Some persons look upon the veneration with which the people of these
United States regard the Constitution as savoring of superstition. It is
at least a wholesome superstition, which cannot be disturbed without risk.
When a man, in calm moments of deliberate reflection, has settled and
adopted the principles of ethics and morality which ought to govern his
life, and when, under the pressure of urgent exigency, or in moments of
eager excitement, his view of their truth or value undergoes a sudden
change, it is not safe to give way to such influence. He would evince
wisdom in calling to mind, that, in hours of tranquil judgment, with no
passion to blind and no impulse of the moment to urge beyond reason, he
_had_ adopted certain principles of action, for guidance and safety.
Doubtless age may correct, and ought to correct, the errors of youth. But
when we change a life-rule, it should be from a matured conviction, that,
on general principles, the correction is just and proper; not because it
would afford relief or satisfaction for the time being, or prove
convenient for some special purpose.
So of the Constitution of the United States. Of fallible because human
origin, it is imperfect. A rule of political action in a progressive
world, it was by its founders properly made subject to amendment. At the
first session of the first Congress ten amendments were adopted; two have
been added since; and experience has approved this action.
That other amendments may hereafter be necessary and proper it would be
presumptuous to deny. But we ought to touch the ark of our political
testimony with careful and reverent hand.
All legislative bodies are liable to sudden and wayward impulses. To these
the Congress of our young country is more exposed than the Parliaments or
Chambers of older nations. It would have been very unsafe to trust a
Congressional majority with the power of amending the Constitution.
Difficulties and delays were properly put in the way of exercising such a
prerogative. To two-thirds of both houses, or to a convention called by
the legislatures of two-thirds of the several States, was granted the
power of proposing amendments; while the power to ratify these was not
confided to less than to the legislatures, or to the conventions, of
three-fourths of the States composing the Union.
To alter the Constitution in any other way--as by the consent of a
majority only of the several States--would be a revolutionary act.
Doubtless revolutionary acts become a justifiable remedy on rare and great
occasions, as in 1776; but they are usually replete with danger. They are
never more dangerous than when employed by one section of a confederacy
against another, weaker section of the same. To the stability of
government, it is necessary that the rights of minorities should be
strictly respected. The end does not necessarily justify the means. "No
example," says an eminent and philosophical writer, "is more dangerous
than that of violence employed for a good purpose by well-meaning men."[6]
[Footnote 6: "Il n'y a pas de plus dangereux exemple que celui de
la violence exercée pour le bien et par les gens de
bien."--"_L'Ancien Régime et la Révolution_," par Alexis de
Tocqueville, Paris, 1856, p. 310.]
To such considerations has it been, in a measure, due that the people of
the United States, with as much unanimity as usually characterizes any
national decision, have held back, until now, from following the example
of the civilized nations of Europe in emancipating their slaves. Until the
Secessionists levied war against the Union, not the Democratic party
alone, but the mass of the Republican party also, assented to the
declaration in Abraham Lincoln's Inaugural, that they had "no purpose to
interfere, directly or indirectly, with the institution of Slavery in the
States where it exists." It had never been possible to obtain the votes of
three-fourths of the States in favor of emancipation; and a large majority
of those who held human servitude to be a moral wrong had looked upon its
toleration among our neighbors of the South as an evil of less magnitude
than the violation of the Constitution.
Though the wisdom of the ablest statesmen of the Revolution, without
distinction of sections, recognized negro slavery as an iniquity and as a
political element fraught with inevitable danger in the future, yet the
evils and the dangers which are inseparably connected with that element
have never been so clearly seen, have never made themselves so terribly
apparent, as in the course of this war.
The conviction that Slavery is a standing menace to the integrity of the
Union and the one great obstacle to peace gathers strength so rapidly from
day to day, that many men are adopting the opinion, that it must needs be
extirpated, if even at the cost of a revolutionary act.
It would be a misfortune, if this were the alternative. It is easy to pass
the limit of regulated authority, but impossible to estimate the dangers
we may encounter when that guardian limit is once transgressed. We may
resolve that we will go thus far and no farther. So thought the honest and
earnest Girondists of revolutionary France; but the current to which they
had first opened a passage swept them away. Though the experiment succeed
at last, a long Reign of Terror may overwhelm us ere success is reached.
