws of the United States. Extraordinary
expenses! Sir, beneath these specious words
lurks the very subject on which, by a solemn
vote of this body, I was refused a hearing. Here
it is; no longer open to the charge of being an
"abstraction," but actually presented for
practical legislation; not introduced by me, but
by one of the important committees of the
Senate; not brought forward weeks ago, when
there was ample time for discussion, but only at
this moment, without any reference to the late
period of the session. The amendment, which I
now offer, proposes to remove one chief occasion
of these extraordinary expenses. And now, at
last, among these final crowded days of our
duties here, but at the earliest opportunity, I
am to be heard; not as a favor, but as a right.
The graceful usages of this body may be
abandoned, but the established privileges of
debate cannot be abridged. Parliamentary
courtesy may be forgotten, but parliamentary law
must prevail. The subject is broadly before the
Senate. By the blessing of God, it shall be
discussed.
Sir, a severe lawgiver of Greece vainly sought
to secure permanence for his imperfect
institutions, by providing that citizen, who at
any time, attempted an alteration or repeal of
any part thereof, should appear in the public
assembly with a halter around his neck, ready to
be drawn if his proposition failed to be
adopted. A tyrannical spirit among us, in
unconscious imitation of this antique and
discarded barbarism, seeks to surround an
offensive institution with a similar safeguard.
In the existing distemper of the public mind and
at this present juncture, no man can enter upon
the service which I now undertake, without a
personal responsibility, such as can be
sustained only by that sense of duty which,
under God, is always our best support. That
personal responsibility I accept. Before the
Senate and the country let me be held
accountable for this act, and for every word
which I utter.
With me, sir, there is no alternative. Painfully
convinced of the unutterable wrongs and woes of
slavery; profoundly believing that, according to
the true spirit of the Constitution and the
sentiments of the fathers, it can find no place
under our National Government - that is in every
respect sectional, and in no respect national
that is is always everywhere the creature and
dependent of the States, and never anywhere the
creature or dependent of the Nation, and that
the Nation can never, by legislative or other
act, impart to it any support, under the
Constitution of the United States; with these
convictions, I could not allow this session to
reach its close, without making or seizing an
opportunity to declare myself openly against the
usurpation, injustice, cruelty, of the late
enactment by Congress for the recovery of
fugitive slaves. Full well I know, sir, the
difficulties of this discussion, arising from
prejudices of opinion and from adverse
conclusions, strong and sincere as my own. Full
well I know that I am in a small minority, with
few here to whom I may look for sympathy or
support. Full well I know that I must utter
things unwelcome to many in this body, which I
cannot do without pain. Full well I know that
the institution of slavery in our country, which
I now proceed to consider, is as sensitive as it
is powerful - possessing a power to shake the
whole land with a sensitiveness that shrinks and
trembles at the touch. But, while things may
properly prompt me to caution and reserve, they
cannot change my duty, or my determination to
perform it. For this I willingly forget myself,
and all my personal consequences. The favor and
good-will of my fellow-citizens, of my brethren
of the Senate, sir - grateful to me as it justly
is - I am ready, if required, to sacrifice. All
that I am or may be, I freely offer to this
cause.
And here allow me, for one moment, to refer to
myself and my position. Sir, I have never been a
politician. The slave of principles, I call no
party master. By sentiment, education, and
conviction, a friend of Human Rights, in their
utmost expansion, I have ever most sincerely
embraced the Democratic Idea; not, indeed, as
represented or professed by any party, but
according to its real significance, as
transfigured in the Declaration of Independence,
and in the injunctions of Christianity. In this
Idea I saw no narrow advantages merely for
individuals or classes, but the sovereignty of
the people and the greatest happiness of all
secured by equal laws. Amidst the vicissitudes
of public affairs, I trust always to hold fast
to this Idea, and to any political party which
truly embraces it.
Party does not constrain me; nor is my
independence lessened by any relations to the
office which gives me a title to be heard on
this floor. And here, sir, I may speak proudly.
By no effort, by no desire of my own, I find
myself a Senator of the United States. Never
before have I held public office of any kind.
With the ample opportunities of private life I
was content. no tombstone for me could bear a
fairer inscription that this: "Here lies one
who, without the honors or emoluments of public
station, did something for his fellowman." From
such simple aspirations I was taken away by the
free choice of my native Commonwealth, and
placed in this responsible post of duty, without
personal obligation of any kind, beyond what was
implied in my life and published words. The
earnest friends, by whose confidence I was first
designated, asked nothing from me, and,
throughout the long conflict which ended in my
election, rejoiced in the position which I most
carefully guarded. To all my language was
uniform, that I did not desire to be brought
forward; that I would do nothing to promote the
result; that i had no pledges or promises to
offer; that the office should seek me, and not I
the office; and that it should find me in all
respects an independent man, bound to no party
and to no human being, but only, according to my
best judgment, to act for the good of all.
Again, sir, I speak with pride, both for myself
and others, when I add that these avowals found
a sympathizing response. In this spirit I have
come here, and in this spirit I shall speak
today.
Rejoicing in my independence and claiming
nothing from party ties, I throw myself upon the
candor and magnanimity of the Senate. I now ask
your attention; but I trust not to abuse it. i
may speak strongly; for I shall speak openly and
from the strength of my convictions. i may speak
warmly; for I shall speak from the heart. But in
no event can I forget the amenities which belong
to debate, and which especially become this
body. Slavery I must condemn with my whole soul;
but here I need only borrow the language of
slaveholders themselves; nor would it accord
with my habits or my sense of justice to exhibit
them as the impersonation of the institution -
Jefferson calls it the "enormity" - which they
cherish. Of them I do not speak; but without
fear and without favor, as without impeachment
of any person, I assail this wrong. Again, sir,
I may err; but it will be the Fathers. I plant
myself on the ancient ways of the Republic, with
its grandest names, its surest landmarks, and
all its original altar-fires about me.
And now, on the very threshold, I encounter the
objection that there is a final settlement, in
principle and substance, of the question of
Slavery, and that all discussion of it is
closed. Both the old political parties of the
country, by formal resolutions, have united in
this declaration. On a subject which for years
has agitated the public mind; which yet
palpitates in every heart, and burns on every
tongue; which, in its immeasurable importance,
dwarfs all other subjects; which, by its
constant and gigantic presence, throws a shadow
across these Halls; which at this very time
calls for appropriations to meet extraordinary
expenses it has caused, they have imposed the
rule of silence. According to them, sir, we may
speak of everything except that alone, which is
most present in all our minds.
To this combined effort I might fitly reply,
that, with flagrant inconsistency, it challenges
the very discussion which it pretends to forbid.
Such a declaration, on the eve of an election,
is, of course, submitted to the consideration
and ratification of the people. Debate, inquiry,
discussion, are the necessary consequence.
Silence becomes impossible. Slavery, which you
are profess to banish from the public attention,
openly by your invitation enters every
political meeting and every political
convention. nay, at this moment it stalks into
this Senate, crying, like the daughters of the
horseleech, "Give! give!"
But no unanimity of politicians can uphold the
baseless assumption, that a law, or any
conglomerate of laws, under the name of
Compromise, or howsoever called, is final.
Nothing can be plainer than this; that, by no
parliamentary device or knot, can say
Legislature tie the hands of a succeeding
Legislature, so as to prevent the full exercise
of its constitutional powers. Each legislature,
under a just sense of its responsibility, must
judge for itself; and, if it think proper, it
may revise or amend, or absolutely undo the work
of its predecessors. The laws of the Medes and
Persians are proverbially said to have been
unalterable; but they stand forth in history as
a single example of such irrational defiance of
the true principles of all law.
