maintain that there is not only no power, express or implied, in the
constitution authorizing Congress to create or continue slavery in this
District, but that it is debarred and prohibited from doing so, again
and again.
I suppose no one will deny that the positive prohibitions, against
the exercise of certain enumerated powers, apply to Congress, when
legislating for this District, just as much as when legislating for
the union at large. This doctrine has recently been strongly asserted
by Mr. Calhoun in the Senate of the United States; and, as I would
gladly produce conviction in southern minds, I make use of this
southern authority. He affirms that Congress, in legislating for
the territories, “is subject to many and important restrictions and
conditions, of which some are expressed and others implied. Among
the former may be classed all the general and absolute prohibitions
of the constitution; that is, all those which prohibit the exercise
of certain powers under any circumstances. In this class is included
the prohibition of granting titles of nobility; passing _ex post
facto_ laws and bills of attainder; the suspension of the writ of
_habeas corpus_, except in certain cases; making laws respecting the
establishment of religion, or its free exercise, and every other of
like description.”
Will any man say that Congress can pass an _ex post facto_ law for this
District, and defend itself by referring to its power of “exclusive
legislation” over it? Can Congress pass a bill of attainder corrupting
the blood of an inhabitant of this District, or repeal or suspend
at any time his right to a writ of _habeas corpus_, or establish a
religion here, or interdict the free exercise thereof? No jurist, no
statesman, will pretend it.
But there is another prohibition in the constitution every whit as full
and explicit as any of these. The fifth article of amendment declares
that “no person shall be deprived of life, liberty, or property,
without due process of law.”
Here the constitution uses the word “person,”--the most comprehensive
word it could find. “No PERSON shall be deprived of life, liberty,
or property, without due process of law.” Now, what does this word
“person” mean? Or who, under the constitution, is such a “person” as
cannot be deprived of life, liberty, or property, by virtue of an act
of Congress, _without due process of law_? Let us take our definition
of the word “_person_” from the constitution itself. “No _person_
shall be a representative, who shall not have attained the age of
twenty-five years,” &c., (see 2d clause of the 2d section of the 1st
article.) “Representatives and direct taxes shall be apportioned
among the several states which may be included within this union,
according to their respective numbers, which shall be determined by
adding to the whole number of free _persons_, including those bound to
service for a term of years, and excluding Indians not taxed, three
fifths of all other _persons_.” (3d clause of the same section.) “No
_person_ shall be a senator who shall not have attained the age of
thirty years,” &c. (1st art., 3d section, 3d clause.) “No _person_
shall be convicted [of an impeachable offence, by the Senate] without
the concurrence of two thirds.” (1st art., 3d section, 6th clause.)
“No _person_ holding any office under the United States, shall be
a member of either House, during his continuance in office.” (1st
art., 6th section, 2d clause.) “The migration or importation of such
_persons_ as any of the states now existing shall think proper to
admit, shall not be prohibited,”--“but a tax, or duty, may be imposed
on such importation, not exceeding ten dollars for each _person_,” &c.
(1st art., 9th section, 1st clause.) “No _person_ holding any office
of profit or trust,” “shall accept any present,” &c. (1st art., 9th
section, 8th clause.) “No _person_ holding an office of trust or profit
under the United States, shall be appointed an elector.” (2d art.,
1st section, 2d clause.) “The electors shall meet in their respective
states and vote by ballot for two _persons_,” &c. “The _person_
having the greatest number of votes shall be the President,” &c. “If
no _person_ have a majority,” &c. “In every case, after the choice
of the President, the _person_ having the greatest number of votes
of the electors, shall be Vice President.” (2d art., 1st section, 2d
clause.[7]) “No _person_ except a natural born citizen,” &c., “shall
be eligible to the office of President; neither shall any _person_
be eligible to that office, who shall not have attained the age of
thirty-five years,” &c. “No _person_ shall be convicted of treason,
unless on the testimony of two witnesses,” &c. (3d art., 3d sect., 3d
clause.) “A _person_ charged in any state with treason,” &c. (4th art.,
2d section, 2d clause.) “No _person_ held to service or labor,” &c.
(4th art., 2d section, 3d clause.)
Now, it will be seen from all this, that the word “_person_” is used in
the constitution in the most comprehensive sense. It embraces Indians,
if taxed; it embraces natives of Africa; it embraces apprentices and
slaves, or those held to service or labor; and it embraces every
citizen, from the humblest to the highest, from the most true to the
most treasonable. It embraces all, from the slave to the President of
the United States. And after having used the word to embrace all these
classes and descriptions of men, it proceeds to say, in an amendment,
that “_no_ PERSON _shall be deprived of life, liberty, or property,
without due process of law_.” (_Amendment, Article 5._)
The law of Maryland ceded this District to Congress, “in full and
absolute right, as well of soil as of person, residing, or to reside
therein.”