And thus it is a matter of surpassing interest to determine whether the
present stupendous insurrectionary convulsion has brought about a state of
things under which, in strict accordance with the Constitution as it is,
we may emancipate all negroes throughout the Union who are now held in
involuntary servitude. This question I propose to discuss.
* * * * *
Every one is familiar with the words in which the Constitution, while not
naming Slavery, recognizes, under a certain phase, its existence, and aids
it, under certain circumstances, to maintain the rights to involuntary
labor which, under State laws, it claims; thus:--
"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 provision. 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.
The first class of claims were found chiefly in Northern States; the
second chiefly in Southern. There was a great disparity between the
numbers of the two classes. While the claims to service or labor for years
numbered but a few thousands, there were then held to service or labor for
life upwards of six hundred thousand persons: and the number has since
increased to about four millions.
The constitutional provision is, that persons from whom under State laws
service or labor is due shall not be exonerated from the performance of
the same by escaping to another State. The apprentice, or the slave,
shall, in that case, on demand of the proper claimant, be delivered up.
Such a provision clearly involves the recognition of certain rights of
property; but of what kind?
Is the ownership of one human being by another here involved? Is the
apprentice, or the slave, recognized in this clause as an article of
merchandise?
State laws regulating apprenticeship and slavery may give to the master of
the apprentice, or of the slave, the custody of the person and the right
of corporal punishment, in order the better to insure the performance of
the labor due. These laws may declare that an apprentice, or a slave, who
strikes his master, shall suffer death. They may provide that the
testimony of an apprentice, or of a slave, shall not be received in any
court of justice as evidence against his master. They may make the claims
to service or labor, whether for years or for life, transferable by
ordinary sale. They may declare such claims to be, under certain
circumstances, of the nature of real estate. They may enact that these
claims shall be hereditary, both as regards the claimant and the person
held to service, so that heirs shall inherit them,--and also so that the
children of apprentices, or of slaves, shall, in virtue of their birth, be
apprentices or slaves. But State laws or State constitutions, whatever
their provisions, cannot modify the Constitution of the United States. The
Supreme Court has decided that "the Government of the Union, though
limited in its power, is supreme within its sphere of action"; and again,
that "the laws of the United States, when made in pursuance of the
Constitution, form the supreme law of the land, anything in the
constitution or laws of any State to the contrary notwithstanding."[7]
[Footnote 7: "_McCulloch against the State of Maryland._" 4
Wheaton, _Rep._, p. 316.]
Therefore State laws or constitutions can neither determine the
interpretation of the Federal Constitution nor explain its intent. It is
to be interpreted by the words, fairly and candidly construed, of its
framers.
In the provision under consideration the phraseology is remarkable. The
word _slave_, though then in common use, to designate a negro held to
service or labor for life, is not employed. It is impossible to believe
that this peculiarity was accidental, or to overlook the inevitable
inference from it. This provision does not recognize slavery except as it
recognizes apprenticeship. African slavery, according to the expressly
selected words, and therefore according to the manifest intent, of the
framers of the Constitution, is here recognized as a claim to the service
or labor of a negro: nothing more, nothing else.
It avails nothing to allege, even if it were true, that in 1787, when
these words were written, a negro was commonly considered property.
Chief-Justice Taney, delivering the decision of the Supreme Court in the
Dred Scott case, asserts that in the thirteen colonies which formed the
Constitution "a negro of the African race was regarded as an article of
property." This may or it may not have been true of a majority in those
days. True or not, it refers only to the opinions of individual colonists;
and these cannot be received as a basis of construction for the words, nor
can they rebut the plain intent, of a constitutional provision. It is not
what individual colonists believed, but what the framers of the
Constitution incorporated in that instrument, that we have to deal with.
They avoided the use of the word slave. They incorporated the words
"person held to service or labor." They admitted the claim to service or
labor: none other: a claim (regarded in its constitutional aspect) in the
nature of what the law calls a _chose in action_,--or, in other words, a
thing to which, though it cannot be strictly said to be in actual
possession, one has a right.
In common parlance we employ words, in connection with Slavery, which
imply much more than such a claim. We say slave-holder and slave-owner; we
speak of the institution of Slavery: but we do not say apprentice-holder
or apprentice-owner; nor do we speak of the institution of Apprenticeship.