To make a law final, so as not to be reached by
Congress, is, by mere legislation, to fasten a
new provision on the Constitution. Nay, more; it
gives to the law a character which the very
Constitution does not possess. The wise fathers
did no treat the country as a Chinese foot,
never to grow after infancy; but, anticipating
Progress, they declared expressly that their
great Act is not final. According to the
Constitution itself, there is not one of it
existing provision - not even that with regard
to fugitives from labor - which may not at all
times be reached by amendment, and thus be drawn
into debate. This is rational and just. Sir,
nothing from man's hands, nor law, nor
constitution, can be final. Truth alone is
final.
Inconsistent and absurd, this effort is
tyrannical also. The responsibility for the
recent Slave Act and for Slavery everywhere
within the jurisdiction of Congress necessarily
involves the right to discuss them. To separate
these is impossible. Like the twenty-fifth rules
of the House of Representatives against
petitions on Slavery - now repealed and
dishonored - the Compromise, as explained and
urged, is a curtailment of the actual powers of
legislation, and a perpetual denial of the
indisputable principle that the right to
deliberate is coextensive with the
responsibility for an act. To sustain Slavery,
it is now proposed to trample on free speech. In
any country this would be grievous; but here,
where the Constitution expressly provides
against abridging freedom of speech, it is a
special outrage. in vain do we condemn the
despotism's of Europe, while we borrow the
rigors with which they repress Liberty, and
guard their own uncertain power. For myself, in
no factious spirit, but solemnly and in loyalty
to the Constitution, as a Senator of
Massachusetts, I protest against this wrong. On
Slavery, as on every other subject, I claim the
right to be heard. That right I cannot, I will
not abandon. "Give me the liberty to know, to
utter and to argue freely, above all liberties;"
these are the glowing words which flashed from
the soul of John Milton, in his struggles with
English tyranny. With equal fervor they should
be echoes now by every American, not already a
slave.
But, sir, this effort is impotent as tyrannical.
The convictions of the heart cannot be
repressed. The utterances of conscience must be
heard. They break froth with irrepressible might.
As well attempt to the check the tides of Ocean,
the currents of the Mississippi, or the rushing
waters of Niagara. The discussion of Slavery
will proceed, wherever two or three are gathered
together - by the fireside, on the highway, at
the public meeting, in the church. The movement
against Slavery is from the Everlasting Arm. Even
now it is gathering its forces, soon to be
confessed everywhere. It may not yet be felt in
the high places of office and power; but all who
can put their ears humbly to the ground, will
hear and comprehend its incessant and advancing
tread.
The relations of the Government of the United
States - I speak of the National Government - to
Slavery, though plain and obvious, are
constantly misunderstood. A popular belief at
this moment makes Slavery a national
institution, and, of course, renders its support
a national duty. The extravagance of this error
can hardly be surpassed. An institution, which
our fathers most carefully omitted to name in
the Constitution, which, according to the
debates in the Convention, they refused to cover
with any "sanction," and which, at the original
organization of the Government, was merely
sectional, existing nowhere on the national
territory, is now above all other things
blazoned as national. Its supporters plume
themselves as national. The old political
parties, while upholding it, claim to be
national. A National Whig is simply a Slavery
Whig, and a National Democrat is simply a
Slavery Democrat, in contradistinction to all
who regard Slavery as a sectional institution,
within the exclusive control of the States, and
with which the nation has nothing to do.
As Slavery assumes to be national, so, by an
equally strange perversion, Freedom is degraded
to be sectional, and all who uphold it, under
the national Constitution, share this name
epithet. The honest efforts to secure its
blessings, everywhere within the jurisdiction of
Congress, are scouted as sectional; and this
cause, which the founders of our National
Government had so much as heart, is called
sectionalism. These terms, now belonging to the
commonplaces of political speech, are adopted
and misapplied by the most persons without
reflection. But herein is the power of Slavery.
According to a curious tradition of the French
language, Louis XIV, the grand monarch, by an
accidental error speech, among supple courtiers,
changed the gender of a noun; but Slavery has
done more than this. It has changed word for
word. It has taught many to say national,
instead of sectional, and sectional instead of
national.
Slavery national! Sir, this is all a mistake and
absurdity, fir to take a place in some new
collection of Vulgar Errors, by some other Sir
Thomas Browne, with the ancient but exploded
stories, that the toad has stone in its head,
and that ostriches digest iron. According to the
true spirit of the Constitution, and the
sentiments of the Fathers, Slavery and not
Freedom is sectional, which Freedom and not
Slavery is national. On this unanswerable
proposition I take my stand, and here commences
my argument.
The subject presents itself under two principle
heads; FIRST, the true relations of the National
Government to Slavery, wherein it will appear
that there is no national fountain out of which
Slavery can be derived, and no national power,
under the Constitution, by which it can be
supported. Enlightened by this general survey,
we shall be prepared to consider, SECONDLY, the
true nature of the provision for the rendition
of fugitives from labor, and herein especially
the unconstitutional and offensive legislation
of Congress in pursuance thereof.
I. And now for the TRUE RELATIONS OF THE
NATIONAL GOVERNMENT TO SLAVERY. These will be
readily apparent, if we do not neglect
well-established principles.
If Slavery be national, if there by any power in
the National Government to uphold this
institution - as in the recent Slave Act - it
must be by virtue of the Constitution. nor can
it be by mere inference, implication, or
conjecture. According to the uniform admission
of courts and jurists in Europe, again and again
promulgated in our country, Slavery can be
derived only from clear and special recognition.
"The state of Slavery," said Lord Mansfield,
pronouncing judgment in the great case of
Somersett, "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." And a slaveholding
tribunal, the Supreme Court of Mississippi,
adopting the same principle, has said:
"Slavery is condemned by reason, and the laws of
nature. It exists and can exist only through
municipal regulations."
And another slaveholding tribunal, the Supreme
Court of Kentucky, has said:
"We view this as a right existing by positive
law of a municipal character, without foundation
in the law of nature or the unwritten and
uncommon law.
Of course every power to uphold Slavery must
have an origin as distinct as that of Slavery
itself. Every presumption must be as strong
against such a power as against Slavery. A power
so peculiar and offensive, so hostile to reason,
so repugnant to the law of nature and the inborn
Rights of Man; which despoils its victims of the
fruits of their labor; which substitutes
concubinage for marriage; which abrogates the
relation of parent and child; which, by a denial
of education, abases the intellect, prevents a
true knowledge of God, and murders the very
soul; which, amidst a plausible physical
comfort, degrades man, created in the divine
image, to the level of a beast; - such a power,
so eminent, so transcendent, so tyrannical, so
unjust, can find no place in any system of
Government, unless by virtue of positive
sanction. It can spring from no doubtful
phrases. it must be declared by unambiguous
words, incapable of a double sense.
Slavery, I now repeat, is not mentioned in the
Constitution. The name Slave does not pollute
this Charter of our Liberties. No "positive"
language gives to Congress any power to make a
Slave or to hunt a Slave. To find even any
seeming sanction for either, we must travel,
with doubtful footsteps, beyond its express
letters, into the region of interpretation. But
here are rules which cannot be disobeyed. With
electric might for Freedom, they send a
pervasive influence through every provision,
clause and the word of the Constitution. Each
and all make Slavery impossible as a national
institution. They efface from the Constitution
every fountain out of which it can be derived.
First and foremost, is the Preamble. This
discloses the prevailing objects and principles
of the Constitution. This is the vestibule
through which all must pass, who would enter the
sacred temple. here are the inscriptions by
which they are earliest impressed. Here they
first catch the genius of the place. here the
proclamation of Liberty is soonest heard. "We
the People of the United States," says the
Preamble, "in order to form a more perfect
Union, establish justice, insure domestic
tranquility, provide for the common defense,
promote the general welfare, and secure the
blessings of Liberty to ourselves and our
posterity, do ordain and establish this
Constitution for the United States of America."
Thus, according to undeniable words, the
Constitution was ordained, not to establish,
secure, or sanction Slavery - not to promote the
special interests of slaveholders - not to make
Slavery national, in any way, form, or manner;
but to "establish justice," "promote the general
welfare," and "secure the blessings of Liberty."
