Salmon P. Chase: Reclamation of Fugitives from Service

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I now reach the gravest and most momentous question in this important controversy:

Is the act of 1793 repugnant to the Constitution of the United States?

I am met at the threshold, by the objection, that this question has already received the full consideration and final decision of this Court, and is no longer an open question. But, with the greatest deference, I submit that no single decision of any tribunal, however exalted, upon a question of such high consequence as this, should be regarded as absolutely final and conclusive.…

The precise question before this Court, in the memorable case of Prigg v. Pennsylvania, was this:… Does the Constitution of the United States … confer on the masters of fugitive servants, the right, in person or by their agents, to retake them by force, in any state to which they may have escaped, and convey them out of such state to that from which they fled, without process or judicial sanction; and are all laws of the states to prevent kidnapping or abduction by private force, unconstitutional and void in their application to such cases? The court held that the master of a fugitive slave may pursue and recapture him, and convey him out of the state in which the seizure is made, without complying with the provisions of the act of Congress or of the state laws on the subject, and that all state legislation making such seizure and abduction penal, is unconstitutional and void.

It may be doubted, indeed, whether this decision can be quite consistent with the affirmation of the constitutionality of the act of 1793.…

No question, therefore, as to the constitutionality of that act was necessarily before the court in the Prigg case. Its constitutionality was indeed, affirmed; by some of the judges, as the exercise of a power vested exclusively in Congress; by others, as the exercise of a power concurrent in Congress and in the state Legislatures.…

In no former case, I think, has so great a diversity of views marked the reasonings by which the several judges of this Court have reached their respective conclusions. Perhaps, also, it is not too much to say, that the decision of the majority, both as to the right of recaption under the constitution, and as to the constitutionality of the act of Congress, has failed to command the assent of the profession, especially in the nonslaveholding states.…

It is quite certain, also, as I think, that the right of reclamation, converted by the decision into a right of recaption, has not been fortified, but, on the contrary, seriously impaired by it. The right is placed, by the opinion of the court, upon a ground, 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.…

I proceed, without further delay, to state the proposition which I shall endeavor to maintain. It is this: The act of Congress of February, 1793, so far as [it] relates to fugitives from service, is unconstitutional and void.…

I insist, first, that the provisions of the act of 1793 are repugnant to several positive provisions of the Constitution.

In order to obtain a clear understanding of this matter, it will be necessary to advert to the circumstances of the country, and the state of public opinion, at the time of the adoption of the Constitution.…

It is thought, by some, that a leading object in the formation of the Federal Constitution was to secure to the citizens of the slaveholding states their rights of property in slaves. But what is there in the history of the country, or of the Constitution, to warrant such an opinion? On the contrary, does not that history prove that it was the clear understanding of all parties concerned in the establishment of the National Government, that the practice of slaveholding was inconsistent with the principles on which that government was to be founded?…

The very first act of the first Congress of the Confederation—the memorable non-importation, non-consumption and non-exportation agreement of that illustrious body—contained a clause, by which the delegates pledged themselves and their constituents to discontinue, wholly, the traffic in slaves.…

Two years afterwards the Declaration of Independence was promulgated. No one will be willing to say that its language was not carefully considered, or that the patriot statesmen, who put their names to it, were hypocrites who sought to delude the world by empty flourishes of rhetoric. It will be admitted that they were earnest men, who meant what they said. Well, these men, at that solemn moment, and in that solemn appeal to God and Mankind, chose to put their cause upon the solid foundation of equality of rights among men.… It is not going too far, in my poor judgment, 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.…

When the war of the revolution terminated in the recognized independence of the republic, the Congress issued an address to the states.… In the conclusion of this address, I find this passage … “Let it be remembered, finally, that it has ever been the pride and boast of America, that the rights for which she contended, were the rights of human nature.” Whatever else may be said of this, it cannot be denied that it proves, beyond controversy, that the Declaration was intended to assert the right to liberty, not as vested in a part of mankind only, but as inseparable from human nature itself.…

If any man be disposed to reproach the fathers of the republic with inconsistency and hypocrisy, in not giving practical effect to their declarations in favor of liberty and the rights of human nature, let him turn to the Ordinance of 1787, and be silent. 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. By a single provision, the slavery, then existing in the territory, was abolished, and its future introduction was forever prohibited. And thus the Congress directly asserted, what it had before often indirectly declared, that slavery was incompatible with “the fundamental principles of civil and religious liberty,” which constitute the basis of American Government.

These several national acts, it seems to me, supply conclusive proof that it was never intended that the American Nation, should be, in any sense, or in any degree, implicated in the support of slavery: but, on the contrary, that it was the original policy of the government of the United States, to prohibit slavery, in all territory subject to its exclusive jurisdiction, and to discountenance it by the moral influence of its example and declarations, in the states and districts over which it had no legislative control.

Nor is there, as it seems to me, any room for doubt that it was the general expectation, at that time, that slavery, under the influence thus exerted, would disappear from the legislation and the polity of every state, at no very distant period.…

Such was the state of opinion at the time the constitution was framed; and the pages of Mr. Madison’s report of the Debates in the Constitutional Convention are full of proofs of its influence upon the proceedings of that body. Every where we see the clearest evidence of deliberate purpose, to exclude all recognition of the rightfulness of slaveholding, and all national sanction to the practice, from every provision of the constitution. Mr. Madison, himself, declared that it was “wrong to admit in the constitution the idea, that there can be property in men.” Neither the word “slave,” nor the word “slavery,” nor any term equivalent to either, is to be found in the instrument; and the exclusion of these words, is a most emphatic censure of the practice represented by them.…

It is quite true that the constitution contains several clauses which were designed to refer to slaves; but not one of them refers to slavery as a national institution, to be upheld by national law. On the contrary, every clause, which ever has been, or can be construed as referring to slavery, treats it as the creature of state law, and dependent, wholly, upon state law, for its existence and continuance. Under the constitution … the national government … pledged … to exert its legitimate authority to exclude it [slavery] from all national territories, and to discourage it elsewhere, by the powerful influence of example and recommendation.

A different doctrine has sprung up and found favorers since; but that doctrine is not the constitution. It is a pernicious parasite, rather, which, planted by the side of the constitutional oak, by other hands than those of the Founders of the Republic, and nurtured with malignant care, has twined itself around the venerable tree, and now displays its poisonous fruits and foliage from every branch.…

I call upon this honorable court to restore the true construction of the charter of our union, by stamping with its decisive disapprobation, every attempt to introduce into it, what its framers studiously excluded from it, a sanction to “the idea that there can be property in men.”