The reason, whether valid or invalid, for such variance of phraseology in
speaking of the two classes of claims, is not to be found in any
admission, express or implied, in the provision of the Constitution now
under consideration. In it the framers of that instrument employed one and
the same phrase to designate the master of the apprentice and the master
of the slave. Both are termed "the party to whom service or labor may be
due."
Is there any other clause in the Constitution in which a distinction is
made between the apprentice and the slave? There is one, and only one. In
determining the number of inhabitants in each State as a basis of
representation and taxation, it is provided that the whole number of
apprentices shall be included, while three-fifths only of the slaves are
to be taken into account. But the wording of this clause is especially
noteworthy. It reads thus:--
"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."
To avoid mistakes, it was deemed necessary to include apprentices by
express specification. Why this? Every one would have felt it to be
absurd, if the words had been, "the whole number of free persons,
including farm-laborers." But why absurd? Because persons engaged in free
labor are, beyond question, free persons. Not so those "bound to service."
While so bound, apprentices may be considered not free; when the "term of
years," and with it the bondage to service, expires, they become free, or,
as the common phrase is, "their own masters." It was necessary and proper,
therefore, to specify whether, in the enumeration of inhabitants, they
were to be estimated as free persons or as persons not free.
But would there be any fairness in construing this clause into an
admission, by inference or otherwise, that an apprentice, while "bound to
service," is a slave? Clearly not. He is a person not free for the time,
because another has a legal claim to his service or labor. The
Constitution admits this: nothing more.
And so of slaves. "Other persons" they are called, in contradistinction to
"free persons"; therefore persons not free: and properly so called, seeing
that, like the apprentice before his term expires, they are "bound to
service," and that, unlike him, they remain thus bound for life.
But unless we admit that the apprentice, bound to service for a season, is
a slave during that season, we cannot justly allege, that, by this
provision of the Constitution, the negro, held to service or labor for
life, is recognized as a slave.
A mere technical view of a great political question is usually a
contracted one, of little practical value, and unbecoming a statesman.
"The letter killeth, but the spirit giveth life." Yet we must not mistake
for technicality a careful interpretation, distinctly warranted by the
terms employed, of a public instrument. Every public instrument, by which
the governed delegate powers to those who govern, should be strictly
construed.
I am not arguing, that the men who framed the Constitution did not regard
negroes held to service or labor as slaves. I am not arguing that
temporary claims, to the number (let us suppose) of forty or fifty
thousand, may, for a moment, compare in importance with life-long claims,
to the number of four millions; or that it is safe or proper to legislate
in regard to the latter, involving as they do vast industrial interests,
with as light consideration as might suffice in enacting regulations for
the former. I am not arguing that a political element, which has gradually
assumed proportions so gigantic as has American Slavery, can, with any
safety or propriety, be dealt with, except after the gravest deliberation
and the most sedulous examination, in advance, of every step we propose to
take. I allege nothing of all this.
What I assert is, that neither the number of slaves nor the magnitude of
the interests involved can properly influence the judgment in determining
the just construction of a clause in the Constitution, or properly set
aside a fair deduction from the wording of that clause as to its true
spirit and intent. What I assert is, that the framers of the Constitution,
in studiously avoiding the employment of the word slave, undeniably
abstained from admitting into that instrument anything which the use of
that word might have implied. Therefore the Constitution does not
recognize the ownership of one human being by another. In it we seek in
vain any foundation for the doctrine declared by Chief-Justice Taney, that
persons held to service or labor for life are articles of property or
merchandise.
In one restricted sense, and only in one, is slavery recognized by the
Constitution of the United States: as a system under which one man may
have a legal claim to the involuntary labor of another.
Therefore the question, whether Congress has the constitutional right to
emancipate slaves, resolves itself into this:--Can Congress
constitutionally take private property for public use and destroy it,
making just compensation therefor? And is there anything in the nature of
the claim which a master has to the service or labor of an apprentice, or
of a slave, which legally exempts that species of property from the
general rule, if important considerations of public utility demand that
such claims should be appropriated and cancelled by the Government?
