provoked the zeal of a rival confederacy for the extension of slavery as its peculiar interest and pride. But they refused to adopt slavery, or even to name it; and though the Constitution, in three several phrases, betrays a subjective consciousness of this abnormal thing as existing in society, yet these very phrases were framed with the expectation that slavery would die, and the determination, that, so far as that instrument was concerned, liberty alone should have vital sustenance and active care. The first of these oblique phrases occurs in the third paragraph of the second section of the first article of the Constitution: "Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons."

Once and again in the course of debate it was proposed to designate these "other persons as "blacks," or "slaves;" and in the draught of the Constitution submitted so late as the 12th of September, only five days before its final adoption, was the phrase, "those bound to servitude for a term of years," which would mean slaves; but this was altered to "those bound to service," which might mean apprentices, so averse was the convention to stamping servitude upon the Constitution.

The second phrase is in the first paragraph of the ninth section of the first article: "The migration or importation of such persons as the several States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight." Why did they not say, "The slave-trade shall not be prohibited"? Gouverneur Morris proposed, “The importation of slaves into North Carolina, South Carolina, and Georgia, shall not be prohibited," &c.; but, on strong objection, he withdrew his amendment. Mr. Dickinson moved, "The importation of slaves into such of the States as shall permit the same shall not be prohibited," &c.; but this was disagreed to nem. con. The convention would not suffer slavery to intrench itself within the Con

stitution by so much as admitting its name. Mr. Madison "thought it wrong to admit in the Constitution the idea that there could be property in men," and that the liberty to import slaves for twenty years would be "dishonorable to the American character." i

The third and last of these oblique phrases was one, the forced construction of which, in later years, was the beginning of that sectional strife that could only be quenched in war. It reads, "No person held to service or labor in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due " (Art. ÎV. 2, 3). Every word of this clause might stand for runaway apprentices, and every verbal obligation be fulfilled by returning such fugitives, under the system of apprenticeship as it then existed in many States. No doubt runaway slaves were in the contemplation of this clause: but the framers of the Constitution regarded slavery as purely a local institution, existing only by force of the customs and laws of particular States, and not proper to be incorporated with the national Constitution; and, moreover, looking forward to its speedy demise, while providing for the mutual recognition among the States of their several local laws, so far as to avoid legal and judicial collisions, they refused to specify slavery as a thing to be guarded by the national code. I say, refused to do this; for, when the matter was under discussion in the convention, Gen. Pinckney expressed the wish "that some provision should be included in favor of property in slaves;" and Mr. Butler moved to require "fugitive slaves and servants to be delivered up like criminals." But the convention, set in its purpose not to affix the seal of slavery to an instrument of liberty, voted down every such proposal; and, instead of ordering that fugitive slaves should be delivered up by force of UnitedStates laws and officers, simply provided against a collision between State authorities through the opposition of local laws and usages. Mr. Madison says, that in the final adoption of the clause as it now stands, "on motion of 2 Ibid., iii. 1447.

1 Madison Papers, iii. 1627-1629.

6

Mr. Randolph of Virginia, the word 'servitude' was struck out, and service' unanimously inserted; the former being thought to express the condition of slaves, and the latter the obligation of free persons." No, not even the existence of servitude should have place in this charter of liberty.

The term "person" was studiously adhered to in order to exclude from the Constitution the idea of property in man. This comes out forcibly in the history of the Fifth Amendment proposed by the first Congress under the Constitution, and ratified by the legislatures of three-fourths of the States. This amendment declares that "no person shall be deprived of life, liberty, or property, without due process of law." Mr. Sumner brought out the fact, that, "as originally recommended by North Carolina and Virginia, this clause was restrained to the freeman. Its language was, 'No freeman ought to be deprived of his life, liberty, or property, but by the law of the land.” ” This limitation was rejected, and "person" substituted for "freeman." "The word 'person' in the Constitution embraces every human being within its sphere, whether Caucasian, Indian, or African, from the President to the slave." 1

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In this view, the Supreme Court long ago decided that slavery is a municipal regulation; is local, and cannot exist without authority of law; "2 and, when a slave escapes into a State where slavery does not exist, "there is no principle in the common law, in the law of nations or of nature, which authorizes his recapture." The prevailing construction of the Constitution was, that the return of fugitives should be negotiated through State courts and officers, the United States simply holding itself in reserve in the event of a conflict of laws and of jurisdiction. The attempt to transform this regulative princi

1 Sumner's Speech on Freedom National, Slavery Sectional.

2 Miller v. McQuarry, 5 McLean, 469; Gilbna v. Gorham, 4 McLean, 412. Quoted by Towle, Analysis of the Constitution, 207, 208.

