men are free. But in some governments the law of the state, upheld by
the power of the state, overrides the law of nature, and enslaves a
portion of the people. The law of nature recedes before this legalized
violence; but it recedes no farther than the legalized violence drives
it back. Within the jurisdictional limits of such states, then,
slavery is made _legal_, though it is not made _right_. But if a slave
passes out of the jurisdiction where violence overpowers right, into a
jurisdiction where right is superior to violence, he is then free; not
because there is any change in the man, but because there is a change
in the laws to which the man is subject.
There may, however, be some further positive law which, though it does
not authorize the buying or selling of a slave, still does provide
that an escaped or escaping slave may be recaptured and redelivered
into bondage. Such is the third paragraph of the second section of the
fourth article of the constitution of the United States. Such, too, is
the act of Congress of February 12, 1793, providing for the recapture
of fugitive slaves. This, however, would not be without positive law.
The debates in all the conventions for adopting the constitution
of the United States, proceed upon the ground that slavery depends
upon positive law for its existence. If it did not,--if a man who
has a legal right to a slave in Virginia, has a legal right to him
anywhere,--then the provision in the constitution, and the act of 1793
for recapturing fugitive slaves, would have been unnecessary.
On the south side of a boundary line, then, slavery may exist by force
of positive law; while, on the north side, in the absence of any such
law, slavery is unlawful. A slave passing out of a jurisdiction where
slavery is legalized, into a jurisdiction where it is not, becomes
free. It is as though a man should migrate from one of those South
Sea islands, where cannibalism is legalized, and where the public
authorities, according to the reports of travellers, not only condemn
and execute a criminal, _but dine on him, after he is executed_,--it
is, I say, as though the subject of such a government should migrate
into one where cannibalism is not lawful, and where, therefore, though
he should be condemned and executed for crime, it would be no part of
the sentence or the ceremony that he should be eaten by his judges. He
is out of cannibal jurisdiction.
The right of freedom is a natural right. It is a positive existence.
It is a moral entity. Like the right to life, it pertains, by the law
of nature and of God, to every human being. This moral right continues
to exist until it is abolished. Some act abolishing this freedom, then,
must be proved; it must be proved affirmatively, or else the fact
of freedom remains. This is the solid and indestructible ground of
the maxim, that slavery can exist only by positive law; that it is a
_local_ institution; that the right of freedom must first be abolished
before slavery can exist.
2. My second position is this: _That a man’s legal condition may be
changed by a change in the government over him, while he remains in the
same place, just as effectually as it can be changed by his removal
to another place, and putting himself under another government._ The
inhabitants of the North American colonies did not change their place
of residence when they passed from under the government of Great
Britain, and came under the government of the confederation. The
Mexicans, inhabiting the then states of California and New Mexico, did
not change their place of residence, when, on the thirtieth day of May
last, they ceased to be citizens of the Mexican republic, and became
citizens, or _quasi_ citizens of the United States. Their political
relations were changed, not by their removal from under the canopy
of one government and placing themselves under the canopy of another
government, but by the withdrawal of one government from over them, and
by the extension to them of certain _political_ rights and capacities
under another government. Before this thirtieth day of May, they could
have committed treason against Mexico, but not after it. Before it,
they could not commit treason against the United States; but when
they shall be citizens of the Union, they can. These vital changes in
their relations are without any change in their residence. Within my
recollection, an old gentleman died in Massachusetts, who had lived in
five different towns, but still remained where he was born, like one
of the old oak trees on the homestead. The part of the original town
where he was born had been set off and incorporated into a new town;
and that part of the second town where he lived, into a third; and so
on, until he died in the fifth town without any change of domicile.
Now, this man lived under the jurisdiction and by-laws of five towns,
as they were successively incorporated over him, just as much as though
he had struck his tent five times, and placed himself, by successive
migrations, under five different municipal jurisdictions.