This is the sole issue. Let us not complicate it by mixing it up with
others. When we are discussing the expediency of emancipation and of
measures proposed to effect it, it is proper to take into account not only
State constitutions and State legislation, but also the popular conception
of slavery under the loose phraseology of the day, and public sentiment,
South as well as North, in connection with it. But when we are examining
the purely legal question, whether, under the Constitution as it is and
under the state of public affairs now existing, Congress has the power to
enact emancipation, we must dismiss popular fallacies and prejudices, and
confine ourselves to one task: namely, to decide, without reference to
subordinate constitutions or legislative action, what the supreme law of
the land--the Constitution of the United States--permits or forbids in the
premises.
It will be admitted that Congress has the right (Amendments to
Constitution, Article 5) to take private property, with just compensation
made, for public use. And it will not be argued that a claim of one
inhabitant of the United States to the service of another, whether for a
term of years or for life, is property which has been constitutionally
exempted from such appropriation. It is evident, that, if a claim to the
service of a slave cannot constitutionally be so taken and cancelled,
neither can the claim to the service of an apprentice.
On the other hand, it is to be conceded, as a feature of the utmost
importance in this case, that, when property of any kind to a vast amount
is thus appropriated, the considerations which influence its appropriation
should correspond in magnitude to the extent of the interests at stake.
When the taking and cancelling of certain claims practically involves the
social condition of four millions of the inhabitants of the United States
and the industrial and financial interests of six millions more, it is
desirable that the considerations to justify so radical and far-reaching a
change should be in the nature of imperative official duty rather than of
speculative opinion or philosophical choice.
Let us proceed a step farther, and inquire if there be circumstances, and
if so, what circumstances, under which it becomes the right and the duty
of Congress to take and cancel the claims in question.
The controlling circumstances which bear upon this case may be thus
briefly stated.
1. The Constitution (section 8) confers on Congress certain essential
powers: as, to collect taxes, without which no government can be
supported.
2. The Constitution (same section) authorizes Congress to "make all laws
that shall be necessary and proper for carrying into execution" these
powers.
3. If Congress fail to carry into execution these powers, the Government
is set at nought, and anarchy ensues.
4. An insurrection, extending over eleven of the States comprising the
Union, now prevails.
5. Because of that insurrection, the essential powers granted to Congress
by the Constitution cannot be carried into execution in these eleven
States.
6. Because of the resistance offered by these insurrectionary States to
constitutional powers, it becomes the duty of Congress to pass all laws
that are necessary and proper to enforce these powers.
All this will be conceded; but a question remains. Who is to judge what
laws are necessary and proper to carry into execution the powers,
expressly granted by the Constitution, which are thus obstructed and
defeated?
This question has been determined by the highest legal tribunal of the
United States, speaking by the mouth of one who will be acknowledged to
have been her most distinguished presiding officer.
In the well-known case of McCulloch against the State of Maryland,[8]
Chief-Justice Marshall delivered the decision of the Supreme Court; and by
that decision the following principles were established:--
[Footnote 8: February term, 1819. 4 "Wheaton's _Rep._, 316.
Unwilling here to multiply words, I pray reference to the decision
itself.]
1. The construction of the words "necessary and proper" in the above
connection. The Chief-Justice says,--
"The term 'necessary' does not import an absolute physical
necessity, so strong that one thing to which another may be termed
necessary cannot exist without that other."
2. As to the degree of the necessity which renders constitutional a law
framed to carry a constitutional power into execution, the rule by this
decision is,--
"If a certain means to carry into effect any of the powers
expressly given by the Constitution to the Government of the Union
be an appropriate measure, not prohibited by the Constitution, the
degree of its necessity is a question of legislative discretion,
not of judicial cognizance."
3. But still more explicitly is the question answered, who is to be the
judge of the appropriateness and necessity of the means to be employed,
thus:--
"The Government which has a right to do an act, and has imposed
upon it the duty of performing that act, must, according to the
dictates of reason, be allowed to select the means."