3 This view was pronounced also by the supreme courts of slave States. Thus, in Mississippi, "Slavery is condemned by reason and the laws of nature: it exists, and can exist, only through municipal regulations" (Harry v. Decker, Walker, R. 42).

And again, in Kentucky: "We view this as a right existing by positive law of a municipal character, without foundation in the law of nature or the unwritten and common law" (Rankin v. Lydia, 2 Marshall, 470). Quoted by Sumner, Speech in Senate 26th August, 1852.

ple into an active obligation, to be enforced by the laws, the officers, and the people of the United States, making the Constitution an instrument for the protection, and even the propagation, of slavery, was a wide departure from the spirit and intent of the convention of 1787. In that body the strongest protests against the slave-trade and slavery were from statesmen of Virginia. That bold and eloquent orator, Col. George Mason, said of the slavetrade, "This infernal traffic originated in the avarice of British merchants." And of slavery he said, “It discourages arts and manufactures. The poor despise labor when performed by slaves. They prevent the immigration of whites, who really enrich and strengthen a country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities. He lamented that some of our Eastern brethren had, from a lust of gain, embarked in this nefarious traffic. As to the States being in possession of the right to import slaves, this was the case with many other rights now to be properly given up. He held it essential, in every point of view, that the General Government should have power to prevent the increase of slavery.' This was on the 22d August; and then, if ever, the advocates of slavery might have taken alarm, since, on the 13th July preceding, the Congress of the Confederacy had passed the famous ordinance for the government of the territory north-west of the River Ohio, which declared (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." With this pronounced purpose of Congress to exclude slavery from the national domain, and to provide against its establishment in new States, the defenders of slavery might well have been sensitive to the slight put upon the system by the omission to name it in the new Constitution. But a "proslavery man," an advocate of

1 Reported by Madison, iii. 1400.

the system upon ethical and political grounds, was in those days rarely to be found. Ten of the thirteen States had already prohibited the slave-trade, which Great Britain did not prohibit till twenty years later. The three' States whose commercial, domestic, and industrial interests were most nearly identified with slavery, obtained from the convention only a circuitous pledge that this traffic should not be prohibited by Congress before the year 1808. Without that concession, the Union could not have been formed: but in March, 1794, the Congress of the United States prohibited the slave-trade to foreign countries (though this traffic was still lively in British merchantmen); and on the second day of March, 1807, twenty-three days before the British Parliament abolished the slave-trade, Congress prohibited the importation of slaves, the act to take effect on the first day of January, 1808, the very instant that the tacit, reluctant permission of the Constitution should expire. Then, as to the rendition of fugitives, the circular of the British Admiralty in September, 1875,-like the Fugitive-slave Law of Congress in 1850, -shows how utterly the government of the hour may misrepresent the moral sentiment of a nation, though justifying its action by technicalities of law; and this whole review may well rebuke the Pharisaism of any in England who would taunt America with a system whose dying struggle their ministry, a strong party in Parliament, and their leading press, did so much to prolong.2

1 Sir William Grant, in his famous decision in the case of the Amédée, in 1807, distinctly concedes to America this priority in denouncing the slavetrade. "In all the former cases of this kind which have come before this court, the slave-trade was liable to considerations very different from those which belong to it now. It had at that time been prohibited, so far as respected carrying slaves to the colonies of foreign nations, by America; but by our own laws it was still allowed. The slave-trade has

since been totally abolished by this country, and our legislature has pronounced it to be contrary to the principles of justice and humanity. Whatever we might think, as individuals, before, we could not, sitting as judges in a British court of justice, regard the trade in that light while our own laws permitted it.". 1 ACTON'S Admiralty Reports, p. 240.

2 At the delivery of the Lecture, a few among my English hearers took umbrage at this passage; though the great majority, and these the better versed in history and affairs, frankly admitted its truth and justice. Gladly would I avoid reminiscences that could give pain to any; but, in giving an historical retrospect, dare not suppress important facts to gratify my own feelings or the feelings of friends. I think the passage as it stands in the text states the facts as they were in well-considered words,