Here surely Liberty is national.
Secondly. Next in importance to the Preamble are
the explicit contemporaneous declarations in the
Convention which framed the Constitution, and
elsewhere, expressed in different forms of
language, but all tending to the same
conclusion. By the Preamble, the Constitution
speaks for Freedom. By these declarations, the
Fathers speak as the Constitution speaks. Early
in the Convention, Governor Morris, of
Pennsylvania, broke forth in the language of an
Abolitionist: "He never would concur in
upholding domestic slavery. It was a nefarious
institution. it was the curse of Heaven on the
State where it prevailed." Oliver Ellsworth, of
Connecticut, said: "The morality or wisdom of
Slavery are considerations belonging to the
State themselves." According to him, Slavery was
sectional.
At a later day, a discussion ensued on the
clause touching the African slave trade, which
reveals the definitive purposes of the
Convention. From the report of Mr. Madison we
learn what was said. Elbridge Gerry, of
Massachusetts, "though we had nothing to do with
the conduct of the States as to Slavery, but we
ought to be careful not to give any sanction to
it." According to these words, he regarded
Slavery as sectional, and would not make it
national. Roger Sherman, of Connecticut, "was
opposed to any tax on slaves imported, as making
the matter worse, because it implied they were
property." he would not have Slavery national.
After debate the subject was committed to a
committee of eleven, who subsequently reported a
substitute, authorizing "a tax on such migration
or importation, at a rate not exceeding the
average of duties laid on imports." This
language, classifying persons with merchandise,
seemed to imply a recognition that they were
property. Mr. Sherman at once declared himself
"against this part, as acknowledging men to be
property, by taxing them as such under the
character of slaves." Mr. Gorham "thought Mr.
Sherman should consider the duty not as implying
that slaves are property, but as a
discouragement to the importation of them." Mr.
Madison, in mild juridical phrase, "thought it
wrong to admit in the Constitution the idea that
there could be property in man." After
discussion it was finally agreed to make the
clause read:
"But a tax or duty may be imposed on such
importation, not exceeding ten dollars for each
person." [Art. 1 Sec. 9]
The difficulty seemed then to be removed, and
the whole clause was adopted. This record
demonstrates that the word "person" was employed
in order to show that slaves, everywhere under
the Constitution, were always to be regarded as
persons, and not as property, and thus to
exclude from the Constitution all idea that
there can be property in man. Remember well,
that Mr. Sherman was opposed to the clause in
its original form, "as acknowledging men to be
property;" that Mr. Madison was also opposed to
it, because he "though it wrong to admit in the
Constitution the idea that there could be
property in man;" and that, after these
objections, the clause was so amended as to
exclude the idea. But Slavery cannot be
national, unless this idea is distinctly and
unequivocally admitted into the Constitution.
Nor is this all. In the Massachusetts
Convention, to which the Constitution, when
completed, was submitted for ratification, a
veteran of the Revolution, General Heath, openly
declared that, according to his view, Slavery
was sectional, and not national. His language
was pointed. "I apprehend," he said, "that it is
not in our power to do anything for or against
those who are in Slavery in the Southern States.
No gentleman within these walls detests every
idea of Slavery more than I do; it is generally
detested by people of this Commonwealth; and I
ardently hope the time will soon come, when our
brethren in the Southern States will view it as
we do, and put a stop to it; but to this we have
no right to compel them. Two questions naturally
arise: If we ratify the Constitution, shall we
do anything by our act to hold the blacks in
slavery - or shall we become partakers in other
men's sins? I think neither of them."
Afterwards, in the first Congress under the
Constitution, on a motion which was much
debated, to introduce into the Impost Bill a
duty on the importation of Slaves, the same
Roger Sherman, who in the National Convention
had opposed the idea of property in man,
authoritatively exposed the true relations of
the Constitution to Slavery. His language was,
that "The Constitution does not consider these
persons as property; it speaks of them as
persons."
Thus distinctly and constantly, from the very
lips of the framers of the Constitution, we
learn the falsehood of the recent assumptions in
favor of Slavery and in derogation of Freedom.
Thirdly. According to a familiar rule of
interpretation, all laws concerning the same
matter, in pari materia, are to be construed
together. By the same reason, the grand
political acts of the Nation are to be construed
together, giving and receiving light from each
other. Earlier than the Constitution was the
Declaration of Independence, embodying, in
immortal words, those primal truths to which our
country pledged itself with its baptismal vows
as a Nation. "We hold these truths to be
self-evident," says the Nation, "that all men
are created equal, that they are endowed by
their Creator with certain unalienable rights;
that among them are life, liberty, and the
pursuit of happiness; that to secure these
rights governments are instituted among men,
deriving their just powers from the consent of
the governed." But this does not stand alone.
There is another national act of similar import.
on the successful close of the Revolution, the
Continental Congress, in an address to the
people, repeated the same lofty truth. "Let it
be remembered," said the Nation again, "that it
has ever been the pride and boast of America,
that the rights for which she has contended were
the rights of human nature. By the blessing of
the Author of these rights, they have prevailed
over all opposition, and form the basis of
thirteen independent States." Such were the acts
of the Nation in its united capacity. Whatever
may be the privileges of States in their
individual capacities, within their several
local jurisdictions, no power can be attributed
to the Nation, in the absence of positive,
unequivocal grant, inconsistent with these two
national declarations. Here, sir, is the
national heart, the national soul, the national
will, the national voice, which must inspire our
interpretation of the Constitution, and enter
into and diffuse itself through all the national
legislation. Thus again is Freedom national.
Fourthly. Beyond these is a principle of the
common law, clear, and indisputable, a supreme
rule of interpretation from which in this case
there can be no appeal. In any question under
the Constitution every word is to be construed
in favor of liberty. This rule, which commends
itself to the natural reason, is sustained by
time-honored maxims of our early jurisprudence.
Blackstone aptly expresses it, when he says that
"the law is always ready to catch at anything in
favor of liberty." The rule is repeated in
various forms. Favores ampliandi sunt; odia
restringenda. Favors are to be amplified ;
hateful things to be restrained. Lex Anglice est
lex misericordia. The law of England is a law of
mercy. Anglice jura in oinni casu libertati dant
favorem. The laws of England in every case show
favor to liberty. And this sentiment breaks
forth in natural, though intense, force, in the
maxim: Impius el crudelis judicandus est qui
libertati non favet. He is to be adjudged
impious and cruel who does not favor liberty.
Reading the Constitution in the admonition of
these rules, again I say Freedom is national.
Fifthly. From a learned judge of the Supreme Court
of the United States, in an opinion of the
Court, we derive the same lesson. In considering
the question, whether a State can prohibit the
importation of slaves as merchandise, and
whether Congress, in the exercise of its power
to regulate commerce among the States, can
interfere with the slave-trade between the
States, a principle has been enunciated, which,
while protecting the trade from any intervention
of Congress declares openly that the
Constitution acts upon no man as property. Mr.
Justice McLean says : " If slaves are considered
in some of the States as merchandise, that
cannot divest them of the leading and
controlling quality of persons by which they are
designated in the Constitution. The character of
property is given them by the local law. This
law is respected, and all rights under it are
protected by the Federal authorities ; but the
Constitution acts upon slaves as persons, and
not as property. * * * "The power over Slavery
belongs to the States respectively. It is local
in its character, and in its effects." {Groves
v. Slaughter, 15 Peters, R. 507.) Here again
Slavery is sectional, while Freedom is national.
Sir, such briefly are the rules of
interpretation which, as applied to the
Constitution, fill it with the breath of
Freedom,
Driving far off each thing of sin and guilt.
[John Milton, "Comus" (I.,420)]
To the history and prevailing sentiments of the
times we may turn for further assurance. In the
Spirit of Freedom the Constitution was formed.
