CHAPTER XV.
Report of the Committee of Detail, continued.—Effect of Records.—Inter-State Privileges.—Fugitives from Justice and from Service.
We now come to a class of provisions designed to place the people of the separate States in more intimate relations with each other, by removing, in some degree, the consequences that would otherwise flow from their distinct and independent jurisdictions. This was to be done by causing the rights and benefits resulting from the laws of each State to be, for some purposes, respected in every other State. In other words, by the establishment and effect of certain exceptions, the general rule which absolves an independent government from any obligation to regard the law, the authority, or the policy of another government was, for some purposes, to be obviated between the States of the American Union.
To some extent, this had been attempted by the Articles of Confederation, by providing,—first, that the free inhabitants of each of the States (paupers, vagabonds, and fugitives from justice excepted) should be entitled to all privileges and immunities of free citizens in the several States; and that the people of each State should have free ingress and regress to and from any other State, and the same privileges of trade and commerce as its inhabitants;—secondly, that fugitives from justice charged with certain enumerated crimes, and escaping from one State into another, should be given up, on demand of the executive of the State from which they had escaped;—and thirdly, that full faith and credit should be given in each State to the records, acts, and judicial proceedings of the courts and magistrates of every other State.
The Confederation, however, was a "firm league of friendship with each other," entered into by separate States, and the object of the provisions above cited was "the better to secure and perpetuate mutual friendship and intercourse among the people" of those States. One of the purposes of the Constitution, on the other hand, was "to form a more perfect Union"; and we are therefore to expect to find its framers enlarging and increasing the scope of these provisions, and giving to them greater precision and vigor. We shall see, also, that they made a very important addition to their number.
The first thing that was done was to make the language of the Confederation respecting the privileges of general citizenship somewhat more precise. The Articles of Confederation had made "the free inhabitants of each State," with certain exceptions, entitled to the privileges and immunities of "free citizens in the several States."[359] It is probable that these two expressions were intended to be used in the same sense, and that by "free inhabitants" of a State was meant its "free citizens." The framers of the Constitution substituted the latter expression for the former, and thus designated more accurately the persons who are to enjoy the privileges and immunities of free citizens in other States besides their own.
In the next place, while the Articles of Confederation declared that full faith should be given in each State to the acts, records, and judicial proceedings of every other State, they neither prescribed the mode in which the proof was to be made, nor the effect when it had been made. The committee of detail, in preparing the first draft of the Constitution, merely adopted the naked declaration of the articles. The Convention added to it the further provision, which enabled Congress to prescribe by general laws the manner in which such acts, records, and proceedings shall be proved, and the effect to be given to them when proved.[360]
With respect to fugitives from justice, the Articles of Confederation had specified persons "charged with treason, felony, or other high misdemeanor in any State," as those who were to be given up by the States to each other. For the purpose of avoiding the ambiguity of this language, the provision was made to embrace all other crimes, as well as treason and felony.[361]
Besides correcting and enlarging these provisions, the framers of the Constitution introduced into the system of the Union a special feature, which, in the relations of the States to each other, was then entirely novel, although not without precedent. I refer, of course, to the clause requiring the extradition of "fugitives from service," who have escaped from one State into another.
In describing the compromises of the Constitution relating to slavery, I have not placed this provision among them, because it was not a part of the arrangement by which certain powers were conceded to the Union by one class of States, in consideration of certain concessions made by another class. It is a provision standing by itself, in respect to its origin, about which there is some popular misapprehension. Its history is as follows.