Thus, then, the matter stands. The powers to lay and collect taxes, to
exercise authority over forts and arsenals of the United States, to
suppress insurrection, and various others equally essential, are expressly
given by the Constitution to Congress. It is the right and duty of
Congress to carry these powers into effect. In case of obstruction or
defeat of existing laws framed to that intent, it is the right and duty of
Congress to select such means and pass such additional laws as may be
necessary and proper to overcome such obstruction and enforce obedience to
such laws. In the selection of the means to effect this constitutional
object, Congress is the sole judge of their propriety or necessity. These
means must not be prohibited by the Constitution; but whether they are the
most prudent or the most effectual means, or in what degree they are
necessary, are matters over which the Supreme Court has no jurisdiction.
As Chief-Justice Marshall has elsewhere in this decision expressed it, for
the Supreme Court to undertake to inquire into the degree of their
necessity "would be to pass the line which circumscribes the judicial
department and to tread on legislative ground."
There must, of course, be congruity or relevancy between the power to be
enforced and the means proposed to enforce it. While Congress is to judge
the degree of necessity or propriety of these means, they must not be such
as to be devoid of obvious connection with the object to be attained.
In this case, the object to be attained is the enforcement, in the
insurrectionary States, of laws without which no government can exist, and
the suppression in these States of an insurrection of which the object is
the dismemberment of the Union.
But these laws are resisted, and this insurrection prevails, in those
States, and in those States only, in which the life-long claims to the
service or labor of persons of African descent are held under State laws.
In States where slaves are comparatively few, as in Delaware, Maryland,
Missouri, disaffection only prevails; while in States where the number of
slaves approaches or exceeds that of whites, as in South Carolina,
Alabama, Georgia, insurrection against lawful authority is flagrant and
outspoken: the insurrectionary acts of these States being avowedly based
on the allegation that Slavery is not safe under the present
constitutionally elected President, and that its permanent preservation
can be insured by the disruption of the national unity alone.[9]
[Footnote 9: The Secession Ordinance passed the Convention of
South Carolina December 20, 1860. The next day, December 21, the
Convention adopted the "Declaration of Causes" which led to that
Secession. This document declares, as to the non-slaveholding
States, that they have "denounced as sinful the institution of
Slavery"; that they have "united in the election of a man to the
high office of President of the United States whose opinions and
purposes are hostile to Slavery," and who declares that "the
public mind must rest in the belief that Slavery is in the course
of ultimate extinction." And it winds up with this
assertion:--"All hope of remedy is rendered vain by the fact that
the public opinion of the North has invested a great political
error with the sanctions of a more erroneous religious belief."
These, first put forth by South Carolina, afterwards indorsed by
each seceding State, are the causes officially declared to have
produced, and which are held to justify, the present
insurrection.]
All this is matter of history. And there would be as much propriety in
denying the connection between the sun and the light of day, as that
between Slavery and the Rebellion.
There _is_ a question upon which men differ: namely, whether emancipation
is the most prudent or the most effectual means to enforce violated law
and suppress the insurrectionary movement.
It is my opinion that a majority of the people of the loyal States
believe, at this moment, that emancipation is the necessary and proper
means to effect the above objects. But whether this opinion be well
founded or not is immaterial to the present question. According to
Chief-Justice Marshall's decision, when it is the right and duty of the
Government to perform an act, (as here to enforce law and suppress
insurrection,) it "must, according to the dictates of reason, be allowed
to select the means." If Congress believes, that, in order to enforce law
and suppress insurrection, it is necessary and proper to take and cancel
all claims to life-long service or labor held in the Slave States, and if
claims to service or labor, whether for years or for life, held by one
inhabitant of the United States against another, be a species of property
not specially exempted by the Constitution from seizure for public use,
then an Act of Emancipation is strictly constitutional.
Congress is to be allowed to select the means; Congress is to be the judge
of the necessity and propriety of these means: Congress, not the Supreme
Court; not even the People in their primary meetings; but the People
constitutionally represented in their National Legislature; the People,
speaking by the voice of those whom their votes have elected to that
Legislature, there to act for them.
If Congress believes that Emancipation is no longer a question of
sectional interference, but of national preservation, it has the right to
judge, and the constitutional right to act upon that judgment. And if
Congress can properly allege, as motive for taking and cancelling a
multitude of life-long claims to service, the preservation of the national
existence, can a consideration of greater magnitude be imagined for any
legislative act?
In proceeding, however, to consummate such a measure, it is evidently most
fitting and proper, that, in the preamble to an Act of Emancipation, there
should be set forth, lucidly and succinctly, the causes and considerations
which impelled to so solemn and momentous an act.
