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

by Charles Sumner

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 Under this proper pressure the offensive proposition was withdrawn.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.