Charles Sumner made his case to the Senate that the Fugitive Slave Clause did not constitute a vital compromise on which the framers hung the American Union. It came into the Constitution as an afterthought, toward the end of business in Philadelphia. No one had previously demanded the provision and South Carolina first advanced it as an annex to the provision for the return of fugitive criminals. Afterthought or not, the language did not go unmarked in Independence Hall. Sumner reminded the Senate that
the very boldness of the effort drew attention and opposition. Mr. Wilson, of Pennsylvania, at once objected: “This would oblige the Executive of the State to do it at the public expense.” Mr. Sherman, of Connecticut, “saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.”
Sherman’s argument may not sound like one opposed to the Fugitive Slave Clause, but keep in mind that the common law right to recover strayed livestock fell on the owner. One didn’t, at least absent a dispute, involve the courts or constabulary to get back a horse. With Sherman’s and Wilson’s objections before them, the Fugitive Slave Clause’s advocates let it drop for a day. It came up again on the morrow as a measure against “fugitives from service or labor” rather than “fugitive slaves” and the addition passed with unanimously without debate.
The latter fact didn’t comport well with Sumner’s argument on the clause’s contentious, marginal nature so he moved quickly from it to a discussion of ratification. There he acknowledged that Southern federalists had used the clause as part of the sales pitch for the Constitution but pointed to debate on the point:
In the Virginia Convention, an eminent character, Mr. George Mason, with others, expressly declared that there was “no security of property coming with this section.”
Should that not settle things, he referred the Senate to the Federalist’s discussion of national powers geared toward “harmony and proper intercourse,” which omitted the clause as one of them. That indifference, began at Philadelphia, continued through the first Fugitive Slave Act in 1793. Sumner argued that the law considered fugitive slaves only an an adjunct to fugitive criminals, which doesn’t quite match the circumstances. Resistance to the rendition of fugitive slaves from Pennsylvania directly led to the passage of the act. For that matter, Southerners sought many of the draconian provisions then that they would finally achieve in 1850.
Returning to facts, Sumner argued that few fugitives ended up back in slavery under the 1793 law. He rightly noted that even then, northern opinion leaned toward the self-stolen slave to the point that in Boston
the crowd about the magistrate, at the examination, quietly and spontaneously opened a way for the fugitive, and thus the Act failed to be executed.
A Vermont judge did one better, looking at documents proving ownership and deciding to only sanction rendition if “the master could show a Bill of Sale from the Almighty.” In the face of such obstruction of so vital a right, Southerners twice before 1850 tried for a better law and both times failed to get one through Congress. Sumner brought them up entirely to note those debates as the first time that the South chose to view the Fugitive Slave Clause as a vital part of the Union.