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.
ANALYSIS OF THE WORDS OF THE FUGITIVE CLAUSE.
Looking more minutely at the precise words of this clause, we see how completely it is stamped with equivocation from beginning to end. Every descriptive word it contains is double in signification. The clause may be seen, first, in what it does not contain; and, secondly, in what it does contain. It does not contain the word “slave” or “slavery,” which singly and exclusively denotes the idea of property in man. Had either of these fatal words been employed, there would have been no uncertainty or duplicity. But in abandoning these words, all idea of property in man was abandoned also. Other words were adopted, simply because they might mean something else, and therefore would not render the Constitution on its face “odious.” But the unquestionable fact that these words might mean something else makes it impossible for them to mean “slave” or “slavery,” unless in this behalf we set aside the most commanding rules of interpretation. It is clear that the authors of this clause attempted an impossibility. They wished to secure Slavery without plainly saying so; but such is Slavery that it cannot be secured without plainly saying so. Naturally and inevitably they failed, as if they had attempted to describe black by words which might mean white, or to authorize crime by words which naturally mean something that is not crime. The thing could not be done. The attempt to square the circle is not more absurd.
The clause begins with the descriptive words, “No person held to service or labor in one State under the laws thereof.” Now a slave is not a “person,” with the rights of persons, but a chattel or thing. Such is the received definition of the Slave States, handed down from Aristotle. He is not “held to service or labor,” but he is held as property. The terms employed describe an apprentice, but not a slave. And he must be held “under the laws” of a State. Here again is the case of an apprentice, who is clearly held “under the laws” of a State. But we have the authority of Mr. Mason, recently of the Senate from Virginia, for saying that no proof can be produced that Slavery in any State “is established by existing laws.”[325] The person thus described shall not “be discharged from such service or labor.” Clearly an apprentice is discharged, but a slave is manumitted or emancipated. This undischarged person “shall be delivered up on claim of the party to whom such service or labor may be due.” But all these words imply contract, or at least debt, as in the case of an apprentice. The slave can owe no “service or labor” to his master. There is nothing in their relations out of which any such obligation can spring. The whole condition stands on force and nothing else. It is robbery tempered by the lash,—not merely robbery of all the fruits of industry, but robbery of wife and child. To such terrible assumption the language of contract or debt is totally inapplicable. Nothing can be “due” from slave to master, unless it be that “resistance to tyrants” which is “obedience to God.” It is absurd to say that “labor or service,” in any sense, whether of justice or of law, can be “due” from the slave. The same power which takes wife and child may exact this further sacrifice, but not because it is “due.”
Such is the simple truth touching this much debated clause. At the touchstone of unquestioned rules of interpretation its odious character disappears, and astonishment prevails that the public mind for so long a period could have been perverted with regard to its true meaning. Nobody can doubt that this clause may be interpreted in favor of Freedom, so as to exclude all idea of property in man. But if it may, then such is the voice of Freedom that it must.