In many of the discussions that had taken place, in preparing the outline of the government that was sent to the committee of detail, a good deal of jealousy had been felt and expressed by some of the Southern members, not only with regard to the relative weight of their States in the representative system, but also with respect to the security of their slave property. Slavery, although it had existed in all of the States, and although there still remained in all of them excepting Massachusetts some persons of the African race still held in that condition, was likely soon to disappear from the States of New Hampshire, Rhode Island, Connecticut, New York, and Pennsylvania, under changes that would be introduced by their constitutions or by statutory provision. In the whole of New England, therefore, and in nearly all of the Middle States excepting Maryland, if the principles of the common law and of the law of nations were to be applied to such cases, the relation of master and slave, existing under the law of another State, could not be recognized, and there could be no means of enforcing a return to the jurisdiction which gave to the master a right to the custody and services of the slave. At the same time, it was apparent that, in the five States of Maryland, Virginia, North Carolina, South Carolina, and Georgia, slavery would not only be likely to continue for a very long period of time, but that this form of labor constituted, and would be likely long to constitute, a necessary part of their social system. The theory on which the previous Union had been framed, and on which the new Union now intended to be consummated was expressly to be founded, was, that the domestic institutions of the States were exclusively matters of State jurisdiction. But if a relation between persons, existing by the law of a particular State, was to be broken up by an escape into another State, by reason of the fact that such a relation was unknown to or prohibited by the law of the place to which the party had fled, it was obvious that this theory of the Union would be of very little practical value to the States in which such a relation was to exist, and to be one of great importance. If the territory of every State in which this relation was not to be recognized, were to be made an asylum for fugitives, the right of the master to the services of the slave would be wholly insecure.
It was in reference to this anticipated condition of things, that General Pinckney of South Carolina, at the time when the principles that were to be the basis of the Constitution were sent to the committee of detail,[362] gave notice, that, unless some provision should be inserted in their report to prevent this consequential emancipation, he should vote against the Constitution. Considering the position and influence of this gentleman, his declaration was equivalent to a notice that, without such a provision, the Constitution would not be accepted by the State which he represented. Still, the committee of detail omitted to make any such special provision in their report of a Constitution, and inserted only a general article that the citizens of each State should be entitled to all the privileges and immunities of citizens in the several States.[363] General Pinckney was not satisfied with this, and renewed his demand for a provision "in favor of property in slaves."[364] But the article was adopted, South Carolina voting against it, and the vote of Georgia being divided.
As soon, however, as the next article was taken up, which required the surrender of fugitives from justice escaping from one State into another, the South Carolina members moved to require "fugitive slaves and servants to be delivered up, like criminals."[365] Objection was made, that this would require the executive of the State to do it at the public expense,[366] and that there was no more propriety in the public seizing and surrendering a slave or a servant, than a horse.[367] The proposition was then withdrawn, in order that a particular provision might be framed, apart from the article requiring the surrender of fugitives from justice. That article was then adopted without opposition.[368]
For a provision respecting fugitives from service, the movers had two remarkable precedents to which they could resort, and which had settled the correctness of the principle involved. Negro slavery, as well as other forms of service, had existed in the New England Colonies at a very early period. In 1643, the four Colonies of Massachusetts Bay, Plymouth, Connecticut, and New Haven had formed a confederation, in which, among other things, they had mutually stipulated with each other for the restoration of runaway "servants"; and there is indubitable evidence, that African slaves, as well as other persons in servitude, were included in this provision.[369]
The other precedent was found in the Ordinance which had just been adopted by Congress for the settlement and government of the Territory northwest of the river Ohio; in which, when legislating for the perpetual exclusion of "slavery or involuntary servitude," a similar provision was made for the surrender of persons escaping into the Territory, "from whom labor or service is lawfully claimed in any one of the original States."
In making this provision, the early colonists of New England, and the Congress of the Confederation, had acted upon a principle directly opposite to the objection that was raised in the formation of the Constitution of the United States. When it was said in the Convention, that the public authority ought no more to interfere and surrender a fugitive slave or servant than a horse, it was forgotten that, by the principles of the common law and the comity of nations, not only is property in movable things recognized by civilized states, but a remedy is afforded for restitution. But in the case of a fugitive person, from whom, by the law of the community from which he escapes, service is due to another, the right to the service is not recognized by the common law or the law of nations, and no means exist of enforcing the duties of the relation. If the case is to be met at all, therefore, it can only be by a special provision, in the nature of a treaty, which will so far admit the relation and the claim of service, as to make them the foundation of a right to restore the individual to the jurisdiction of that law which recognizes and enforces its duties.