In this spirit our Fathers always spoke and
acted. In this spirit the National Government
was first organized under Washington. And here I
recall a scene, in itself a touchstone of the
period, and an example for us, upon which we may
look with pure national pride, while we learn
anew the relations of the National Government to
Slavery.
The Revolution had been accomplished. The feeble
Government of the Confederation had passed away.
The Constitution, slowly matured in a National
Convention, discussed before the people,
defended by masterly pens, had been already
adopted. The thirteen States stood forth a
nation, wherein was unity without consolidation,
and diversity without discord. The hopes of all
were anxiously hanging upon the new order of
things and the mighty procession of events. With
signal unanimity Washington was chosen
President. Leaving his home at Mount Vernon, he
repaired to New York, where the first Congress
had already commenced its session, to assume his
place as elected Chief of the Republic. On the
thirtieth of April, 1789, the organization of
the Government was completed by his
inauguration. Entering the Senate Chamber, where
the two Houses were assembled, he was informed
that they awaited his readiness to receive the
oath of office. Without delay, attended by the
Senators and Representatives, with friends and
men of mark gathered about him, he moved to the
balcony in front of the edifice. A countless
multitude, thronging the open street, and
eagerly watching this great espousal,
With reverence look on his majestic face,
Proud to be less, but of his god-like race.
[ John Dryden "To Sir Godfrey Kneller" (v75-76)]
The oath was administered by the Chancellor of
New York. At this time, and in this presence,
beneath the uncovered heavens, Washington first
took this vow upon his lips : " I do solemnly
swear that I will faithfully execute the office
of President of the United States, and will to
the best of my ability, preserve, protect, and
defend the Constitution of the United States."
Over the President, on this high occasion,
floated the National Flag, with its stripes of
red, and its stars on a field of blue. As his
patriot eyes rested upon the glowing ensign what
currents have rushed swiftly through his soul!
In the early days of the Revolution, in those
darkest hours about Boston, after the battle of
Bunker Hill, and before the Declaration of
Independence, he thirteen stripes had been first
unfurled by him, as the emblem of the Union
among the Colonies for the sake of Freedom. By
him, at that time, they had been named the Union
flag. Trial, struggle, and war, were now ended,
and the Union, which they first heralded was
unalterably established. To every beholder,
these memories must have been full of pride and
consolation. But looking back upon the scene,
there is one circumstance which, more than all
its other associations, fills the soul; more
even than the suggestions of Union, which I
prize so much. At this moment, when Washington
took his first oath to support the Constitution
of the United States, the National Ensign,
nowhere within the National Territory, covered a
single slave. Then indeed, was Slavery
sectional, and Freedom national.
On the sea, an execrable piracy, the trade in
slaves was still, to the national scandal,
tolerated under the national flag. In the
states, as a sectional institution, beneath the
shelter of local laws, Slavery unhappily found a
home. But in the only territories at this time
belonging to the Nation, the broad region of the
North-west, it had already, by the Ordinance of
Freedom, been made impossible, even before the
adoption of the Constitution. The District of
Columbia, with its fatal incumbrance, had not
net been acquired.
The Government thus organized was Anti-Slavery
in character. Washington was a slave-holder; but
it would be unjust to his memory not to say that
he was an abolitionist also. His opinions do not
admit of question. Only a short time before the
formation of the National Constitution, he had
declared by letter, "that is was among his first
wishes to see some plan adopted, by which
Slavery may be abolished by law;" and again, in
another letter, "That, in support of any
legislative measure for the abolition of
slavery, his suffrage should not be wanting;"
and still further, in conversation with a
distinguished European Abolitionist, a traveling
propagandist of Freedom, Brissot de Warville,
recently welcomed to Mount Vernon, he had openly
announced, that to promote this object in
Virginia, "He desired the formation of a
Society, and that he would second it." By this
authentic testimony, he takes his place with the
early patrons of Abolition societies.
By the side of Washington, as standing beneath
the national flag he swore to support the
Constitution, were illustrious men, whose lives
and recorded words now rise in judgment. There
was John Adams, the Vice-President - great
vindicator and final negotiator of our national
independence - whose soul, flaming with freedom,
broke forth in the early declaration, that
"Consenting to Slavery is a sacrilegious breach
of trust," and whose immitigable hostility to
this wrong has been made immortal in his
descendants. There also was a companion in arms,
and attached friend of incomparable genius, the
yet youthful Hamilton, who, as a member of the
Abolition Society of New York, had only recently
united in a solemn petition for those who,
"though free by the laws of God, are held in
Slavery by the laws of the State." There, too,
was a noble spirit, the ornament of his country,
the exemplar of truth and virtue, who, like the
sun, ever held an unerring course, John Jay.
Filling the important post of Minister of
Foreign Affairs under the Confederation, he
found time to organize the Abolition Society of
New York, and to act as its President, until by
the nomination of Washington, he became Chief
Justice of the United States. In his sight,
Slavery was an "iniquity," "a sin of crimson
dye," against which, ministers of the gospel
should testify, and which the Government should
seek in every way to abolish. "Were I in the
legislature," he wrote, "I would present a bill
for this purpose with great care, and I would
never cease moving it till it became a law, or I
ceased to be a member. Till America comes into
this measure, her prayers to heaven will be
impious."
But they were not alone. The convictions and
earnest aspirations of the country were with
them. At the North these were broad and general.
At the South they found fervid utterance from
slaveholders. By early and precocious efforts
for "total emancipation," the Author of the
Declaration of Independence placed himself
foremost among the Abolitionists of the land. In
language now familiar to all, and which can
never die, he perpetually denounced Slavery. He
exposed its pernicious influences upon masters
as well as slave; declared that the love of
justice and the love of country pleaded equally
for the slave, and that the "Abolition of
domestic slavery was the greatest object of
desire." He believed that the "sacred side was
gaining daily recruits," and confidently looked
to the young for the accomplishment of this good
work. In fitful sympathy with Jefferson, was
another honored son of Virginia, the Orator of
Liberty, Patrick Henry, who, while confessing
that he was a master of slaves, said: "I will
not, I cannot justify it. However culpable my
conduct, I will so far pay my devoir to virtue,
as to own the excellence and rectitude of her
precepts, and lament my want of conformity to
them." At this very period, in the Legislature
of Maryland, on a bill for the relief of
oppressed slaves, a young man, afterwards by his
consummate learning and forensic powers, the
acknowledged head of the American bar, William
Pinkney, is a speech of earnest, truthful
eloquence - better far for his memory than his
transcendent professional fame - branded Slavery
as "iniquitous and most dishonorable;" "founded
in a disgraceful traffic;" "as shameful in its
continuance as in its origin;" and he openly
declared, that, "By the eternal principles of
natural justice, no master in the State has a
right to hold his slave in bondage a single
hour."
Thus at this time spoke the Nation. The Church
also joined its voice. And here, amidst the
diversities of religious faith, it is
instructive to observe the general accord. The
Quakers first bore their testimony. At the
adoption of the Constitution, their whole body,
under the early teaching of George Fox, and by
the crowning exertions of Benezet and Woolman,
and had become an organized band of
Abolitionists, penetrated by the conviction that
it was unlawful to hold a fellow-man in bondage.