A similar thing must have happened to thousands of our fellow-citizens
of the Union. Some of them at first lived under a foreign government;
then under one territorial government; then under another; and at
last have become citizens of a state, without any change of domicile.
Indeed, it would seem that nothing can be clearer than the proposition,
whether regarded as a legal or a political one, that the laws and the
jurisdiction may be changed over a man who continues to reside in the
same place, just as effectually and as completely as a man may change
the laws and jurisdiction over himself by removing to a different
place. In many cases, the former works a more thorough change than
the latter. The laws of Great Britain do not acknowledge the right
of self-expatriation; while, at the same time, it is held, that the
inhabitants of a foreign province, incorporated into the kingdom,
change their allegiance without changing their residence.
3. My third proposition is this: _That the jurisdiction under which the
inhabitants of what is now the District of Columbia lived, prior to the
cession of the District by Maryland to the United States, was utterly
and totally changed, at the moment of the cession,--at the moment when,
according to the provisions of the constitution, they ceased to be
citizens of the state of Maryland, and became citizens of the District
of Columbia._
By the 17th paragraph, (Hickey’s Constitution,) of the 8th section
of the 1st article, it is provided that Congress shall have power
“to exercise exclusive legislation in all cases whatsoever over such
District, (not exceeding ten miles square,) as may, by cession of
particular states, and the acceptance of Congress, become the seat of
the government of the United States.”
Congress, then, has the power of sole and exclusive legislation, “in
all cases whatsoever,” in regard to the District of Columbia. What
is the meaning of the word “exclusive” in this connection? It cannot
mean _absolute_ and _uncontrolled_; for, if it did, it would make
Congress as sovereign as the Russian autocrat. It means that no other
government, no other body of men whatever, shall have concurrent power
of legislation over the District; nor, indeed, any subordinate power,
except what may be derived from Congress. Over every man who is a
citizen of one of the United States, there are two jurisdictions,--the
jurisdiction of the general government, and the jurisdiction of the
state government. There are two governments that have the power to
legislate for him; but there is only one power,--the Congress of the
United States,--that can legislate for a citizen of the District of
Columbia.
In _Kendall_ vs. _The United States_, 12 Peters, 524, it is said,
“There is in the District of Columbia no division of powers between the
general and state governments. Congress has the entire control over the
District, for every purpose of government.”
So it has been held that a justice of the peace in the District of
Columbia is an officer of the government of the United States, and is
therefore exempt from militia duty. _Wise_ vs. _Withers_, 3 Cranch,
331; 1 Cond. Rep. 552.
A citizen of the District of Columbia is not a citizen of any one
of the United States. _Hepburn et al._ vs. _Ellery_, 2 Cranch, 445;
_Westcott’s Lessee_ vs. _Inhabitants ----_, Peters, C. C. R. 45.
Up to the time of the cession, the inhabitants of this District were
under two jurisdictions--that of Maryland and that of Congress;
but after the cession, under that of Congress alone. Now, when the
inhabitants of this District passed out of the jurisdiction of
Maryland, and came under the exclusive jurisdiction of Congress, let us
see what was the effect of such change of jurisdiction upon them.
In the act of Congress of 1790, c. 28, sect. 1, which was an act for
establishing the seat of government of the United States, there is
the following clause: “_Provided, nevertheless_, That the operation
of the laws of the state [of Maryland] within such District shall not
be affected by this acceptance, _until the time fixed for the removal
of the government thereto, and until Congress shall otherwise by law
provide_.”
Here, then, Congress _expressly_ provided and contracted with the state
of Maryland, that the laws of Maryland in this District should not be
interfered with until the removal of the seat of government to this
place; and Congress likewise _impliedly_ provided and contracted, that
when the seat of government should be removed to this place, it would
discharge the duty imposed upon it by the constitution of the United
States, and would assume and exercise the “exclusive legislation”
provided for in that instrument. This act of Congress was approved on
the 16th of July, 1790.
