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[392] the free States,—at least those most enlightened and humane. It was, as the elder Quincy expressed it, ‘an insupportable burden.’ American politics now presented the anomaly, not before seen in history, of a people divided by a conventional line, with an institution on one side maintained by public opinion as just and humane, and claiming protection and support on the other among those whose sense of right forbade them to help it in any way. If Congress for want of power did not legislate on the subject, and the States failed to give any effective remedy to the master, he might still have a right of recaption, without legal process, which would not, however, avail him in jurisdictions where the popular feeling was adverse to his claim. If he thus found himself with a right, for the loss of which the law gave no adequate remedy or compensation, he was no exceptional sufferer. Proprietary rights of various kinds lose their value in the progress of civilization; and this result may come to pass as well by the development of moral ideas and instincts as by new customs and inventions.

Sumner was cautious not even to admit that the clause in the Constitution relative to persons ‘held to service’ comprehended fugitive slaves, though not expressly adopting a theory which rejected contemporaneous history as a guide in construction, and confined the clause to apprentices and other free persons escaping from service under a contract.1 In saying that he admitted no obligation on his part to return fugitive slaves, he may have had in mind not only his exemption from any personal duty as a citizen, but also a distinction between an obligation to return,—that is, to take positive action of some kind,— and the duty of mere passive acquiescence.

The Senate committee on pensions reported a bill at the same session making a provision for Batchelder's widow. Sumner and Seward, members of the committee, dissented in a minority report, July 13, drawn by Sumner, on the ground that the proposed grant was based on no competent evidence, concerned a matter still under judicial investigation, and was a provision for the family of a person who had not rendered any military or naval services such as pensions had hitherto been exclusively confined to; and further, was a recognition of a service rendered

1 Works, vol. III. pp. 139, 378. The senator had, perhaps, in reserve a construction like that adopted in the argument for ‘The Unconstitutionality of Slavery,’ by Lysander Spooner, a writer of original power, but without rank among jurists.

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