Слике страница
PDF
ePub

hibition on the States, conferring no power on the Nation. In its natural signification it is a compact. According to examples of other countries, and principles of jurisprudence, it is a compact. Arrangements for extradition of fugitives have been customarily compacts. Except under express obligations of treaty, no nation is bound to surrender fugitives. Especially has this been the case with fugitives for Freedom. In mediaval Europe cities refused to recognize this obligation in favor of persons even under the same National Government. In 1531, while the Netherlands and Spain were united under Charles the Fifth, the Supreme Council of Mechlin rejected an application from Spain for the surrender of a fugitive slave. By express compact alone could this be secured. But the provision of the Constitution was borrowed from the Ordinance of the Northwestern Territory, which is expressly declared to be a compact; and this Ordinance, finally drawn by Nathan Dane, was itself borrowed, in distinctive feature, from the early institutions of Massachusetts, among which, as far back as 1643, was a compact of like nature with other New England States. Thus this provision is a compact in language, in nature, in its whole history; as we have already seen, it is a compact according to the intentions of our fathers and the genius of our institutions.

1 "ART. VI. There shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid." Ordinance for the Government of the Territory Northwest of the River Ohio, July 13, 1787: Journals of Congress, Vol. XII. pp. 92, 93.

It is also agreed, that if any servant run away from his master into any of the confederate jurisdictions, that in such case (upon certificate from one magistrate in the jurisdiction out of which the said servant fled, or upon other due proof) the said servant shall be either delivered to his master or any other that pursues and brings such certificate and proof.” — Articles of Confederation between the Plantations, etc., May 29 1643: Hubbard's History of New England, p. 472.

2 668.

As a compact, its execution depends absolutely upon the States, without any intervention of the Nation. Each State, in the exercise of its own judgment, will determine for itself the precise extent of obligation assumed. As a compact in derogation of Freedom, it must be construed strictly in every respect, leaning always in favor of Freedom, and shunning any meaning, not clearly necessary, which takes away important personal rights;

indful that the parties to whom it is applicable are regarded as “persons," of course with all the rights of

persons,” under the Constitution; especially mindful of the vigorous maxim of the Common Law, early announced by Fortescue, that “he is to be adjudged impious and cruel who does not favor Liberty” 1; and also

i De Laudibus Legum Angliæ, Cap. XLII.; Coke upon Littleton, 124 b. Granville Sharp, in the remarkable testimony already cited (ante, p. 108), quotes Fortescue thus: “For in behalf of Liberty human nature always implores: because Slavery is introduced by man, and for vice; but Liberty is implanted by God in the very nature of man: wherefore, when stolen by man, it always earnestly longs to return; as does everything which is deprived of natural liberty. For which reason the man who does not favor Liberty is to be adjudged impious and cruel. The laws of England acknowledging these principles give favor to Liberty in every case.After this extract from Fortescue, we are reminded that “Slavery is properly declared by one of our oldest English authorities in law, Fleta, to be contrary to Nature (Fleta, 2d edit. p. 1), which expression of Fleta is really a maxim of the Civil or Roman Law”; and then Sharp predicts the time when “ deluded statesmen, lawyers, commercial politicians, and planters shall be compelled to understand that a more forcible expression of illegality and iniquity could not have been used than that by which Slavery is defined in the Roman code, as well as by our English Fleta, i. e. that it is contra naturam, against Nature; for, consequently, it must be utterly illegal, a crime which by the first foundation of English law is justly deemed both impious and cruel; and he adds, “The severity of these expressions cannot be restrained without injustice to the higli authorities on which this argument is founded.” (Letter to the Maryland Society for Promoting the Abolition of Slavery, etc,

Our

completely adopting, in letter and spirit, as becomes a just people, the rule of the great Commentator, that “the law is always ready to catch at anything in favor of Liberty."! With this key the true interpretation is natural and easy.