By the Maryland laws of 1791, c. 45, sect. 2, that state ceded to the
United States the territory which now constitutes the District of
Columbia, and the words of the cession are these: “In full and absolute
right, as well of soil as of person, residing or to reside thereon,”
&c. ... provided that the jurisdiction of the laws of Maryland “shall
not cease or determine _until Congress shall by law provide for the
government thereof_.”
The state of the case, then, was simply this: 1. The constitution
gave Congress power of “exclusive legislation” over such district
as might be ceded for the seat of government. 2. Congress, by the
act of 1790, above referred to, proposed to the state of Maryland to
accept a portion of her territory for this purpose, but engaged not to
interfere with her laws until after it had taken actual possession of
the ceded territory. 3. Maryland accepted the proposition, rehearsing
the condition in these words; namely, that “the laws of Maryland shall
not cease or determine until Congress shall by law provide for the
government thereof.”
By the 6th section of the act of 1790, c. 28, Congress provided that it
would remove to this District, and make this the seat of government,
on the first Monday of December, 1800. It did so; and now its express
duty under the constitution, and its implied promise to the state of
Maryland, were to be fulfilled, by exercising “exclusive legislation”
over this District.
In fulfilment of this duty and promise, Congress, on the 27th of
February, 1801, by the act of 1801, c. 15, proceeded to legislate for
the District of Columbia; and, in the first section of that act, it
provided as follows:--
“_Be it enacted, &c._, That the laws of the state of Virginia, as they
now exist, shall be and continue in force in that part of the District
of Columbia which was ceded by the said state to the United States,
and by them accepted for the permanent seat of government; and that
the laws of the state of Maryland, as they now exist, shall be and
continue in force in that part of the said District which was ceded by
that state to the United States, and by them accepted, as aforesaid.”
By this act, then, Congress assumed to exercise, and did exercise, that
exclusive legislation over the District of Columbia which had been
provided for by the constitution.
That portion of the District which was ceded to Congress by Virginia,
having been receded to that state by the act of Congress of July 9,
1846, (stat. 1846, c. 35,) all that relates to it may, for the purposes
of this argument, be laid out of the question.
On the 27th day of February, 1801, then, the laws of Maryland, _as
such_, were abrogated in this District. The legislative power of
Congress was _de facto_ exclusive. All legislative power previously
possessed by Maryland over it, then ceased. The connection of
Maryland with this District, as a part of its former territory, and
occupied by its former citizens, was dissolved. It had no longer any
more legislative power over the District than Maine or Georgia had.
Historically, we may talk about the laws of Maryland, as they once
existed here; but practically, and as a matter of strict law and fact,
her laws were no longer known within the District. The laws which
governed the people of this District after the 27th day of February,
1801, were the laws of Congress, and not the laws of Maryland.
To show that this part of the District passed out from under the
government of Maryland, and came under the government of the United
States, I refer to _Reilly, appellant_, vs. _Lamar et al._, 2 Cranch,
344; 1 Cond. Rep. 322, where it is said, “By the separation of the
District of Columbia from the State of Maryland, the residents in that
part of Maryland which became a part of the District, ceased to be
citizens of the state.” It was held, in that case, that a citizen of
the District of Columbia could not be discharged by the insolvent law
of Maryland.
A citizen of the District of Columbia cannot maintain an action in the
circuit court of the United States out of the District, he not being
a citizen of the state within the meaning of the provision of the law
of the United States regulating the jurisdiction of the courts of the
United States. _Hepburn et al._ vs. _Ellzey_, 2 Cranch, 445; 1 Cond.
Rep. 444. See also _Loughborough_ vs. _Blake_, 5 Wheat. 317, and _Levy
Court of Washington_ vs. _Ringgold_, 5 Peters, 451.
