Page:Unconstitutionality of the Fugitive Act.djvu/11

 regarded slavery as a great evil and wrong, but their sentiments had not gone so far as to occasion individual interference. It is a historical fact, alluded to in the opinion of Chief Justice Shaw, that under the confederation, fugitive slaves were given up as a matter of comity.—There was no article requiring it. Mr. Butler, of South Carolina, in a speech in the Senate, at the time this act was passed, treated it as a matter of astonishment, that the whole power of the Union had to be called in to accomplish what "our simple ancestors" performed without compulsion. He said that for five or six years after the adoption of the constitution, this clause was universally obeyed, and needed no legislation from any quarter, to carry it into execution. These facts, and the fact that among all the numerous drafts that were presented, in the convention that framed the constitution, there was none containing any clause about the fugitives from labor, and that no such was proposed until nearly the close of the convention, and that it was adopted in its present shape, without comment or opposition, show that there was no such solicitude about this matter as these decisions pretend. They show that the object of the clause was only to protect the slave-owners from the effect of the laws of the Northern States, and not against any other danger.

The design was to prevent the State from throwing over the slave the broad and impenetrable shield of its law, to protect him from the power of his master. Against all other dangers, the love of liberty in the bosom of the slave, the humanity or the fraud of third persons, the master was left to protect himself as best he might. And when the court argues the question as though the object were to furnish him a remedy against all dangers, it goes much farther than there is anything either in or out of the instrument to warrant it in going. It confines its views to only one side. It labors to arrive at such a construction as shall best suit the convenience and accomplish the purposes of the slave-owners. Yet the court has itself told us that this is one of the provisions which were "matters of compromise of opposing interests and opinions." If that was the case, then in the historical investigation, there would be no justice in searching out the extreme views and purposes of one side only, and giving such a construction as would best accomplish them. On the contrary, the opinions and purposes of both sides should be equally considered. And it, as the court assert, it was natural for the slave owners to desire to remove as many obstacles as possible, we may, with equal justice, assert on the other hand, that it was natural for those who held "opposite opinions," to desire to remove as few as possible. If one side desired slavery, the other desired liberty. The people of the free States were hostile to slavery. They had exercised the right of emancipation by their laws, an act which they never would have done in relation to any other property, showing that they regarded the claim of property in a human being as without any foundation in natural right and justice. They believed in the language of Senator Bishop, in the case of Jack vs. Martin, that slavery is abhorred in all nations where the light of civilization and refinement has penetrated, as repugnant to every principle of justice and humanity, and deserving the condemnation of God and man."

Since such were their sentiments, the natural inference certainly is, that if for any purpose they consented to surrender a portion of their right to act against that system, they desired to surrender as little as possible, and intended to surrender no more than was clearly implied in the instrument by which the surrender was made. And there seems to be far more reason to believe that the free States would not have consented to the union with this clause, if they had supposed it granted to congress the power to make slave-hunters of their people and to jeopardize their liberties, than to believe that the South would not have consented to the union without this clause. The court asserts that the latter is true, but the assertion does not seem to be well-founded. Indeed, it cannot be possibly conceived why the South should have refused to enter the Union without this clause, when it is expressly admitted that under the old confederation they could not compel the delivery of their slaves, and consequently would have been in no worse a position by coming in, than by remaining out. An historical investigation shows, then, both by the express statements of slave-owners and by the natural desires of the people of the free States, that the only object of the clause was to prevent the States from giving to the slaves that escaped into them a legal right to their liberty.

How is this object to be accomplished? Clearly as follows: The court holds that the owner may, by virtue of the constitution, seize upon his slave wherever he finds him in the United States. If this is so, the only means by which the slave could be legally discharged would be to resort to some State law for the protection of liberty. If he did so resort, it would be the duty of the tribunal before which the process was returned, on proof that he owed service or labor to the claimant in another State, according to its laws, not to discharge him, but to "deliver him up" to the claimant again, that is, to allow the claimant to take him away. By this means the object of the clause is accomplished. The State does not, by any of its laws, discharge him, but the owner is allowed to maintain over him such jurisdiction as he can. And that is all the right he has in the slave States, so far as the master and slave are concerned. If he can hold him by force, he holds him, and if the slave can escape, he does so.

But it is said that the words "he shall be delivered up on claim," &c., require positive legislation to prescribe the manner in which the claim shall be made. It is argued that the word "claim" necessarily implies legislation "to protect the right and enforce the delivery "of the property claimed." The Court says on page 615: "A claim is to be made. What is a claim? It is, in a just juridical sense, a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty. A more limited, but at the same time an equally expressive definition, was given by Lord Dyer, as cited in Stowell vs. Zouch, Plowder 359, and it is equally applicable to the present case; that "a claim is a challenge by a man of the property or the ownership of a thing, which he has not in possession, but which is wrongfully detained from him."

But a moment's examination seems sufficient to convince any one that the word "claim," could not have been used in the constitution, in its technical legal sense. The court has decided and the fugitive law provides that the owner may seize upon his slave without process. He, certainly, after that, can make no "claim" in its technical sense, because by the definition just cited, a "claim" is of something "that is wrongfully detained" from the claimant.—And consequently if the definition and reasoning of the court are correct, there never could be a legal "delivery up," in a case where the slave was seized without process, because the "delivery" is only to take place "on claim," and there can be no claim after seizure, because the property is already in possession.

Take then, the case where the slave is not in possession of the owner. Can he make a technical claim then?—Clearly not. The court says, on page 516—

"It is plain, then, that where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person."

Now, there is no "other person" in a free State, against whom the claim can be made. For by the law of that State, the fugitive is not a subject of property, and consequently no citizen in the State can assert any right to him, or have him in possession, but he may go at large where he pleases. He may be hidden in the forests or the swamps, or fleeing from place to place, to find some spot where his wearied feet may rest in peace. In this event, then, against what "other person" shall the claim be made?—There is none. And, therefore, by the reasoning of the court, a constitutional delivery can never take place. Because it can only take place "on claim," and no claim can be made. Where the slave is seized without process, it cannot be made, because the property is already in possession, and no longer "detained;" and it cannot be made when the slave is out of possession, for there is no "other person" against whom to make it.

Neither a free State, nor any of its citizens, nor the United States could have the fugitive in possession. Consequently no technical legal claim could be made against any person for his delivery. And in the practice under the Fugitive Law, no claim is made against "another person." These considerations seem clearly to show, that even the interest of the slave owners requires that the word "claim," in this clause, should not be construed in its technical legal sense. The error of the court was in treating the case as though the slave were recognized as property in the free States. And this view is sustained by the opinion of Judge Wayne. On page 646 he says:

"The case of a fugitive slave is not like that of a contest for other property, to be determined betweeen two claimants by the remedy given by the tribunals of the State where the property may be. It is not a controversy between two persons claiming the right to a thing, but the assertion by  person of a right of property in another, to be determined on principles peculiara to such relation."