Now Congress, in attempting to legalize slavery in the District of
Columbia, has provided in terms, by its adoption of the Maryland laws,
that one man may hold another man in bondage in this District, “WITHOUT
DUE PROCESS OF LAW,” and indeed without any process of law; may hold
him in bondage from his birth; may beget him, and still hold him and
his posterity in bondage. “Process of law” means legal proceedings and
a jury trial. It is a phrase that does not pertain to the legislature,
but to the courts. It means the institution of a suit in civil matters;
the finding of an indictment, or an information in criminal ones;
the issuing of subpœnas for witnesses, &c., in both. (See _Art. 6 of
Amendments to the Constitution_.)
Now, a slave is a _person_ deprived of his liberty and property,
without any process of law. There has been no “due” process of law to
reduce him to this miserable condition; there has been no process of
law at all. A slave, therefore, in this District, is deprived of his
liberty and property, in pursuance of the laws of Congress, without
_any_ legal process whatever, and therefore in flagrant contradiction
of the fifth article of the Amendments to the Constitution of the
United States. Hence, the act of Congress, purporting to continue the
Maryland laws respecting slavery in this District, was, and is, and
forever must be, until the constitution is altered, null and void.
There is a striking historical fact in regard to the phraseology of
this fifth article of amendment. Its substance was proposed by several
states. Virginia proposed it in the following words: “No _freeman_
ought to be taken, imprisoned, or disseized of his freehold liberties,
privileges, or franchises, or outlawed or exiled, or in any manner
destroyed or deprived of his life, liberty, or property, but by the
law of the land.” (See _3 Elliot’s Debates, 593--Proceedings of June
27, 1788_. _Also, 4 Elliot’s Debates, 216, for the same amendment, as
proposed by the State of New York_.)
The Virginia amendment used the word “freeman.” It proposed that no
“freeman” should be deprived, &c. The New York amendment used the word
“_person_.” And the amendment was adopted and ratified, almost in the
words of the New York phraseology. The word _person_ was chosen, and
therefore Congress has no constitutional power to deprive of life,
liberty, or property, _without due process of law_, any being embraced
in the definition of that word. By its own selection of words it is
debarred not merely from depriving a “_freeman_,” but from depriving a
“_person_” of this right.
When Congress attempted to legalize and perpetuate slavery in this
District, it violated the fourth article of the Amendments, which
declares “the right of the people to be _secure_ in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.” If Congress cannot authorize domiciliary searches and
seizures against a single individual, can it degrade a whole race
of men to the condition of slaves, and then say that _because they
are slaves_, they shall not be “secure;” but shall be at the mercy
of any alleged master, in regard to their persons,--to be commanded
and restrained, to be bought and sold? If Congress cannot authorize
searches and seizures of houses, papers, and effects, can it get round
the constitution, by saying we will create a class of persons who shall
have no power of owning any houses, papers, or effects, to be searched
or seized?
Again; Congress shall pass “no bill of attainder.” What is a bill
of attainder? It is a bill that works corruption of blood. It
disfranchises its object. It takes away from him the common privileges
of a citizen. It makes a man incapable of acquiring, inheriting, or
transmitting property; incapable of holding office, or acting as
attorney for others; and it shuts the door of the courts against him.
These disabling consequences may descend to a man’s children after him,
though this is not necessary. Now, to pass such a bill is a thing which
Congress cannot do. But when Congress undertook to legalize slavery in
this District, it undertook to do all this, and worse than all this.
It attainted, not individuals merely, but a whole race. A slave is an
outlaw; that is, he cannot make a contract; he cannot prosecute and
defend in court; property cannot be acquired by him, or devised to
him, or transmitted through him. A white man may give his testimony
against him, but he cannot give his testimony against a white man. He
is despoiled of his _liberam legem_,--his birthright. He cannot own
the food or clothes he has earned. What is his, is his master’s. And
this corruption of blood, which the law of slavery works, does not stop
with the first, nor with the second generation,--not with the tenth
nor the ten thousandth; but by the theory of the law, goes on forever.
Bills of attainder, during the history of the worst periods of the
world, have applied to individuals only, or at most to a family. But
here, Congress, in defiance of the constitution, has undertaken to
establish a degraded caste in society, and to perpetuate it through all
generations. Now, can any reasonable man for a moment suppose that the
constitution meant to debar Congress from passing acts of attainder
against individuals, but to permit it to pass wholesale, sweeping laws,
working disfranchisement of an entire race, and entailing degradation
forever?