The Methodists, numerous, earnest, and faithful,
never ceased by their preachers to proclaim the
same truth. Their rules in 1788 denounced, in
formal language, "the buying or selling bodies
and souls of men, women, and children, with an
intention to enslave them." The words of their
great apostle, John Wesley, were constantly
repeated. on the eve of the National Convention
the burning tract was circulated, in which he
exposes American slavery as the "vilest" of the
world - "such Slavery as is not found among the
Turks at Algiers;" and, after declaring "Liberty
the birthright of every human creature, of which
no human law can deprive him," he pleads, "If,
therefore, you have any regard to justice, (to
say nothing of mercy or the revealed law of
God,) render unto all their due. Give liberty to
whom liberty is due, that is, to every child of
man, to every child of man, to every partaker of
human nature." At the same time, the
Presbyterians, a powerful religious body,
inspired by the principles of John Calvin, in
more moderate language, but by the public act,
recorded their judgment, recommending "to all
the people under their care to use the most
prudent measures consistent with the interest
and the state of civil society, to procure
eventually the final abolition of Slavery in
America." The Congregationalists of New England,
also of the faith of John Calvin, and with the
hatred of Slavery belonging to the great
nonconformist, Richard Baxter, were sternly
united against this wrong. As early as 1776,
Samuel Hopkins, their eminent leader and divine,
published his tract, showing it to be the Duty
and Interest of the American States to
Emancipate all their African slaves, and
declaring that "Slavery is in every instance
wrong, unrighteous, and oppressive - a very
great and crying sin - there being nothing of
the kind equal to it on the face of the earth."
And, in 1791, shortly after the adoption of the
Constitution, the second Jonathan Edwards, a
twice-honored name, in an elaborate discourse
often published, called upon his country, "in
the present blaze of light" on the injustice of
slavery, to prepare the way for "its total
abolition." This he gladly thought at hand. "If
we judge of the future by the past," said the
celebrated preacher, "within fifty years from
this time, it will be as shameful for a man to
hold a negro slave, as to be guilty of common
robbery or theft."
Thus, at this time, the Church, in harmony with
the Nation, by its leading denominations,
Quakers, Methodists, Presbyterians, and
Congregationalists, thundered against Slavery.
The Colleges were in unison with the Church.
Harvard University spoke by the voice of
Massachusetts, which had already abolished
Slavery. Dartmouth College, by one of its
learned Professors, claimed for the slaves
"equal privileges with the whites." Yale
College, by its President, the eminent divine,
Ezra Stiles, became the head of the Abolition
Society of Connecticut. And the University of
William and Mary, in Virginia, testified its
sympathy with this cause at this very time, by
conferring upon Granville Sharpe, the
acknowledged chief of British Abolitionists, the
honorary degree of Doctor of Laws.
The Literature of the land, such as then
existed, agreed with the Nation, the Church and
the College. Franklin, in the last literary
labor of his life; Jefferson, in his Notes on
Virginia; Barlow, in his measured verse; Rush,
in a work which inspired the praise of Clarkson;
the ingenious author of the Algerine Captive -
the earliest American novel, and though now but
little known, one of the earliest American books
published in London - were all moved by the
contemplation of Slavery. "If out
fellow-citizens of the Southern States are deaf
to the pleadings of nature," the latter exclaims
in his work, "I will conjure them, for the sake
of consistency, to cease to deprive their
fellow-creatures of freedom, which their
writers, their orators, representatives, and
senators, and even their Constitution of
Government have declared to be the inalienable
birthright of man." A female writer and poet,
earliest in our country among the graceful
throng, Sarah Wentworth Morton, at the very
period of the National Convention admired by the
polite society in which she lived, poured forth
her sympathies also. The generous labors of John
Jay in behalf of the crushed African inspired
her muse; and, in another poem, commemorating a
slave, who fell while vindicating his Freedom,
she rendered a truthful homage to his
inalienable rights, in words which I now quote
as part of the testimony of the times:
Does not the voice of reason cry,
"Claim the first night that Nature gave;
From the red scourge of bondage fly,
Nor deign to live a burdened slave?"
[Sarah Wentworth Morton "The African Chief"
(v13-16)]
Such, sir, at the adoption of the Constitution
and at the first organization of the National
Government, was the outspoken, unequivocal heart
of the country. Slavery was abhorred. Like the
slave trade, it was regarded as temporary; and,
by many, it was supposed that they would both
disappear together. As the oracles ceased or
grew mute at the coming of Christ, and a voice
was heard, crying to mariners at sea, "Great Pan
is dead," so at this time Slavery became dumb,
and its death seemed to be near. Voices of
Freedom filled the air. The patriot, the
Christian, the scholar, the writer, the poet,
vied in loyalty to this cause. All were
Abolitionists.
Glance now at the earliest Congress under the
Constitution. From various quarters memorials
were presented to this body against Slavery.
Among these was one form the Abolition Society
of Virginia, wherein Slavery is pronounced "not
only an odious degradation, but an outrageous
violation of one of the most essential rights of
human nature, and utterly repugnant to the
precepts of the Gospel." Still another, of a
more important character, came from the
Abolition Society of Pennsylvania, and was
signed by Benjamin Franklin, as President. This
venerable man, whose active life had been
devoted to the welfare of mankind at home and
abroad - who, both as philosopher and statesman,
had arrested the admiration of the world - who
had ravished the lightning from the skies and
the scepter from a tyrant - who, as a member of
the Continental Congress, had set his name to
the Declaration of Independence, and, as a
member of the National Convention, had again set
his name to the Constitution - in whom more,
perhaps, than in any other person, was embodied
the true spirit of American institutions, at
once practical and humane - than whom no one
could be more familiar with the purposes and
aspirations of the founders - this veteran,
eighty-four years of age, within a few months of
his death, now appeared by petition at the bar
of that Congress, whose powers he had helped to
define and establish. This was the last
political act of his long life. Listen to the
prayer of Franklin.
"Your memorialists, particularly engaged in
attending to the distresses arising from
Slavery, believe it to be their indispensable
duty to present this subject to your notice.
They have observed with real satisfaction that
many important and salutary powers are vested in
you for promoting the welfare and securing the
blessings of liberty to the people of the United
States; and as they conceive that these
blessings ought rightfully to be administered,
without distinction of color to all descriptions
of people, so they indulge themselves in
pleasing expectation, that nothing which can be
done for the relief of the unhappy objects of
their care, will be either omitted or delayed"
"Under these impressions, they earnestly entreat
your serious attention to the subject of
Slavery; that you would be pleased to
countenance the restoration of liberty to those
unhappy men, who alone, in this land of Freedom,
are degraded into perpetual bondage, and who,
amidst the general joy surrounding the freemen,
are groaning in servile subjection; that you
will promote mercy and justice towards this
distressed race, and that you will step to the
verge of the power vested in you for
DISCOURAGING every species of traffic in the
persons of our fellow men."
Important words! in themselves a key-note of the
times. From his grave Franklin seems still to
call upon Congress to step to the very verge of
the powers vested in it to discourage Slavery;
and, in making this prayer, he proclaims the
true national policy of the Fathers. Not
encouragement but discouragement of Slavery was
their rule.
Sir, enough has been said to show the sentiment
which, like a vital air, surrounded the National
Government as it stepped into being. in the face
of this history, and in the absence of any
positive sanction, it is absurd to suppose that
Slavery, which under the Confederation was
merely sectional, was now constituted a national
institution. Our fathers did not say with the
apostate angel, "Evil be thou my good!" In a
different spirit they cried out to Slavery, "Get
thee behind me, Satan!"
But there is yet another link in the argument.
In the discussions which took place in the local
conventions on the adoption of the Constitution,
a sensitive desire was manifested to surround
all persons under the Constitution with
additional safeguards. Fears were expressed,
from the supposed indefiniteness of some of the
powers conceded to the National Government, and
also from the absence of a Bill of Rights.
Massachusetts, on ratifying the Constitution,
proposed a series of amendments, at the head of
which was this, characterized by Samuel Adams,
in the Convention, as "A summary of a Bill of
Rights:"
"That it be explicitly declared, that all powers
not expressly delegated by the aforesaid
Constitution are reserved to the several States,
to be by them exercised."
Virginia, South Carolina, and North Carolina,
with minorities in Pennsylvania and Maryland,
united in this proposition. In pursuance of
these recommendations, the first Congress
presented for adoption the following article,
which, being ratified by a proper number of
States, became part of the Constitution, as the
10th amendment:
"The powers not delegated to the United States
by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively,
or to the people."
