Charles Sumner: his complete works, volume 10 (of 20)

by Charles Sumner

THE FUGITIVE CLAUSE IN THE CONSTITUTION, AND THE RULES FOR ITS INTERPRETATION.

These Acts profess to be founded upon certain words of the Constitution. On this account we must consider these words with a certain degree of care. They are as follows.

“No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”[315]

John Quincy Adams has already remarked that in this much debated clause the laws of grammar are violated in order to assert the claim of property in man; for the verb “shall be delivered up” has for nominative “no person,” and thus the grammatical interpretation actually forbids the rendition. It is on this jumble and muddle of words that a superstructure of wrong is built. Even bad grammar may be disregarded, especially in behalf of human rights; but it is worthy of remark, that, in this clause of the Constitution, an outrage on human rights was begun by an outrage on language.

Assuming that the clause is not invalidated by bad grammar, it is often insisted, and here the Committee concur, that, according to authoritative rules of interpretation, it cannot be considered applicable to fugitive slaves; since, whatever the intention of its authors, no words were employed positively describing fugitive slaves and nobody else. Obviously, this clause, on its face, is applicable to apprentices, and it is known historically that under it apprentices have been delivered up on the claim of the party to whom “such service or labor” was due. It is therefore only by discarding its primary signification, and adopting a secondary signification, that it can be made to embrace fugitive slaves. On any common occasion, not involving a question of human rights, such secondary signification might be supplied by intendment; but it cannot be supplied to limit or deny human rights, especially to defeat Liberty, without a violation of fundamental rules which constitute the glory of the law.

This principle is common to every system of civilized jurisprudence; but it has been nowhere expressed with more force than in the maxims of the Common Law and the decisions of its courts. It entered into the remarkable argument of Granville Sharp, which preceded the judgment extorted from Lord Mansfield, and led him to exclaim, in words strictly applicable to the Constitution of the United States, “The word slaves, or anything that can justify the enslaving of others, is not to be found, God be thanked,” in the British Constitution.[316] It entered into the judgment pronounced at last by Lord Mansfield, under the benevolent pressure of Granville Sharp, in the renowned Somerset case, where this great magistrate grandly declared that Slavery could not exist in England. His words cannot be too often quoted as an illustration of the true rule of interpretation. “The state of Slavery,” he said, “is of such a nature, that it is incapable of being introduced on any reasons moral or political, but only by positive law.… It is so odious, that nothing can be suffered to support it but positive law.”[317] Therefore the authority for Slavery cannot be derived from any words of doubtful import. Such words are not “positive.” And clearly, by the same rule, if the words are susceptible of two different significations, that must be adopted which is hostile to Slavery. This same cardinal principle, thus announced by the Chief Justice of England, has been echoed by the Chief Justice of the United States, being none other than Marshall, speaking for our own Supreme Court, when he said, “Where rights are infringed, … the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.”[318] In a clause capable of two meanings there can be no such “irresistible clearness” as would justify an infringement of human rights.

But Lord Mansfield and Chief Justice Marshall were simply giving practical application to those venerable maxims cherished in America as in England. It is not necessary to repeat them at length. They are substantially embodied in the words, Angliæ jura in omni casu Libertati dant favorem,—“The Laws of England, in every case, show favor to Liberty”; and also in those other vigorous words of Fortescue, Impius et crudelis judicandus est qui Libertati non favet,—“He is to be adjudged impious and cruel who does not favor Liberty.”[319] By such lessons have all who administer justice been warned for centuries against the sacrifice of human rights. Even Blackstone, whose personal sympathies were with power, was led to declare, in most suggestive words, worthy of a commentator on English Law, that “the law is always ready to catch at anything in favor of Liberty.”[320] And Hallam, whose instincts were always for Freedom, has adopted and vindicated this rule of interpretation as a pole-star of Constitutional Liberty. “It was,” says this great author, “by dwelling on all authorities in favor of Liberty, and by setting aside those which made against it, that our ancestors overthrew the claims of unbounded prerogative.”[321] Nor can it be doubted that this conduct helped to build those great English safeguards of Freedom which have been an example to mankind.

This rule has never received plainer illustration than in the writings of Dr. Webster, the eminent lexicographer. In a tract bearing date 1795, long before the heats engendered by the Fugitive Slave Act, he used language which, if applied to our Constitution, must defeat every interpretation favorable to Slavery. “Where there are two constructions,” he says, “the one favorable, the other odious, that which is odious is always to be rejected.”[322] This principle, thus sententiously expressed by the American lexicographer, may be found also in the judgments of courts and the writings of civilians without number. It is one of the commonplaces of interpretation. Lord Coke, our master in English law, tells us, that, where words “may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment that standeth with law shall be taken.”[323] And Vattel, a master in International Law, says that “we should particularly regard the famous distinction of things favorable and things odious,” and then he assumes that we must “consider as odious everything that in its own nature is rather hurtful than of use to the human race.”[324] But the clause of the Constitution which has been made the apology of the Fugitive Slave Act is clearly open to “two constructions,” according to the language of Dr. Webster, or “a double intendment,” according to the language of Lord Coke, or one “favorable” and the other “odious,” according to Vattel. Thus far in our history, under the malignant influence of Slavery, the odious construction or intendment has prevailed.

There is also another voice to be heard in determining the meaning of a doubtful clause. It is the Preamble, which, on the threshold, proclaims the spirit in which the Constitution was framed, and furnishes a rule of interpretation. To “establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of Liberty to ourselves and our posterity”: such are the declared objects of the Constitution, which must be kept present to the mind as we read its various provisions. And every word must be so interpreted as best to uphold these objects. The Preamble would be powerless against any “positive” sanction of Slavery by unequivocal words; but, on the other hand, any attempted sanction of Slavery by words not “positive” and not unequivocal, must be powerless against the Preamble, which, in this respect, is in harmony with the ancient maxims of the law.