Charles Sumner insisted to the Senate that, properly construed, the Constitution permitted the national government no power to institute, defend, or protect slavery. Such authority belonged exclusively to the states, which could choose as they wished. He said as much in an argument against the Fugitive Slave Act of 1850, but the point reached further. The act and the theories that led to it both grated against the true meaning of the Constitution, which enshrined a national presumption of freedom that could not be surrendered absent due process of law. That left Sumner with a problem in the form of the Constitution’s Fugitive Slave Clause:
No person held to service or labour 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 labour, but shall be delivered up on claim of the party to whom such service or labour may be due
By the plain reading of the text, the Constitution does make the rendition of fugitive slaves a national business of some kind. If a slave crossed state lines, the government in Washington had an obligation to return them. Sumner had to explain that away.
The Senator commenced by declaring that none of the great compromises at Philadelphia hung on the clause, after which he reviewed them at length. Returning to the subject, he remarked that the Virginians there presented sixteen resolutions on the best form of government and none called for any fugitive renditions. Nor even did the South Carolinians, who presented a plan “marked by considerable minuteness of detail” quite say that. Their plan included a provision for the return of fugitives from justice, but not fugitive slaves. The “flaming guardian of the slave-interest” can’t have missed that opportunity by chance.
That must sound like hair-splitting. Since he talked himself into a corner, Sumner wanted to lawyer the corner into a boulevard. But he had a point, if a narrrow one. We call people who have some kind of court judgment against them or who flee capture by law enforcement fugitives from justice. Fugitive slaves had, and often could not legally have, any such court order. If it took a judge to declare everyone a slave to start with, the system wouldn’t have withstood the spotty legal infrastructure of the early United States. Nor did Southerners usually consider fugitive slaves in defiance of a law, precisely. They asserted the right to fugitive rendition by analogy to non-human livestock. If a cow or a horse strayed into someone else’s land, you had a common law right to go in and get it back inherent in the right to hold that animal as property. As another species of property, slaves must count for that or they must not count as property.
The whole work of the convention nearly passed, with seven full drafts of the Constitution, before the fugitive slave matter came up. Then Charles Cotesworth Pinckney suggested the convention ought to do something about fugitive slaves, though he declined to present one. The next item on the agenda involved the rendition of those aforementioned fugitives from justice, at which point Pinckney and another South Carolinian moved that fugitive slaves fall under the same provision. That would treat them as criminals.
Sumner might have made an arcane, technical point, but it had a substance to it all the same. The framers did not act like men who viewed the Fugitive Slave Clause as a critical compromise to preserve the Union. They treated it like a genuine afterthought.