There is, first, the Senator from Ohio [Mr. Sherman], who intervened to arrest the generous purpose of the Senate, as it was about to vote, by a motion to preserve the old Act of 1793. Strange that now, while we are in deadly conflict with Slavery, it should be proposed to keep alive an ancient support of Slavery. For the Senator gravely insists, and the Senator from Maryland [Mr. Reverdy Johnson] insists with him. But the Senator from Ohio does not seem aware of the character of the statute he would preserve. Let me remind him that by this enactment, towards which he is so tender, a fellow-man may be hurried before a magistrate and doomed to Slavery without trial by jury. Can this be constitutional? Will the Senator sanction such a thing?
Then the other Senator, who is so familiar with our jurisprudence, takes exception to the statement that Mr. Justice Story admitted that the constitutionality of the Act of 1793 had never been affirmed by the Supreme Court. He thinks that this learned judge never made any such statement. But he is mistaken. Here is a volume containing the Life and Letters of Joseph Story, carefully prepared and published by his son. I turn to the passage.
“One prevailing opinion, which has created great prejudice against this judgment, is, that it denies the right of a person claimed as a fugitive from service or labor to a trial by jury. This mistake arises from supposing the case to involve the general question as to the constitutionality of the Act of 1793. But in fact no such question was in the case, and the argument that the Act of 1793 was unconstitutional, because it did not provide for a trial by jury according to the requisitions of the sixth [seventh] article in the Amendments to the Constitution, having been suggested to my father, on his return from Washington, he replied, that this question was not argued by counsel nor considered by the Court, and that he should still consider it an open one.”[328]
Evidently, according to this authentic record by his son, the necessity of a trial by jury was not argued by counsel nor considered by the Court, while the judge for himself declared that he should consider it an “open” question; so that the constitutionality of the Act in this important respect has not been affirmed. But the Senate is now asked to affirm it. We are asked to vote that a fellow-man be handed over to Slavery without trial by jury. To me this proposition is hateful beyond the power of words to express.
But the Senator, not content with affirming the constitutionality of the Act of 1793, has plunged into a general discussion on the fugitive clause of the Constitution. He insists laboriously that it was intended to cover fugitive slaves. When I reminded him that its authors might have intended it to cover fugitive slaves, without succeeding in their attempt, he still insists that it does cover fugitive slaves. Well, Sir, there I meet him point-blank. I insist, that, whatever the original intention of the framers of that clause, they did not leave it so as to cover fugitive slaves. It remains a question of construction, and the language employed is not applicable to fugitive slaves. It does not describe them, and cannot by any just tribunal be extended to embrace them. If the prepossessions of the Senator were more evenly balanced, I should not doubt his judgment on this point, which in the light of jurisprudence is so clear.
There is a rule of interpretation which the Senator will not call in question. Where any language is open to two constructions, one beneficent and the other odious, that which is odious must be rejected. I do not stop to adduce authorities. The rule is unquestionable, and the authorities are ample. But keep in mind the conclusion: that which is odious must be rejected. Now the Senator has already admitted that the language of the clause is applicable to apprentices. Very well. That is enough. In its application to apprentices, redemptioners, and the like, it is exhausted, so that it cannot be made to cover a slave without offending against the rule requiring us to adopt the construction least odious. And, Sir, if we go further and closely scan the clause, we find that the words employed are all applicable to a relation of contract or debt, and not to a relation founded on force. The clause is applicable to a “person,” and not to a thing, and this “person” is to be surrendered on claim of the person to whom his service or labor may be due. But, clearly, no labor or service can be due from slave to master. The whole pretension is an absurdity. And if you give to this word its legitimate application, you must restrict it to a case of contract or debt. In this reply I omit the argument founded on history, and the well-known opinions of leading minds in the Convention, confining myself to the text of the Constitution.
But the Senator dwells especially on the words “held to service or labor in one State under the laws thereof,” and triumphantly declares that slaves were included under this language. Here again he is mistaken. Apprentices and redemptioners were held under “laws”; but I need not remind the Senator of the admission repeatedly made on this floor by Mr. Mason, author of the last Fugitive Slave Act, that there were no “laws” for Slavery in any Slave State,—at least, that none could be produced. Besides, as a jurist, the Senator surely will recollect the ancient truth, that injustice cannot be “law,” but is always to be regarded as an “abuse” or a “violence,” even though expressed in the form of “law.” In presence of this principle, which has the sanction of as great a lawyer as St. Augustine, and in the face of the positive assertion of Mr. Mason, that no “law” for Slavery can be found in the Slave States, what becomes of the argument of the Senator? Sir, the case is clear. No ingenuity of honest effort can ever make the words cited by the Senator, or any other words in that much debated clause, sanction Slavery and the hunting of slaves. To proceed with his argument, the Senator must begin by setting aside those commanding rules of interpretation which are binding on him as on myself. If, where words are susceptible of two significations, one beneficent and the other odious, the former only can be taken, then must the Senator restrict this clause to that signification which is not odious. And again, if every word is always to be construed so as most to favor Liberty, then must the Senator follow implicitly this rule. But these two rules make it impossible to torture the clause into any odious or tyrannical signification. They keep it clean and pure from Slavery.
Sir, one feels humbled by the necessity of this discussion,—that at this late day he should be called to vindicate the Constitution of his country against glosses and interpretations in the interest of Slavery. Pardon me, if, for a moment, leaving the two Senators who seek to foist Slavery into the Constitution, I turn to the question itself, not so much for argument as for statement. If I seem to repeat, it is because there are certain points which I desire to impress upon the Senate. To my mind nothing is clearer than that, according to unquestionable rules of interpretation, the clause of the Constitution, whatever the alleged intent of its authors, cannot be considered applicable to slaves. Such is Slavery, that, from the nature of the case, it cannot be sanctioned or legalized except by “positive” words. It cannot stand on inference. This rule, which no reasoning can shake, drove Lord Mansfield to his great judgment in Somerset’s case. African Slavery had for two generations prevailed in England. Eminent lawyers and judges had pronounced it legal. Some of the brightest names in Westminster Hall had given to it the support of professional opinion and the seal of judicial decision. At last a person at that time unknown, Granville Sharp, struck by the injustice of Slavery, devoted himself to consider the grounds on which its legality was recognized. He studied the laws of England, and all the various evidences of its Constitution. In the course of these studies he was gratified to find that there was no positive establishment of African Slavery in England, and, indeed, that the words “Slave” and “Slavery” were nowhere to be found in the British Constitution. He next applied himself to the powerful array of well-known rules of interpretation, requiring, in case of doubt or question, that the interpretation should be on the side of Liberty, and especially that any man was “impious” and “cruel” who did not favor Liberty. Impiety and cruelty are not light burdens for an honest conscience. The conclusion was irresistible, that Slavery could not exist in England.
But the unanswerable argument of Granville Sharp was rejected at first by the bar, who regarded it as an attempted innovation. The direct precedents and the weight of authority were the other way, and this with most lawyers is enough. Harvey said that no person above “forty” accepted his discovery of the circulation of the blood. And Granville Sharp found himself in the same predicament. But this good man was not disheartened. He knew well that there was no statute of limitations against principles, and, better still, that principles must finally prevail over precedents. Principles are immortal, and bloom with perpetual youth: precedents are mortal, and die from age, decrepitude, and decay. Against principles precedents may for a while prevail; but the time comes when that which is mortal must yield to that which is immortal. In this conviction he persevered, until at last lawyers were convinced, and then the court pronounced in his favor.