Stronger words could not be employed to limit
the power under the Constitution, and to protect
the people from all assumptions of the National
Government, particularly in derogation of
Freedom. its guardian character commended it to
the sagacious mind of Jefferson, who said: "I
consider the foundation corner-stone of the
Constitution of the United States to be laid
upon the tenth article of the amendment." And
Samuel Adams, ever watchful for Freedom, said:
"It removed a doubt which many have entertained
respecting the matter, gives assurance that, if
any law made by the Federal Government shall be
extended beyond the power granted by the
Constitution, and inconsistent with the
Constitution of this State, it will be an error,
and adjudged by the courts of law to be void."
Beyond all question, the National Government,
ordained by the Constitution, is not general or
universal; but special and particular. It is a
Government of limited powers. It has no power
which is not delegated. Especially is this clear
with regard to an institution like Slavery. The
Constitution contains no power to make a King or
to support kingly rule. With similar reason it
may be said, that it contains no power to make a
slave or to support a system of Slavery. The
absence of all such power is hardly more clear
in one case than in the other. But if there be
no such power, all national legislation
upholding Slavery must be unconstitutional and
void. The stream cannot be higher than the
fountain-head. Nay more, nothing can come out of
nothing; the stream cannot exist, if there be no
springs from which it is fed.
At the risk of repetition, but for the sake of
clearness, review now this argument, and gather
it together. Considering that Slavery is of such
an offensive character that it can find sanction
only in "positive law," and that it has no such
"positive" sanction in the Constitution; that
the Constitution, according to its Preamble, was
ordained "to establish justice" and "secure the
blessings of liberty;" that, in the Convention
which framed it, and also elsewhere at the time,
it was declared not to sanction Slavery; that,
according to the Declaration of Independence and
the Address of the Continental Congress, the
Nation was dedicated to "liberty" and the
"rights of human nature;" that, according to the
principles of the common law, the Constitution
must be interpreted openly, actively, and
perpetually, for Freedom; that, according to the
decision of the Supreme Court, it acts upon
slaves, not as property, but as persons; that,
at the first organization of the National
Government under Washington, Slavery had not
national favor, existed nowhere on the national
territory beneath the national flag, but was
openly condemned by the Nation, the Church, the
Colleges, and Literature of the time; and,
finally, that according to an Amendment of the
Constitution, the National Government can only
exercise powers delegated to it, among which
there is none to support Slavery; considering
these things, sir, it is impossible to avoid the
single conclusion that Slavery is in no respect
a national institution, and that the
Constitution nowhere upholds property in man.
But there is one other special provision of the
Constitution, which I have reserved to this
stage, not so much from its superior importance,
but because it may fitly stand by itself. This
alone, if practically applied, would carry
Freedom to all within its influence. It is an
amendment proposed by the first Congress, as
follows:
"No person shall be deprived of life, liberty,
or property, without due process of law."
Under this aegis the liberty of every person
within the national jurisdiction is
unequivocally placed. I say every person. Of
this there can be no question. The word "person"
in the Constitution embraces every human being
within its sphere, whether Caucasian, Indian, or
African, from the President to the slave. Show
me a person, no matter what his condition, or
race, or color, within the national
jurisdiction, and I confidently claim for him
this protection. The natural meaning of the
clause is clear, but a single fact of its
history places it in the broad light of noon. As
originally recommended by North Carolina and
Virginia, it was restrained to the freeman. Its
language was, "No freeman ought to be deprived
of his life, liberty, or property, but by the
law of the land." In rejecting this limitation,
the authors of the amendment revealed their
purpose, that no person, under the National
Government, of whatever character, shall be
deprived of liberty without due process of law;
that is, without due presentment, indictment, or
other judicial proceedings. Here by this
Amendment is an express guaranty of a Personal
Liberty, and an express prohibition against its
invasion anywhere, at least within the national
jurisdiction.
Sir, apply these principles, and Slavery will
again be as when Washington took his first oath
as President. The Union Flag of the Republic
will become once more the flag of Freedom, and
at all points within the national jurisdiction
will refuse to cover a slave. Beneath its
beneficent folds, wherever it is carried, on
land or sea, Slavery will disappear, like
darkness under the arrows of the ascending sun -
like the Spirit of Evil before the Angel of the
Lord.
In all national territories Slavery will be
impossible. On the high seas, under the national
flag, Slavery will be impossible. In the
District of Columbia Slavery will instantly
cease. Inspired by these principles, Congress
can give no sanction to Slavery by the admission
of new Slave States. Nowhere under the
Constitution, can the Nation, by legislation or
otherwise, support Slavery, hunt slaves, or hold
property in man.
Such, sir, are my sincere convictions. According
to the Constitution, as I understand it, in the
light of the Past and of its true principles,
there is no other conclusion which is rational
or tenable; which does not defy the
authoritative rules of interpretation; which
does not falsify indisputable facts of history;
which does not affront the public opinion in
which it had its birth; and which does not
dishonor the memory of the Fathers. And yet
these convictions are now placed under formal
ban by politicians of the hour. The generous
sentiments which filled the early patriots, and
which impressed upon the Government they
founded, as upon the coin they circulated, the
image and superscription of Liberty, have lost
their power. The slave-masters, few in number,
amounting to about 300,00, according the recent
census, have succeeded in dictating the policy
of the National Government, and have written
Slavery on its front. And now an arrogant and
unrelenting ostracism is applied, not only to
all who express themselves against Slavery, but
to every man who is unwilling to be the menial
of Slavery. A novel test for office is
introduced, which would have excluded all the
Fathers of the Republic - even Washington,
Jefferson, and Franklin! Yes, sir. Startling it
may be, but indisputable. Could these revered
demigods of history once again descend upon
earth, and mingle in our affairs, not one of
them could receive a nomination from the
National Convention of either of the two old
political parties! Out of the convictions of
their hearts and the utterances of their lips
against Slavery they would be condemned.
This single fact reveals the extent to which the
National Government has departed from its true
course and its great examples. For myself, I
know no better aim under the Constitution, than
to bring the Government back to the precise
position on this question which it occupied on
the auspicious morning of its organization under
Washington;
"Cursus iterare relictos"
that the sentiments of the Fathers may again
prevail with our rulers, and that the National
Flag may nowhere shelter Slavery.
To such as count this aspiration unreasonable,
let me commend a renowned and life-giving
precedent of English history. As early as the
days of Queen Elizabeth, a courtier had boasted
that the air of England was too pure for a slave
to breathe, and the common law was said to
forbid Slavery. And yet in the face of this
vaunt, kindred to that of our Fathers, and so
truly honorable, slaves were introduced from the
West Indies. The custom of slavery gradually
prevailed. Its positive legality was affirmed,
in professional opinions, by two eminent
lawyers, Talbot and Yorke, each afterwards Lord
Chancellor. It was also affirmed on the bench by
the latter as Lord Hardwicke. England was
already a Slave State. The following
advertisement, copied from a London newspaper,
the Public Advertiser, of Nov. 22d, 1769, shows
that the journals there were disfigured as some
of ours, even in the District of Columbia:
"To be sold, a black girl, the property of J.B.,
eleven years of age, who is extremely handy,
works at her needle tolerably, and speaks
English perfectly well; is of an excellent
temper and willing disposition. Enquire of her
Owner at the Angel Inn, behind St. Clement's
Church, in the Strand."
At last, only three years after this
advertisement, in 1772, the single question of
the legality of Slavery was presented to Lord
Mansfield, on a writ of Habeas Corpus. A poor
negro named Somersett, brought to England as a
slave, became ill, and with an inhumanity
disgraceful even to Slavery, was turned adrift
upon the world. Through the charity of an
estimable man, the eminent Abolitionist,
Granville Sharpe, he was restored to health,
when his unfeeling and avaricious master again
claimed him as a bondman. The claim was
repelled. After an elaborate and protracted
discussion in Westminster Hall, marked by rare
learning and ability, Lord Mansfield, with
discreditable reluctance, sullying his great
judicial name, but in trembling obedience to the
genius of the British Constitution, pronounced a
decree which made the early boast a practical
verity, and rendered Slavery forever impossible
in England. More than fifteen thousand persons,
at that time held as slaves in English air -
four times as many as are now found in this
District - stepped forth in the happiness and
dignity of freemen.