Briefly, the States are prohibited from any “law or regulation” by which any “person” escaped from “service or labor” may be discharged therefrom, and on establishment of the claim to such "service or labor" he is to be “delivered up.” But the mode by which the claim shall be tried and determined is not specified. All this is obviously within the control of each State. It may be by virtue of express legislation; in which event, any Legislature, justly careful of Personal Liberty, would surround the fugitive with every shield of Law and Constitution. But here a fact pregnant with Freedom must be studiously observed. The name Slave that litany of wrong and woe - does not appear in the clause. Here is no unambiguous phrase, incapable of a double sense, - no “positive" language, applicable only to slaves, and excluding all other classes, — no word of that absolute certainty in every particular which forbids any interpretation except that of Slavery, and makes it impossible “to catch at anything in favor of Liberty." Nothing of this kind is here. But, passing from this, “impiously and cruelly” renouncing for the moment all leanings for Freedom, -- refusing “to catch at anything pp. 6 - 8.) This testimony of the great English Abolitionist is reinforced, especially with regard to fugitive slaves, when we consider its publication in 1793 by the Abolition Society of Maryland, with the prefatory observation, that, “in the case of slaves escaping from their masters, the friends of universal liberty are often embarrassed in their conduct by a conflict between their principles and the obligations imposed by unwise and perhaps unconstitutional laws."

1 Blackstone, Commentaries, Vol. II. p. 94.

in favor of Liberty," — abandoning the cherished idea of the Fathers, that it was "wrong to admit in the Constitution the idea that there could be property in men," - and, in the face of these commanding principles, assuming two things, --- first, that, in the evasive language of this clause, the Convention, whatever may have been the aim of individual members, really intended fugitive slaves, which is sometimes questioned, and, secondly, that, if they so intended, the language employed can be judicially regarded as justly applicable to fugitive slaves, which is often and earnestly denied, --- then the whole proceeding, without any express legislation, may be left to ancient and authentic forms of the Common Law, familiar to the framers of the Constitution, and ample for the occasion. If the fugitive be seized without process, he will be entitled at once to his writ de Homine Replegiando, while the master, resorting to process, may find his remedy in the writ de Nativo Habendo, each requiring trial by jury. If, from ignorance or lack of employment, these processes have slumbered in our country, still they belong to the great arsenal of the Common Law, and continue, like other ancient writs, tanquam gladius in vagina, ready to be employed at the first necessity. They belong to the safeguards of the citizen. But in any event, and in either alternative, the proceeding would be by “suit at Common Law," with Trial by Jury; and it would be the solemn duty of the court, according to all the forms and proper delays of the Common Law, to try the case on the evidence, strictly to apply all protecting rules of evidence, and especially to require stringent proof, by competent witnesses under cross-examination, that the person claimed was held to service, that his service was due to the claimant, that he had escaped from the State where such service was due, and also proof of the laws of the State under which he was held. Still further, to the Courts of each State must belong the determination of the question, to what class of persons, according to just rules of interpretation, the phrase "person held to service or laboris strictly applicable.

Such is this much debated provision. The Slave States, at the formation of the Constitution, did not propose, as in cases of Naturalization and Bankruptcy, to empower the National Government to establish an uniform rule for the rendition of fugitives from service, throughout the United States; they did not ask the National Government to charge itself in any way with this service; they did not venture to offend the country, and particularly the Northern States, by any such assertion of hateful pretension. They were content, under the sanctions of compact, in leaving it to the public sentiment of the States. There, I insist, it must remain.

Mr. President, I have occupied much time; but the great subject still stretches before us.

One other point yet remains, which I must not leave untouched, and which justly belongs to the close. The Slave Act violates the Constitution, and shocks the Public Conscience. With modesty, and yet with firmness, let me add, Sir, it offends against the Divine Law. No such enactment is entitled to support. As the throne of God is above every earthly throne, so are his laws and statutes above all the laws and statutes of man. To question these is to question God himself. But to assume that human laws are beyond question is to claim for their fallible authors infallibility. To assume that they are always

« ПретходнаНастави »