Let us look at another general prohibition of the constitution: “No
title of nobility shall be granted by the United States.” (art. 1, §
9, clause 8.) “The distinction of rank and honors,” says Blackstone,
“is necessary in every well-governed state, in order to reward such
as are eminent for their services to the public.” But the framers of
the constitution did not think so; the people of the United States
did not think so; and therefore they incorporated a provision into
their organic law that “no title of nobility should be granted.” But
it matters not whether the favored individual is called “Marquess”
or “Master.” If he is invested by the government with a monopoly of
rights and privileges, in virtue of his title and its legal incidents,
without any corresponding civil duties, he belongs to an order of
nobility,--he is a nobleman. Mr. McDuffie defends the institution of
slavery, on the ground that it establishes the highest of all ranks
and the broadest of all distinctions between men. He says no nation
has yet existed which has not in some form created the distinction of
classes,--such as patrician and plebeian, or citizen and helot, or
lord and commoner,--and that the institution of slavery stands here
instead of these orders, and supersedes them all, by being equivalent
to them all. Now, is it not inconceivable that the constitution
should interdict the bestowment of special favors to distinguished
individuals for meritorious services, and yet should authorize Congress
to confer the highest of all earthly prerogatives,--the prerogative
over property, liberty, and volition itself, upon one class of men over
another class of men? Yet if Congress can create or legalize slavery,
it can establish the worst order of nobility that ever existed. It can
give to one class of men the power to own and to control, to punish and
to despoil another class; to sell father, mother, wife, and children,
into bondage. To prohibit Congress from doing one of these things, and
to permit it to do the other, is straining at a gnat and swallowing a
camel,--a whole caravan of camels!
But the same clause in the constitution which gives Congress the
power of exclusive legislation over this District, also empowers it
“to exercise like authority over all places purchased by the consent
of the legislature of the state, in which the same shall be, for the
erection of forts, magazines, arsenals, dock-yards, and other needful
buildings.” If, then, Congress has any constitutional power to legalize
slavery in this District, it has the same power to legalize it, (that
is, to create it,) in all places in the state of Massachusetts, or New
York, or any other, where it may have obtained territory from a state
for a fort, magazine, arsenal, dock-yard, or other needful building.
Where it has obtained land in the middle of a city,--Philadelphia, New
York, Boston, or Chicago,--for a custom-house, it may create slavery
there. The power to do this is conferred in precisely the same words as
the power by which it has been held that slavery can be established in
the District of Columbia.
And now I will occupy the few minutes that are left me, in considering
what seems to me the only plausible argument that can be urged in favor
of the constitutionality of slavery in this District.
It may be said, that when a territory is obtained by one nation from
another, whether by conquest or by treaty, the laws which governed the
inhabitants at the time of the conquest or cession, remain in force
until they are abrogated by the laws of the conquering or purchasing
power. For this principle, the authority of Lord Mansfield, in the case
of _Campbell_ v. _Hall_, 1 Cowper, 208, may be cited. The decision of
our own courts are to the same effect. (See _United States, appellant_,
vs. _Juan Percheman_, 2 Gallison’s Reports, 501; _Johnson_ vs.
_McIntosh_, 7 Peters, 51; 8 Wheat. 543.) I do not dispute the authority
of this case. But it does not touch the question I am arguing; or, so
far as it bears upon it at all, it confirms the views I would enforce.