With this guiding example let us not despair.
The time will yet come when the boast of our
Fathers will be made a practical verity also,
and Court or Congress, in the spirit of this
British judgment, will proudly declare that
nowhere under the Constitution can man hold
property in man. For the Republic such a decree
will be the way of peace and safety. As Slavery
is banished from the national jurisdiction, it
will cease to vex our national politics. It may
linger in the States as a local institution; but
it will no longer engender national animosities,
when it no longer demands national support.
II. From this general review of the relations of
the National Government to Slavery, I pass to
the consideration of the true nature of the
provision for the surrender of fugitives from
labor, embracing an examination of this
provision in the Constitution, and especially of
the recent act of Congress in pursuance thereof.
And here, as I begin this discussion, let me
bespeak anew your candor. Not in prejudice, but
in the light of history and of reason, let us
consider this subject. The way will then be easy
and the conclusion certain.
Much error arises from the exaggerated
importance now attached to this provision, and
from the assumptions with regard to its origin
and primitive character. It is often asserted
that it was suggested by some special
difficulty, which had become practically and
extensively felt, anterior to the Constitution.
But this is one of the myths or fables with
which the supporters of Slavery have surrounded
their false god. In the Articles of
Confederation, while provision is made for the
surrender of fugitive criminals, nothing is said
of fugitive slaves or criminals; and there is no
evidence in any quarter, until after the
National Convention, of any hardship or
solicitude on this account. No previous voice
was heard to express desire for any provision on
the subject. The story to the contrary is a
modern fiction.
I put aside as equally fabulous the common
saying that this provision was one of the
original compromises of the Constitution, and an
essential condition of Union. Though sanctioned
by eminent judicial opinions, it will be found
that this statement has been hastily made,
without any support in the records of the
Convention, the only authentic evidence of the
compromises; nor will it be easy to find any
authority for it in any contemporary document,
speech, published letter or pamphlet of any
kind. It is true that there were compromises at
the formation of the Constitution, which were
the subject of anxious debate; but this was not
of them.
There was a compromise between the small and
large States, by which equality was secured to
all the States in the Senate. There was another
compromise finally carried, under threats from
the South, on the motion of a New England
member, by which the Slave States were allowed
Representatives according to the whole number of
free persons, and "three-fifths of all other
persons," thus securing political power on
account of their slaves, in consideration that
direct taxes should be apportioned in the same
way. Direct taxes have been imposed at only four
brief intervals. The political power has been
constant, and, at this moment, sends twenty-one
members to the other House.
There was a third compromise, which cannot be
mentioned without shame. It was that hateful
bargain by which Congress was strained until
1808 from the prohibition of the foreign slave
trade, thus securing, down to that period,
tolerance for crime. This was pertinaciously
pressed by the South, even to the extent of an
absolute restraint on Congress. John Rutledge
said: "If the Convention thinks North Carolina,
South Carolina, and Georgia, will ever agree to
this plan [the Federal Constitution] unless
their right to import slaves be untouched, the
expectation is vain. The people of those States
will never be such fools as to give up so
important an interest." Charles Pinckney said:
"South Carolina can never receive the plan [of
the Constitution] if it prohibits the slave
trade." Charles Cotesworth "thought himself
bound to declare candidly that he did not think
South Carolina would stop her importation of
slaves in any short time." The effrontery of the
slave-holders was matched by the sordidness of
the Eastern members, who yielded again. Luther
Martin, the eminent member of the Convention, in
his contemporary address to the Legislature of
Maryland, has described the compromise. "I
found," he says, "that the Eastern members,
notwithstanding their aversion to slavery, were
very willing to indulge the Southern States, at
least with a temporary liberty to prosecute the
slave trade, provided the Southern States would
in their turn gratify them, by laying no
restriction on navigation acts." The bargain was
struck, and at this price the Southern States
gained the detestable indulgence. At a
subsequent day, Congress branded the slave trade
as piracy, and thus, by solemn legislative act,
adjudged this compromise to be felonious and
wicked.
Such are the three chief original compromises of
the Constitution and essential conditions of
Union. The case of fugitives from labor is not
of these. During the Convention, it was not in
any way associated with these. Nor is there any
evidence, from the records of this body, that
the provision on this subject was regarded with
any peculiar interest. As its absence from the
Articles of Confederation had not bee the
occasion of solicitude or desire, anterior to
the National Convention, so it did not enter
into any of the original plans of the
Constitution. It was introduced at a late period
of the Convention, and with very little and most
casual discussion adopted. A few facts will show
how unfounded are the recent assumptions.
The National Convention was convoked to meet at
Philadelphia on the second Monday in May, 1787.
Several members appeared at this time; but a
majority of the States not being represented,
those present adjourned from day to day until
the 25th, when the Convention was organized by
the choice of George Washington, as President.
On the 28th, a few brief rules and orders were
adopted. On the next day they commenced their
great work.
On this day Edmund Randolph, of slaveholding
Virginia, laid before the Convention a series of
sixteen resolutions, containing his plan for the
establishment of a new National Government. Here
was no allusion to fugitive slaves.
On the same days, Charles Pinckney, of
slaveholding South Carolina, laid before the
Convention what is called "A draft of a Federal
Government, to be agreed upon between the free
and independent States of America," an elaborate
paper, marked by considerable minuteness of
detail. Here are provisions, borrowed from the
Articles of Confederation, securing to citizens
of each State equal privileges in the several
States; giving faith to the public records of
the States; and ordaining the surrender of
fugitives from justice. But this draft, though
from the flaming guardian of the slave-interest,
contained no allusion to fugitive slaves.
In the course of the Convention other plans were
brought forward; on the 15th of June a series of
eleven propositions by Mr. Patterson, of New
Jersey, "so as to render the Federal
Constitution adequate to the exigencies of
Government, and the preservation of the Union;"
on the 18th of June, eleven propositions by Mr.
Hamilton, of New York, "containing his ideas of
a suitable plan of Government for the United
States;" and on the 19th June, Mr. Randolph's
resolutions, originally offered on the 29th May,
"as altered, amended, and agreed to in Committee
of the Whole House." On the 26th, twenty-three
resolutions, already adopted on different days
in the Convention, were referred to a "Committee
of Detail," to be reduced to the form of a
Constitution. On the 6th August this committee
reported the finished draft of a Constitution.
And yet in all these resolutions, plans, and
drafts, seven in number, proceeding from eminent
members and from able committees, no allusion
was made to fugitive slaves. For three months
the Convention was in session, and not a word
uttered on this subject.
At last, on the 28th August, as the Convention
was drawing to a close, on the consideration of
the article providing for the privileges of
citizens in different States, we meet the first
reference to this matter, in words worthy of
note: "Gen. [Charles Cotesworth] Pinckney was
not satisfied with it. He SEEMED to wish some
provision should be included in favor of
property in slaves." But he made no proposition.
Unwilling to shock the Convention, and uncertain
in his own mind, he only seemed to wish such a
provision. In this vague expression of a vague
desire this idea first appeared. In this modest,
hesitating phrase is the germ of the audacious,
unhesitating Slave Act. here is the little
vapor, which has since swollen, as in the
Arabian tale, to the power and dimensions of a
giant. 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 to
require "fugitive slaves and servants to be
delivered up like criminals." Here was no
disguise. With Hamlet it was now said in spirit
-
"Seems, madam, nay it is; I know not seems."