4. The next point of inquiry is, _What is the legal force and effect,
upon the subject of slavery, of the act of Congress of 1801, before
cited?_ Its words are, “That the laws of the state of Maryland, as they
now exist, shall be continued in force in that part of said District
which was ceded by that state to the United States,” &c. And here, I
acknowledge that the operation of this clause is precisely the same as
though Congress had transcribed all the Maryland laws, word for word,
and letter for letter, into its own statute book, with the clause
prefixed, “Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,” and the President
of the United States had affixed his signature thereto. I acknowledge
further, that the laws of Maryland had legalized slavery within the
state of Maryland, and had defined what classes of persons might be
held as slaves therein.
But it by no means follows, because Congress proposed to reënact, in
terms, for this District, all the laws of Maryland, that, therefore, it
did reënact them. It does not follow, that because two legislatures use
the same words, that the words must necessarily have the same effect.
It makes all the difference in the world, whether words are used by
one possessed of power, or by one devoid of power. Congress might pass
a law in precisely the same words as those used by the Parliament of
Great Britain, and yet the law of Congress be invalid and inoperative,
while the act of Parliament would be valid and binding. We have a
written constitution; Great Britain has no written constitution. The
British Parliament, on many subjects, has an ampler jurisdiction than
the American Congress. The law of Congress might be unconstitutional
and void, while that of the British Parliament, framed in precisely the
same language, might be constitutional and binding.
So the law of Maryland might be valid under the constitution of
Maryland, and, therefore, binding upon the citizens of Maryland; while
the law of Congress, though framed in precisely the same words, would
be repugnant to the constitution of the United States, and therefore
have no validity.
Now this is precisely the case before us. Congress, in attempting
to reënact the Maryland laws, to uphold slavery in this District,
transcended the limits of its constitutional power. It acted
unconstitutionally. It acted in plain contravention of some of the
plainest and most obvious principles consecrated by the constitution.
If so, no one will dispute that its act is void. I do not deny, then,
that Congress used words of sufficient amplitude to cover slavery; but
what I deny is, that it had any power to give legal force to those
words.
5. My next proposition, therefore, is this: _That as Congress can do
nothing excepting what it is empowered to do by the constitution, and
as the constitution does not empower it to establish slavery here, it
cannot establish slavery here, nor continue it._
Where is there any _express_ power given to Congress by the
constitution to establish slavery? Where is the article, section, or
clause? I demand to have the title shown. Thousands of human beings
are not to be robbed of all their dearest rights, and they and their
children, forever, by strained constitutions, or apocryphal authority,
doomed to bondage. Will those who say that Congress cannot establish a
banking institution by construction, nor aid internal improvements,
nor enact a tariff,--will they say that Congress can make a man a
slave, and all his posterity slaves, by construction?
Nor can any power to establish slavery be deduced from the 18th clause
of the 8th section of the 1st article of the constitution, which gives
Congress power “to make all laws which shall be necessary and proper
for carrying into execution” the powers that are granted.
What power is granted to Congress, for the exercise of which the
establishment of slavery in this District is a necessary means or
a preliminary? Congress has power to lay and collect taxes; to
borrow money; to regulate commerce; to establish uniform rules of
naturalization; to coin money; to punish counterfeiters; to establish
post offices and post roads; to promote the progress of science and
the arts; to establish courts; to define and punish piracies on the
high seas; to declare war; to raise and support armies; to provide and
maintain a navy; to organize and maintain a militia; and so forth,
and so forth. But to what one of all these powers is the power to
establish slavery in the District of Columbia a necessary incident? If
slavery in the District of Columbia were to cease to-day, could not the
government continue to exercise every function which it has heretofore
exercised? If so, then the existence of slavery in this District is not
“necessary” to the exercise of any of the expressly granted powers. I
call upon any gentleman to name any one power of this government which
cannot be exercised, which must necessarily cease, if slavery should
cease to be, in this District of Columbia? “I pause for a reply.”