This was precisely what was done by the New England Confederation of 1643, and the Ordinance of 1787; and it was what was now proposed to be done by the Constitution of the United States. It was regarded at the time by the Southern States as absolutely necessary to secure to them their right of exclusive control over the question of emancipation,[370] and it was adopted in the Convention by unanimous consent,[371] for the express purpose of protecting a right that would otherwise have been without a satisfactory security. A proper understanding of the grounds of this somewhat peculiar provision is quite important.
The publicists of Christendom are universally agreed, that independent nations are under no positive obligation to support the institutions, or to enforce the municipal laws, of each other. So far does this negative principle extend, that the general law of nations does not even require the extradition of fugitive criminals, who have escaped from one country into another. If compacts are made for this purpose, they rest entirely upon comity, and upon those considerations of public policy which make it expedient to expel from our own borders those who have violated the great laws on which the welfare of society depends; and such compacts are usually limited to those offences which imply great moral as well as civil guilt. The general rule is, that a nation is not obliged to surrender those who have taken sanctuary in its dominions. At the same time, every political state has an undoubted right to forbid the entry into its territories of any person whose presence may injure its welfare or thwart its policy. No foreigner, whether he comes as a fugitive escaping from the violated laws of another country, or comes for the innocent purposes of travel or residence, can demand a sanctuary as a matter of right. Whether he is to remain, or not to remain, depends entirely upon the discretion of the state to which he has resorted;—a discretion that is regulated by a general principle, among Christian nations, while at the same time the general principle is subject to such exceptions as the national interest may require to be established.
Slavery, or involuntary servitude, being considered by public law as contrary to natural right, and being a relation that depends wholly on municipal law, falls entirely within the principle which relieves independent nations of the obligation to support or to enforce each other's laws. It has not, therefore, been customary for states which have no peculiar connection, to surrender fugitives from that relation, or to do anything to enforce its duties. But such fugitives stand upon a precise equality with all other strangers who seek to enter a society of which they are not members. If the welfare of the society demands their exclusion, or if it may be promoted by a stipulation that they shall be taken back to the place where their service is lawfully due, the right to exclude or to surrender them is perfect; for every political society has the moral power, and is under a moral obligation, to provide for its own welfare. If such stipulations have not usually been made among independent nations, their absence may prove that the public interest has not required them, but it does not prove the want of a right to make them.
Each of the American States, when its people adopted the national Constitution, possessed the right that belongs to every political society, of determining what persons should be permitted to enter its territories. Each of them had a complete right to judge for itself how far it would go, in recognizing or aiding the laws or institutions of the other States. It is obvious, moreover, that States which are in general independent of each other, but which propose to enter into national relations with each other under a common government, for certain great political and social ends, may have reasons for giving a particular effect to each other's laws, or for sustaining each other's institutions, which do not operate with societies not standing in such a relation; and that these reasons may be of a character so grave and important, as to amount to a moral obligation. Thus independent and disconnected nations are ordinarily under no obligation to support or guarantee each other's forms of government. But the American States, in entering into the new Union under their national Constitution, found that a republican form of government in every State was a thing so essential to the welfare and safety of all of them, as to make it both a necessity and a duty for all to guarantee that form of government to each other. In the same way, although nations in general do not recognize the relation of master and servant prevailing by the law of another country, so far as to stipulate for the surrender of persons escaping from that relation, the American States found themselves surrounded by circumstances so imperative, as to make it both a necessity and a duty to make with each other that stipulation. These circumstances I shall now briefly state.