But the very boldness of the effort drew
attention and opposition. Mr. Wilson, of
Pennsylvania, at once objected: "This would
oblige the Executive of the State to do it at
the public expense." Mr. Sherman, of
Connecticut, "saw no more propriety in the
public seizing and surrendering a slave or
servant, than a horse." Under the pressure of
these objections, the offensive proposition was
quietly withdrawn. The article for the surrender
of criminals was then adopted. On the next day,
August 29th, profiting by the suggestions
already made, Mr. Butler moved a proposition -
substantially like that now found in the
Constitution - not directly for the surrender of
"fugitive slaves," as originally proposed, but
of "fugitives from service or labor," which,
without debate or opposition of any kind, was
unanimously adopted.
The provision, which showed itself thus tardily,
and was so slightly noticed in the National
Convention, was neglected in much of the
contemporaneous discussions before the people.
In the Conventions of South Carolina, North
Carolina, and Virginia, it was commended as
securing important rights, though on this point
there was a difference of opinion. In the
Virginia Convention, an eminent character, Mr.
George Mason, with others, expressly declared
that there was "no security of property coming
within this section." In the other Convention it
was disregarded. Massachusetts, while exhibiting
peculiar sensitiveness at any responsibility for
Slavery, seemed to view it with unconcern
Federalist, (No. 42,) in its classification of
the powers of Congress, describes and groups a
large number as those "which provide for the
harmony and proper intercourse among the
States," and therein speaks of the power over
public records, standing next in the
Constitution to the provision on fugitives from
labor; but it fails to recognize the latter
among the means of promoting that "harmony and
proper intercourse;" nor does it anywhere allude
to the provision.
The indifference which had thus far attended
this subject, still continued. The earliest act
of Congress, passed in 1793, drew little
attention. It was not originally suggested by
any difficulty or anxiety, touching fugitives
from labor; nor is there any record of the
times, in debate or otherwise, showing that any
special importance was attached to its
provisions in this regard. The attention of
Congress had been directed to fugitives from
justice, and, with little deliberation, it
undertook, in the same bill, to provide for both
classes of cases. In this accidental manner was
legislation on this subject first attempted.
There is no evidence that fugitives were often
seized under this act. From a competent inquirer
we learn that twenty-six years elapsed before a
single slave was surrendered under it in any
Free State. It is certain that, in a case at
Boston, towards the close of the last century,
illustrated by Josiah Quincy as counsel, the
crowd about the magistrate, at the examination,
quietly and spontaneously opened a way for the
fugitive, and thus the Act failed to be
executed. It is also certain that in Vermont, at
the beginning of the century, a Judge of the
Supreme Court of this 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. But even these cases passed
without public comment.
In 1801, the subject was introduced in the House
of Representatives, by an effort for another
Act, which, on consideration, was rejected. At a
later day, in 1817-'18, though still disregarded
by the country, it seemed to excite a
short-lived interest in Congress. A bill to
provide more effectually "for reclaiming
servants and slaves, escaping from one State
into another," was introduced into the House of
Representatives by Mr. Pindall, of Virginia, who
considered for several days in Committee of the
Whole, amended and passed by this body. In the
Senate, after much attention and warm debate, it
was also passed with amendments. But on its
return to the House for the adoption of the
amendments, it was dropped. This effort, which,
in the discussions of this subject, has thus far
been unnoticed, is chiefly remarkable as the
earliest recorded evidence of the unwarrantable
assertion, now so common, that this provision
was originally of vital importance to the peace.
At last, in 1850, we have another Act, passed by
both House of Congress, and approved by the
President, familiarly known as the Fugitive
Slave Bill. As I read this statute, I am filled
with painful emotions. The masterly subtlety
with which is drawn, might challenge admiration,
if exerted for a benevolent purpose; but in the
age of sensibility and refinement, a machine of
torture, however skilful and apt, cannot be
regarded without horror. Sir, in the name of the
Constitution which it violates; of my country
which it dishonors; of Humanity which it
degrades; of Christianity which it offends; I
arraign this enactment, and now hold it up to
the judgment of the Senate and the world. Again,
I shrink from no responsibility. I may seem to
stand alone; but all the patriots and martyrs of
history, all the Fathers of the Republic, are
with me. Sir, there is no attribute of God which
does not unite against this Act.
But I am to regard it now chiefly as an
infringement of the Constitution. And here its
outrages, flagrant as manifold, assume the
deepest dye and broadest character only when we
consider that by its language it is not
restrained to any special race or class, to the
African or to the person with African blood; but
that any inhabitant of the United States, of
whatever complexion or condition, may be its
victim. Without discrimination of color even,
and in violation of every presumption of
freedom, the Act surrenders all, who may be
claimed as "owing service or labor" to the same
tyrannical proceedings. If there be any, whose
sympathies are not moved for the slave, who do
not cherish the rights of the humble African,
struggling for divine Freedom, as warmly as the
rights of the white man, let him consider well
that the rights of all are equally assailed.
"Nephew," said Algernon Sidney in prison, on the
night before his execution, "I value not my own
life a chip; but what concerns me is, that the
law which takes away my life may hang every one
of you, whenever it is thought convenient."
Though thus comprehensive in its provisions and
applicable to all, there is no safeguard of
Human Freedom which the monster Act does not set
at naught.
It commits this great question - than which none
is more sacred in the law - not to a solemn
trial; but to summary proceedings.
It commits this question - not to one of the
high tribunals of the land - but to the unaided
judgment of a single petty magistrate.
It commits this question to a magistrate,
appointed, not by the President with the consent
of the Senate, but by the Court; holding his
office, not during good behavior, but merely
during the will of the Court; and receiving, not
a regular salary, but fees according to each
case.
It authorizes judgment on ex parte evidence, by
affidavits, without the sanction of
cross-examination.
It denies the writ of Habeas Corpus, ever known
as the Palladium of the citizen. Contrary to the
declared purposes of the framers of the
Constitution, it sends the fugitive back "at the
public expense."
Adding meanness to the violation of the
Constitution, it bribes the Commissioner by a
double stipend to pronounce against Freedom. If
he dooms a man to Slavery, the reward is ten
dollars; but, saving him to Freedom, his dole is
five dollars.
The Constitution expressly secures the "free
exercise of religion;" but this Act visits with
unrelenting penalties the faithful men and
women, who may render to the fugitive that
countenance, succor, and shelter, which in their
conscience "religion" seems to require.
As it is for the public weal that there should
be an end of suits, so by the consent of
civilized nations, these must be instituted
within fixed limitations of time; but this Act,
exalting Slavery above even this practical
principle of universal justice, ordains
proceedings against Freedom without any
reference to the lapse of time.
Glancing only at these points, and not stopping
for argument, vindication, or illustration, I
come at once upon the two chief radical
objections to this Act, identical in principle
with those brought by our fathers against the
British Stamp Act; first, that it is an
usurpation by Congress of powers not granted by
the Constitution, and an infraction of rights
secured to the States; and, secondly, that it
takes away Trial by Jury in a question of
Personal Liberty and a suit at common law.
Either of these objections, if sustained,
strikes at the very root of the Act. That it is
obnoxious to both, seems beyond doubt.
But here, at this stage, I encounter the
difficulty, that these objections have been
already foreclosed by the legislation of
Congress and by the decisions of the Supreme
Court; that as early as 1793 Congress assumed
power over this subject by an Act, which failed
to secure Trial by Jury, and that the validity
of this Act under the Constitution has been
affirmed by the Supreme Court. On examination
this difficulty will disappear.
The Act of 1793 proceeded from a Congress that
had already recognized the United States Bank,
chartered by a previous Congress, which, though
sanctioned by the Supreme Court, has since in
high quarters pronounced unconstitutional. If it
erred as to the Bank, it may have erred also as
to fugitives from labor. But the very Act
contains a capital error on this very subject,
so declared by the Supreme Court, in pretending
to vest a portion of the judicial power of the
Nation in State officers. This error takes from
the Act all authority as an interpretation of
the Constitution. I dismiss it.