Well, then, if a power to establish slavery in this District is not
among the granted powers, and if it is not necessary for the exercise
of any one of the granted powers, then it is--no where;--it does not
exist at all. No power of Congress, then, exists, either for the
creation or for the continuance of slavery in this District; and all
the legislation of Congress upon this subject is beyond or against the
constitution.
Let me illustrate this in another way. Suppose there had been a
religious establishment in Maryland at the time of the cession;
suppose, under the auspices of Lord Baltimore, the Catholic religion
had been established as the religion of the state; and that, in order
to punish heresy and secure conformity to the religion of the state,
an inquisition had been founded, and that the seat of that inquisition
had been within the limits of the District of Columbia, at the time
of the cession; could Congress, in the absence of all express or
implied authority on the subject of establishing a state religion,
have upheld the Catholic religion here, and appointed the officers of
the inquisition to administer it? The idea is abhorrent to the whole
spirit of the constitution. But Congress had as much power to establish
a national religion here, in the absence of all express or implied
authority to do so, as to establish slavery here.
Congress, then, does not and cannot legalize slavery in this District.
It found slavery in existence in the states; and it does not abolish
it, or interfere with it, because it has no power of “exclusive
legislation” in them. But Congress has as much right to go into any
state and abolish slavery there, as any state, even Virginia or
Maryland, has to come into this District with its laws and establish
slavery here. I suppose that no jurist will contend that Congress could
have passed the act of 1793, for the recapture of fugitive slaves, had
it not been for the third clause in the second section of the fourth
article of the constitution, which provides for the redelivery of a
fugitive slave, on the claim of his master. By this article in the
constitution, the case of _fugitive_ slaves only is provided for. If a
master voluntarily carries his slave into a free state, and the slave
departs from his possession, he cannot reclaim him. Why not? Why cannot
Congress pass a law, that if a man takes a dozen slaves to Boston, and
they there see fit to strike for wages, and to leave his possession
because their terms are not complied with,--why is it, I ask, that
Congress cannot pass a law authorizing their seizure and delivery into
the master’s hands? The reason is, that the constitution has conferred
upon Congress no such express power, nor is any such power implied as
being necessary to the exercise of any power that is expressed. And
if Congress cannot so much as restore a slave to a master, who has
voluntarily carried him into a free state, how can it continue slavery
in this District, after Maryland has ceded it to this government,
whose fundamental, organic law gives it no power to create or continue
slavery here?
Suppose Maryland had ceded her share of the District to Massachusetts,
would not every slave in it have been instantaneously free by the
constitution of Massachusetts? They would have been transferred to a
free jurisdiction,--just as much as an individual owner of a slave
transfers him to a free jurisdiction, when he voluntarily takes him to
the north. The legal existence of slavery was annulled in this District
when Congress exercised its “exclusive” power over it, just as much as
the debtor’s right to be discharged under the Maryland bankrupt law was
annulled.
But I go further than this; and I say that the constitution not only
does not empower Congress to establish or continue slavery in this
District, but again and again, by the strongest implications possible,
it prohibits the exercise of such a power.
In regard to this whole matter of slavery, the constitution touches the
subject with an averted face. The abhorred word “_slave_” is nowhere
mentioned in it. The constitution is ashamed to utter such a name.
The country, coming fresh from that baptism of fire,--the American
Revolution,--would not profane its lips with this unhallowed word.
Hence, circumlocution is resorted to. It seeks to escape a guilty
confession. Like a culprit, in whom some love of character still
survives, it speaks of its offence without calling it by name. It uses
the reputable and honorable word “persons,” instead of the accursed
word “slaves.” As the Tyrian queen, about to perpetrate a deed which
would consign her character to infamy, called it by the sacred name of
“marriage,” and committed it,--
“_Hoc prætexit nomine culpam_;”
so the constitution, about to recognize the most guilty and cruel
of all relations between man and man, sought to avert its eyes from
the act, and to pacify the remonstrances of conscience against every
participation in the crime, by hiding the deed under a reputable word.