in war the least amount of evil, that is compatible with their true interests." a
Guided by these general considerations the Commission proceed to examine the question of emancipation, legally considered.
In so doing it may simplify the matter if we offer a few preliminary observations on the-
SECTION 1.-Constitutional aspect of what is called slave property.
There has been radical diversity of views on this subject. Extreme opinions on either side have been confidently urged, one party alleging that the Federal Constitution admitted and sanctioned property in human beings, another that its very preamble utterly excluded that idea, and that none of its provisions recognized, or could recognize, in any sense a social institution that is contrary alike to law and to morality.
We cannot reach clear ideas of the constitutionality of emancipation under any circumstances until we settle in advance under what phase and to what extent the social relation known as slavery is recognized (if it be recognized) by the Constitution of the United States. And throughout the prosecution of such an inquiry it behooves us to bear in mind the great fundamental ideas of human liberty and natural rights, to give legal force to which that instrument was originally framed. It behooves us, further, to keep in view a well-established legal principle, founded on justice and identified with civilization, laid down by the Supreme Court of the United States in these words:
Where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, a legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects. b
The constitutional provision regarding the slave-trade, cautions in its phraseology, was temporary only, ceasing to operate after the year 1808, and need not therefore be considered.
There are but two other provisions remaining that bear on this subject, familiar to all, for they have been the theme of a hundred excited discussions, one contained in the fourth article and second section of the Constitution, being in these words:
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.
The claims to service or labor here referred to may be for years or for life; both are included in the above provisions. In point of fact, there were existing at the time that provision was adopted (as there still exist) both classes, the first class for a term of years then consisting in part of claims against foreign adults who had bound themselves to service for a limited time to repay the expenses of their emigration, but chiefly, as now, of claims to the service or labor of what were called apprentices, usually white minors; the second, for life, were claims to the service or labor of men, women, and children of all ages, exclusively of African descent, who were called slaves.
a Le droit des gens est naturellement fonde sur ce principe, que les diverses nations doivent dans la paix le plus de bien, et dans la guerre le mois de mal, qu"il est possible, sans nuire a leurs veritables interets. (Montesquieu De l"Esprit des Lois, l.i, c.iii.)
b United States against Fisher (2nd Cranch, 390.)