I have already referred to all the known proceedings in the Convention on this subject, and have stated to what extent those proceedings justify the opinion that the Constitution could not have been formed without this provision.[372] But there is higher evidence both of its necessity and its propriety than anything that may have been said by individuals or delegations. The States were about to establish a more perfect Union, under a peculiar form of national government, the effect of which would necessarily bring them into closer relations with each other, multiplying greatly the means and opportunities of intercourse, and enabling them to act on each other's internal condition with an influence that would be nearly irresistible, unless it should be arrested by constitutional barriers. Among the features of their internal condition, the relation of master and servant, or the local institution of servitude, was one that must either be placed under national cognizance, or be left exclusively to the local authority of each State. There was no middle or debatable ground, which it could with safety be suffered to occupy. The African race, although scattered throughout all of the States, was placed in very different circumstances in different parts of the country. There could have been no national legislation with respect to that race, concerning the time or mode of emancipation, the tenure of the master's right, or the treatment of the slave, that would not have been forced to adapt itself to an almost endless variety of circumstances in different localities. At the same time, it was one of the fundamental principles on which the whole Constitution was proposed to be founded, that, where the national authority could not furnish a uniform rule, its legislative power was not to extend. Whatever required one rule in Massachusetts and another rule in Virginia, for the exigencies of society, was necessarily left to the separate authority of the respective States. It was upon matters on which the States could not legislate alike, but on which the national power could furnish a safe and advantageous uniform rule, that the want of a national Constitution was felt, and for these alone was its legislative power to be created.
We may suppose, then, that the framers of the Constitution had sought to bring the relation of master and servant, or the condition of the African race, within the States, under the cognizance of national legislation; and we may imagine, for the purposes of the argument, that consent had been given by every one of the States. The power must have remained dormant, or its exercise would have been positively mischievous. It never could have been exercised beneficially for either of the two races; not only because it could not have followed any uniform system, but because the confusions and jealousies which must have attended any attempt to legislate specially, must either have totally obstructed the power, or must have made its exercise absolutely pernicious. These consequences, which the least reflection will reveal, may serve to show us, far better than any declarations or debates, why the framers of the Constitution studiously avoided acquiring any power over the institution of slavery in the States;—why the representatives of one class of States could not have consented to give, and the representatives of another class could never have desired to obtain, such a power for the national Constitution.
But it may be asked,—and the question is often prompted by a feeling of pity towards individual cases of hardship,—Why did not the framers of the Constitution content themselves with the negative position, which leaves the institution of slavery to the uncontrolled direction of every State in which it is found? Why did they establish a rule that obtains nowhere else among distinct communities, and require that the fugitive from this relation of a purely local character, who has committed no crime, and has fled only to acquire a natural liberty, shall be restored to the dominion of the local law which declares him to be a slave? Why should the States which had abolished, or were about to abolish, this relation, consent to the use of force within their own territories, for the purpose of upholding the relation in other States? These questions are pertinent to the estimate which mankind may be called upon to form concerning the provisions of our national Constitution, and they admit of an answer.
The most material answer to them is, that, without some stipulation on the part of the States where slavery was not to exist that their free territory should not be made the means of a practical interference with the relation in other States, the mere concession of the abstract principle that slavery was to be exclusively under the control of State authority would have been of no real value to any one of the States, or to any of their inhabitants, of either race. But some active security for this principle was of the utmost importance, not merely as a concession which would secure the formation of the new Union, but as a means to secure the beneficent working of the Constitution after its acceptance had been obtained. It was as important to the black race as it was to the whites; for it is not to be doubted, that the continuance of a division into separate States, and the firm maintenance of an exclusive local authority over the domestic relations of their inhabitants, have been the cause, under the Divine Providence, of a far higher civilization, and consequently of a far better condition of the subjected race, than could have been attained in the same localities if the States had been in all respects resolved into one consolidated republic.
Let the reader spread before him the map of the thirteen republics of 1787, and mark upon each of them the relative numbers of their white and colored inhabitants, and then efface the boundaries of the States. Let him imagine all legislative power, all the superintending care of government, withdrawn into a central authority, whose seat must have been somewhere near the centre of the free white population. Let him observe how that population must have tended away from the regions where the labor of slaves would be most productive, and how dense the slave populations must there have become. All that now constitutes the pride of men in their separate State, that induces to residence and makes it the home of their affections, would have passed away; and at the same time, vast tracts of wonderful fertility must have retained the African, and with him scarcely any white man but the speculator, the overseer, and a solitary tradesman. Into such regions as those, the national authority could not have penetrated with success. Legislation would have wanted the necessary machinery, by which to reach and elevate the condition of society at such remote extremities from the centre. A more than Russian despotism would not have sufficed to carry the authority of government and the restraints of law into communities so depopulated of freemen, so filled with slaves, and so far removed from the seat of power.