As to the just compensation provided by the Constitution to be paid, when
private property is taken for public use, it is here to be remarked,--
1. If, when a minor is drafted, a father or an apprentice-master has no
claim against the Government for service lost, it may be argued with some
plausibility, that, under similar circumstances of public exigency, a
slave-owner has no claim when his slave is freed. But the argument fairly
applies only in cases in which a slave is drafted for military service,
and returned to slavery when that service terminates. In case of wholesale
taking and cancelling of life-long claims to service, a fair construction
of the Constitution may be held to require, as a general rule, that just
compensation should be made to the claimants.
2. But to Congress, by the Constitution, is expressly given the power to
declare the punishment of treason, without any limitation as to the
confiscation of personal property, including, of course, claims in the
nature of choses in action. Congress may, therefore, take and cancel
claims to service owned by Rebel slave-owners without any compensation
whatever. Under the feudal law, a serf, owing service to a noble guilty of
treason, became, because of his master's guilt, released from such
service.
3. If, because of the present insurrection, set on foot by claimants of
service or labor, such claims, from precariousness of tenure or otherwise,
have diminished in market-value, that diminution may be properly taken
into account in estimating just compensation.
These various considerations converge to this,--that a Preamble and Act of
Emancipation, somewhat in the terms following, may be constitutionally
enacted.
_A Bill to emancipate Persons of African Descent held to Service
or Labor in certain of the United States._
Whereas there is now flagrant, in certain of the United States, an
insurrection of proportions so gigantic that there has been
required, to hold it in check, an increase of the army and navy of
the United States to an extent seldom paralleled in the history of
the world;
And whereas, because of the said insurrection, the execution of
the laws for collecting taxes, and of various other laws of the
United States, heretofore enacted by the Congress in the just
exercise of their constitutional powers, has been, for more than
two years past, and still is, obstructed and defeated throughout
the insurrectionary States;
And whereas it is the right and duty of the Congress to make all
laws which shall be necessary and proper for carrying into
execution the said constitutional powers;
And whereas the said insurrectionary portions of the Union consist
exclusively of States wherein persons of African descent are held
in large numbers to involuntary service or labor,--the white
inhabitants thereof basing their insurrectionary acts upon the
assumption that the security and perpetuation of such involuntary
servitude require the disruption of the national unity, and the
establishment, on a portion of the domain of the United States, of
a separate and independent government;
And whereas a large portion of the said persons of African
descent, so held in servitude, contribute greatly, so long as such
involuntary services are thus exacted from them, to the aid and
comfort of the said insurrectionists, laboring for their behoof on
their fortifications, and for the supply of their commissariat,
and otherwise giving strength and support to various
insurrectionary acts;
And whereas, in an emergency so urgent as that which is now patent
to the world, it is the duty of the Congress to place at the
disposal of the Executive branch of the Government, for the common
defence, the utmost power, civil and military, of the country, and
to employ every means not forbidden by the usages of civilized
warfare, and not in violation of the Constitution, that is placed
within their reach, in order to repress and to bring to a speedy
termination the present protracted and desolating insurrection;
And whereas it appears from the above recitals, that the
existence, throughout certain of the United States, of a
labor-system which recognizes the claims of one race of men to the
involuntary services of another race (always a moral wrong) has
now shown itself to be destructive of the supremacy of the laws,
and a constant menace to the Government, and that the continuance
of such labor-system imminently jeopardizes the integrity of the
Union, and has become incompatible with the domestic tranquillity
of the country;
And whereas it has thus become evident that claims to the
involuntary service or labor of persons of African descent ought
not to be possessed by any inhabitant of the United States, but
should, in the just exercise of the power which inheres in every
independent government to protect itself from destruction by
seizing and destroying any private property of its citizens or
subjects which imperils its own existence, be taken, as for public
use, from their present possessors, and abrogated and
annulled,--just compensation being made to so many of the said
possessors of such claims as may demand it, and as may by their
loyalty be entitled thereto, for the claims so abrogated and
annulled; therefore,
Be it enacted by the Senate and House of Representatives in
Congress assembled, that from and after the ---- day of ---- next
all claims to the services or labor of persons of African descent,
who shall then be held to involuntary service or labor in any of
the States of the Union under the laws thereof, be and the same
are hereby taken by the Government of the United States. And the
said claims are hereby abrogated and annulled. And all persons of
African descent within the United States, who shall, on the
said ---- day of ---- next, be held to involuntary service or
labor, except for crime of which the party shall have been legally
convicted, shall be released and emancipated from such claims in
as full and complete a manner as if the same had never existed;
the said release and emancipation to take effect from and after
the said ---- day of ----, thenceforth and forevermore.