The principle is, that the existing laws remain in force _until_
they are abrogated. I agree to this. But in the case of the District
of Columbia, there was a special agreement between Maryland and the
United States, that as soon as the United States should legislate for
the District, the laws of Maryland, _as such_, should cease to be
operative here. On the 27th day of February, 1801, therefore, all the
rights which the citizens of this District possessed, they possessed
under the law of Congress, and not under the law of Maryland. On the
day preceding, a citizen could have voted for governor or other state
officers of Maryland; but on the day following, he could no longer
vote for any such officer. On the day preceding, he could have voted
for electors of President and Vice President of the United States;
but on the day following, he was bereft of all such right of the
elective franchise, and must accept such officers and legislators as
the rest of the country might choose to elect for him. On the day
preceding, he might, in the character of an insolvent debtor, have
been discharged under the insolvent laws of Maryland; but on the day
following, he could no longer be so discharged. On the day preceding,
he might have been required, though a justice of the peace of the State
of Maryland, to perform militia duty; but on the day following, if
commissioned as a justice of the peace of the District of Columbia, he
could not be compelled to perform militia duty, because he would, in
such case, be an officer of the United States. On the day preceding,
he might have sued in the circuit court of the United States, as being
a citizen of Maryland; but, on the day following, he could not so sue,
because he had ceased to be a citizen of a state. Thus the change of
jurisdiction over him deprived him of some privileges, and relieved him
from some burdens. It deprived him of these privileges, and relieved
him from these burdens, notwithstanding the act of Congress had said,
in unambiguous words, “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.” But the
most momentous change which was wrought by the transfer of the citizen
from the jurisdiction of Maryland to the jurisdiction of the United
States, was that which made it impossible for him any longer to hold
a slave. Under the laws of Maryland, he might have held his slave,
for her statutes had legalized slavery; but under the constitution of
the United States, he could not hold a slave; for that constitution
had given Congress no power to legalize slavery in this District, and
had gone so far as to make prohibitions against it. His right to hold
slaves then expired, or fell, like his right to vote for United States’
officers, or for state officers, or his right to be discharged under
the Maryland insolvent law, or his right to sue in certain courts, &c.,
&c.
One point more, sir, and I have done. Why, says my opponent, did not
the right to hold slaves continue after the change of jurisdiction,
as well as the right to hold horses? For the plainest of all reasons,
I answer: for the reason that a horse is _property_ by the universal
consent of mankind, by the recognition of every civilized court in
Christendom, without any positive law declaring it to be the subject of
ownership. But a _man_ is not property, without positive law; without
a law declaring him to be the subject of ownership. There was such a
positive law in Maryland; but Congress, for want of constitutional
authority, could not enact, revive, or continue it. And such I verily
believe would have been the decision of the Supreme Court of the
United States, had the question been carried before them immediately
subsequent to the act of 1801. But now, as slavery has existed
practically in this District for half a century, it is proper to pass
a law abolishing it. It is better, under the present circumstances,
that slavery should be abolished here by a law of Congress, than by the
decision of a court; because Congress can provide an indemnity for the
owners, and let the slaves go free. But should it be abolished by a
legal adjudication, every slave would be hurried away to the south, and
sold, he and his descendants, into perpetual bondage.
In justice, then, to the north, which ought not to bear the opprobrium
of slavery in this capital of the nation; in justice to the slaves who
are here held in bondage against legal, as well as natural right; and,
in more than justice to the masters, whose alleged claims I am willing,
under all the circumstances, to satisfy, let a law be forthwith passed
for ascertaining and paying the market value of the slaves, and for
repealing all laws which uphold slavery in this District.
FOOTNOTES:
[5] Lecture on the North and South. Delivered in College Hall, January
16, 1849, before the Young Men’s Mercantile Library Association of
Cincinnati. By Ellwood Fisher.
[6] An anecdote, which I have on the best authority, is not
inappropriate. A few years ago, a citizen of the State of Connecticut
absconded, leaving a wife behind him. He went to the State of
Mississippi, where he took a colored woman as his concubine, had
children by her, acquired property, and died. The wife and heirs in
Connecticut claimed the property acquired in Mississippi. The claim was
contested. The honorable HENRY S. FOOTE, now a senator from that state,
conducted the defence. He denied the title of the wife in Connecticut,
affirmed that of the concubine and her children in Mississippi, and
cited the case of Abraham and Sarah and Hagar, to prove the legality
and the propriety of the concubinage, and the divine authority for it.
And surely, if the Bible argument in favor of slavery is sound, Mr.
FOOTE’S argument in favor of concubinage is equally so.
[7] This clause in the constitution is annulled; but for all purposes
of determining the true interpretation of words, it is as good as ever.
SPEECH
DELIVERED IN THE UNITED STATES HOUSE OF REPRESENTATIVES. FEBRUARY
15, 1850, ON THE SUBJECT OF SLAVERY IN THE TERRITORIES, AND THE
CONSEQUENCES OF A DISSOLUTION OF THE UNION.
MR. CHAIRMAN;
Ever since the organization of this House,--before its organization,
and even in a preliminary caucus that preceded the commencement of
the session, southern gentlemen have pressed the cause, not only of
human slavery, but of slavery extension, upon us. From motives of
forbearance, and not from any question as to our rights, we of the
north have maintained an unbroken silence. The time has surely come
when the voice of freedom should find an utterance. Would to God that
on the present occasion it might find an abler defender than myself,
although if my ability to defend it were equal to the love I bear it,
it could ask no stronger champion.