But now let the same map be again unfolded, with all the lines that mark the distinct sovereignties of the States. In each of them there is a complete and efficient government. Each has its history, unbroken since the first settlers laid the foundations of a State. In each there is a centre of civilization, a source of law, and the public conscience of an organized self-governing community. Each of them can act, and does act, upon the condition of the African race within its own limits, according to its own judgment of the exigencies of the case; and it is a fact capable of easy verification, that, in the progress of three quarters of a century, this local power has effected for that race what no national legislature could have accomplished. For, if we look back to the period when the Constitution of the United States was adopted, and suppose it to have acquired the means of acting on the institution of slavery within the States, we shall see that, if the national authority had approached the subject of emancipation at all, it must have applied the same rule in South Carolina as in Pennsylvania, and at the same time. But the emancipation of the half a million of slaves held in widely different proportions in the various subdivisions of the country, or of their still more numerous descendants, by a single and uniform measure comprehending them all, would at no time since the Constitution was adopted have been a merciful or defensible act. Nothing could have remained, therefore, for the national power to do, but to attempt such legislation as might tend to regulate and ameliorate the condition of servitude; and such legislation must have been wholly ineffectual, and would soon have been abandoned, or been superseded by schemes that must have increased the evils which they aimed to remove.
In thus placing a high value upon the exclusive power of the separate States over this the most delicate and embarrassing of all the social problems involved in their destiny, I have not forgotten that, since the adoption of the national Constitution, nine slave States have been added to the Union, and that the slaves have increased to more than three millions. This increase, however, has not been in a greater ratio than that of the white population, nor greater than it must have been under any form of polity which the thirteen original States might have seen fit to adopt in the year 1787, unless that polity had had a direct tendency to restrain the growth of the country, and to prevent the settlement of new regions.[373] As it is, it is to be remembered that, wherever the institution of slavery has gone, there has gone with it the system of State government, the power and organization of a distinct community, and consequently a better civilization than could have been the lot of distant provinces of a great empire, or distant territories of a consolidated republic.
These considerations will account for that apparent inconsistency which has sometimes attracted the attention of those who view the institutions of the United States from a distance, and without a sufficient knowledge of the circumstances in which they originated. It has been occasionally made a matter of reproach, that a people who fought for political and personal freedom, who proclaimed in their most solemn papers the natural rights of man, and who proceeded to form a constitution of government that would best secure the blessings of liberty to themselves and their posterity, should have left in their borders certain men from whom those rights and blessings are withheld. But in truth the condition of the African slaves was neither forgotten nor disregarded by the generation who established the Constitution of the United States; and it was dealt with in the best and the only mode consistent with the facts and with their welfare. The Constitution of the United States does not purport to secure the blessings of liberty to all men within the limits of the Union, but to the people who established it, and their posterity. It could not have done more; for the slaveholding States could not, and ought not, to have entered a Union which would have conferred freedom upon men incapable of receiving it, or which would have required those States to surrender to a central and insufficient power that trust of custody and care which, in the providence of God, had been cast upon their more effectual local authority. The reproach to which they would have been justly liable would have been that which would have followed a desertion of the duty they owed to those who could not have cared for themselves, and whose fate would have been made infinitely worse by a consolidation of all government into a single community, or by an attempt to extend the principles of liberty to all men. The case is reduced, therefore, to the single question, whether the people of the United States should have foregone the blessings of a free republican government, because they were obliged by circumstances to limit the application of the maxims of liberty on which it rests. On this question, they may challenge the judgment of the world.