Salmon P. Chase: Reclamation of Fugitives from Service

Explanation and Analysis of the Document

Chase's career as a major antislavery figure began when he moved to Cincinnati, Ohio, in 1830. Within a few years of his arrival, Chase had established a successful legal practice, had become active in the city's political circles, and had thrown himself into a range of reform causes. By the mid-1830s those causes included abolition—the immediate end to slavery in the United States—and Chase made his contribution by defending fugitives fleeing to Ohio from southern border states. He had not picked an easy battle. Under Article 4, Section 2, of the Constitution, the so-called fugitive slave clause, masters and their agents held a right to track down runaway slaves in free states such as Ohio and take them back to the South. Congress had affirmed that right in a 1793 statute and even gave it more teeth by imposing stiff penalties on those who aided fugitives during their escape. Chase's challenge would become more daunting after 1842, when the U.S. Supreme Court ruled that the Fugitive Slave Act of 1793 was constitutional. In 1847 Chase asked the Court to revisit that decision in Jones v. Van Zandt, in which he defended a person accused of harboring fugitive slaves. His brief, which he later published under the title Reclamation of Fugitives from Service, made little headway with the justices, but it did present an analysis of the Constitution as a fundamentally antislavery document that would become highly influential in northern political circles.

Jones dealt with the question of harboring fugitives, and much of the brief involved Chase's effort to convince the justices (ultimately unsuccessfully) that his client had harbored no fugitives within the meaning of the Fugitive Slave Act. Chase, however, reaches beyond that issue and argues that the 1793 law violated both the Revolutionary generation's commitment to liberty and a proper understanding of the Constitution itself. Chase first has to convince the Court to reject its ruling in Prigg v. Pennsylvania, which upheld the Fugitive Slave Act of 1793. He notes that the justices in that case disagreed sharply as to why the law was constitutional. “In no former case,” Chase asserts, “has so great a diversity of views marked the reasonings by which the several judges of this Court have reached their respective conclusions.” Such division of opinion undermined the ruling's authority. “The decision,” Chase notes, “has failed to command the assent of the profession, especially in the nonslaveholding states.” And among nonlawyers, Prigg was “so repugnant to the feelings of all classes of men in the north and northwest … that it encounters, at this moment, a degree of jealousy and hostility beyond all former precedent.”

Such hostility, Chase implies, came about because the Fugitive Slave Act departed from the original antislavery intent of America's founding. Reviewing the historical record, Chase argues that all parties involved in forming the U.S. government understood that “the practice of slaveholding was inconsistent with the principles on which that government was to be founded.” The Continental Congress's first act “contained a clause, by which the delegates pledged themselves and their constituents to discontinue, wholly, the traffic in slaves.” Two years later, that body issued the Declaration of Independence and “and in that solemn appeal to God and Mankind, chose to put their cause upon the solid foundation of equality of rights among men.” Every state adopted the Declaration of Independence, and in so doing committed themselves to antislavery principles. “It is not going too far … to hold this declaration to be an authentic promulgation of the common law of the Union in respect to the inviolability and inalienability of personal liberty, and inconsistent with the longer continuance of slavery in any of the States.”

Further proof of the Revolutionary generation's antislavery commitments came from the Northwest Ordinance (1787), which organized the territory that eventually became the states of Illinois, Indiana, Ohio, Michigan, and Wisconsin. The ordinance contained a clause prohibiting the introduction of slavery in the territory. “By that great instrument the Congress of the Confederation dedicated that immense national domain to liberty forever, and thus, by one illustrious act, manifested its own sincerity, and furnished a precedent for national action, in all future cases of like nature.” This antislavery sentiment, Chase insists, extended throughout the Union. By 1787, only seven states had not taken steps to end slavery, and some of them—notably Maryland and Virginia—displayed an interest in emancipation. Thus, when the Constitutional Convention met in 1787 there was no expectation that “slavery would be a permanent institution of any state.” The framers, Chase notes, deliberately excluded “all recognition of the rightfulness of slaveholding, and all national sanction to the practice.” The word slave never appeared in the document. Although there were some clauses that obliquely referred to slavery, “not one of them refers to slavery as a national institution, to be upheld by national law.” Rather, the national government sought to discourage slavery “by the powerful influence of example and recommendation.”

This analysis ran counter to the Court's constitutional interpretation, which assumed, rightly or wrongly, that slavery was a legitimate institution and considered the clauses recognizing slaveholding to be the product of fundamental compromises that made the Union possible. Chase simply dismisses that position as a wrong. A pro-slavery reading of the document, he writes, was “a pernicious parasite … which, planted by … the constitutional oak, by other hands than those of the Founders … , has twined itself around the venerable tree, and now displays its poisonous fruits and foliage from every branch.” A proper reading of the document, he insists, would demonstrate the incompatibility between slavery and the Constitution. The Constitution recognized no slaves; it recognized only persons, although those persons may have been “bound to service” in the language of the fugitive slave clause or “imported” in the clause dealing with the slave trade. All persons, regardless of status, received constitutional protections that the Fugitive Slave Act violated. Contrary to the Fifth Amendment, the 1793 law deprived alleged fugitives of their Fourth and Fifth Amendment rights by subjecting them to seizing them unlawfully and depriving them of due process.

This law, Chase writes, threatens everyone. A person acting under the provisions of this act need not limit himself to African Americans. Any person could be defined as a servant and swept up under the law. Surely an act that would sanction such abuses must be unconstitutional. None of these arguments, however, swayed the Court, and the justices likewise found unpersuasive Chase's suggestions that Congress possessed no power to legislate on the subject of fugitive slaves or that the common law remedy of replevin, which Court used to explain the masters' right to reclaim alleged fugitives, was outdated and unsuited to American conditions. Justice Levi Woodbury, speaking for the Court, took note of the lengthy brief and then dismissed it in a paragraph.

Despite his loss, Chase introduced a number of arguments that would become highly influential off the Court. His portrayal of the Constitution as a fundamentally antislavery document, an interpretation that many historians find questionable, appealed to politicians attracted to antislavery but leery of arguments put forth by such abolitionists as William Lloyd Garrison or Wendell Phillips that portrayed the Constitution as essentially pro-slavery. Chase's contention that the federal system had lost sight of its original commitment to antislavery and needed to be placed back on track would become a staple of Republican Party ideology in the 1850s. So would his contention that a sinister force was bending the Constitution in pro-slavery directions. In the late 1840s, however, these ideas had not yet captured the imagination of the public. But Chase's advocacy of them made him an important figure in the Free Soil movement, which he used to launch himself into the U.S. Senate, where he would wait for another issue to propel his ideas forward.