And be it further enacted, that the faith of the United States be
and the same is hereby pledged for the payment of just
compensation to all persons who shall, on the said ---- day
of ----, hold such claims to service or labor; provided, that such
persons shall make application for such compensation in the form
and manner hereinafter prescribed, and provided further, that said
persons shall have been, throughout the present insurrection, and
shall continue to the close of the same, true and loyal to the
Government of the United States, and shall not, directly or
indirectly, have incited to insurrectionary acts, or given aid or
comfort to any persons engaged in the insurrection aforesaid.
[Here should follow provisions in regard to the manner of
application, the mode and rate of compensation, etc.]
It will probably be found that the number of slaves for the remuneration
of whose lost services applications will be made by loyal claimants, under
such an act, will scarcely reach the number emancipated in 1834 by Great
Britain, which was about seven hundred and seventy thousand; and that the
sum paid by England to colonial slave-owners, namely about a hundred
millions of dollars, (the probable cost of eight weeks war,) will suffice
as just compensation for all the services due to loyal claimants thus
taken and cancelled.[10]
[Footnote 10: The exact number of slaves emancipated in the British
colonies was 770,390; and the total amount of indemnity was
£19,950,066 sterling.]
An act couched in the terms here proposed could not be declared
unconstitutional by the Supreme Court, without a shameless encroachment on
legislative ground, nor without a reckless reversal of principles as well
established, and of as high authority, as any which form the basis of
constitutional law.
Those who demur to the passage of an act which meets the great difficulty
before us broadly, effectually, honestly, and in accordance with the
dictates of Christianity and civilization, would do well to consider
whether, in the progress of this insurrectionary upheaval, we have not
reached a point at which there is no prudent alternative left. By the
President's Proclamation some three millions of slaves have been already
declared free. Sundry laws of Congress have emancipated several hundred
thousands more. There remain legally enslaved probably less than three
quarters of a million,--chiefly scattered along a narrow border-strip that
is coterminous, North and South, with Freedom or Emancipation,--partly
dotted in isolated parishes or counties, surrounded by enfranchised
slaves. Can we maintain in perpetuity so anomalous a condition of things?
Clearly not. At every step embarrassments innumerable obstruct our
progress. No industry, no human sagacity, would suffice to determine the
ten thousand conflicting questions that must arise out of such a chaos.
Must the history of each negro be followed back, so as to determine his
_status_, whether slave or free? If negroes emancipated in insurrectionary
States are sold as slaves into Border States, or into excepted parishes or
counties, can we expect to trace the transaction? If slaves owned in
Border States, or in excepted parishes or counties, are sold to loyal men
in insurrectionary States, are they still slaves? or do they become free?
Are we to admit, or to deny, the constitutionality of Border-State laws,
which arrest, and imprison as vagrants, and sell into slavery to pay
expenses of arrest and imprisonment, free negro emigrants from
insurrectionary States?[11] But why multiply instances? The longer this
twilight of groping transition lasts, it will be only confusion the worse
confounded.
[Footnote 11: If, hereafter, Attorney-General Bates's decision,
that a free negro is a citizen, be sustained by the Supreme Court,
then, should the question come up before it, the State laws above
referred to will be declared unconstitutional. But meanwhile they
have not been so declared, and are in force.
The negro-excluding laws of Indiana and Illinois are in the same
category.]
We cannot stand still. Shall we recede? We break faith solemnly plighted;
we submit, before the world, to base humiliation; we bow down to a system
which the voice of all Christendom condemns; we abandon the struggle for
nationality, and consent, for ages, perhaps, to a dismembered country.
Shall we advance? There is but one path--the plain, truth-lighted, onward
path--to victory and to peace.
* * * * *