constitution, that congress should take any responsibility at all in the
matter; that it was merely intended that whoever came into the country
with a cargo of men, whom he called his slaves, should be permitted to
bring them in on his own responsibility, and sell them as slaves for
life to our people; and that congress were prohibited only from
interfering, or asking any questions as to how he obtained them, or how
they became his slaves. Suppose such were the intention of the
constitution--what follows? Why, that the national government, the only
government that was to be known to foreign nations, the only government
that was to be permitted to regulate our commerce, or make treaties with
foreign nations, the government on whom alone was to rest the
responsibility of war with foreign nations, was bound to permit, (until
1808,) all masters, both of our own ships and of the ships of other
nations, to turn pirates, and make slaves of their passengers, whether
Englishmen, Frenchmen, or any other civilized people, (for the
constitution makes no distinction of "persons" on this point,) bring
them into this country, sell them as slaves for life to our people, and
thus make our country a rendezvous and harbor for pirates, involve us
inevitably in war with every civilized nation in the world, cause
ourselves to be outlawed as a people, and bring certain and swift
destruction upon the whole nation; and yet this government, that had the
sole responsibility of all our foreign relations, was constitutionally
prohibited from interfering in the matter, or from doing any thing but
lifting its hands in prayer to God and these pirates, that the former
would so far depart, and the latter so far desist from their usual
courses, as might be necessary to save us, until 1808, (after which time
we would take the matter into our own hands, and, by prohibiting the
causes of the danger, save ourselves,) from the just vengeance, which
the rest of mankind were taking upon us.
This is the kind of constitution, under which, (according to the slave
argument,) we lived until 1808.
But is such the real character of the constitution? By it, did we thus
really avow to the world that we were a nation of pirates? that our
territory should be a harbor for pirates? that our people were
constitutionally licensed to enslave the people of all other nations,
without discrimination, (for the instrument makes no discrimination,)
whom they could either kidnap in their own countries, or capture on the
high seas? and that we had even prohibited our only government that
could make treaties with foreign nations, from making any treaty, until
1808, with any particular nation, to exempt the people of that nation
from their liability to be enslaved by the people of our own? The slave
argument says that we did avow all this. If we really did, perhaps all
that can be said of it now is, that it is very fortunate for us that
other nations did not take us at our word. For if they had taken us at
our word, we should, before 1808, have been among the nations that were.
Suppose that, on the organization of our government, we had been charged
by foreign nations, with having established a piratical government--how
could we have rebutted the charge otherwise than by denying that the
words "importation of persons" legally implied that the persons imported
were slaves? Suppose that European ambassadors had represented to
president Washington that their governments considered our constitution
as licensing our people to kidnap the people of other nations, without
discrimination, and bring them to the United States as slaves. Would he
not have denied that the legal meaning of the clause did any thing more
than secure the free introduction of foreigners as passengers and
freemen? Or would he--_he_, the world-renowned champion of human
rights--have indeed stooped to the acknowledgment that in truth he was
the head of a nation of pirates, whose constitution did guarantee the
freedom of kidnapping men abroad, and importing them as slaves? And
would he, in the event of this acknowledgment, have sought to avert the
destruction, which such an avowal would be likely to bring upon the
nation, by pleading that, although such was the legal meaning of the
words of our constitution, we yet had an understanding, (an honorable
understanding!) among ourselves, that we would not take advantage of the
license to kidnap or make slaves of any of the citizens of those
civilized and powerful nations of Europe, that kept ships of war, and
knew the use of gunpowder and cannon; but only the people of poor, weak,
barbarous and ignorant nations, who were incapable of resistance and
retaliation?
Again. Even the allowance of the simple "_importation_" of slaves--(and
that is the most that is _literally_ provided for--and the word
"importation" must be construed to the letter,) would not, of itself,
give any authority for the continuance of the slavery _after_
"importation." If a man bring either property or persons into this
country, he brings them in to abide the constitutional laws of the
country; and not to be held according to the customs of the country from
which they were brought. Were it not so, the Turk might import a harem
of Georgian slaves, and, at his option, either hold them as his own
property, or sell them as slaves to our own people, in defiance of any
principles of freedom that should prevail amongst us. To allow this kind
of "importation," would be to allow not merely the importation of
foreign "persons," but also of foreign laws to take precedence of our
own.
Finally. The conclusion, that congress were restrained, by this clause,
only from prohibiting the immigration of a foreign population, and not
from prohibiting the importation of slaves, to be held as slaves after
their importation--is the more inevitable, from the fact that the power
given to congress of naturalizing foreigners, is entirely
unlimited--except that their laws must be uniform throughout the United
States. They have perfect power to pass laws that shall naturalize every
foreigner without distinction, the moment he sets foot on our soil. And
they had this power as perfectly prior to 1808, as since. And it is a
power entirely inconsistent with the idea that they were bound to admit,
and forever after to acknowledge as slaves, all or any who might be
attempted to be brought into the country as such.
One other provision of the constitution, viz: the one that "the United
States shall protect each of the States against domestic violence"--has
sometimes been claimed as a special pledge of impunity and succor to
that kind of "violence," which consists in one portion of the people's
standing constantly upon the necks of another portion, and robbing them
of all civil privileges, and trampling upon all their personal rights.
The argument seems to take it for granted, that the only proper way of
protecting a "_republican_" state (for the states are all to be
"republican,") against "domestic violence," is to plant men firmly upon
one another's necks, (about in the proportion of two upon one,) arm the
two with whip and spur, and then keep an armed force standing by to cut
down those that are ridden, if they dare attempt to throw the riders.
When the ridden portion shall, by this process, have been so far subdued
as to bear the burdens, lashings and spurrings of the other portion
without resistance, then the state will have been secured against
"domestic violence," and the "republican form of government" will be
completely successful.
This version of this provision of the constitution presents a fair
illustration of those new ideas of law and language, that have been
invented for the special purpose of bringing slavery within the pale of
the constitution.
We have thus examined all those clauses of the constitution, that have
been relied on to prove that the instrument recognizes and sanctions
slavery. No one would have ever dreamed that either of these clauses
alone, or that all of them together, contained so much as an allusion to
slavery, had it not been for circumstances extraneous to the
constitution itself. And what are these extraneous circumstances? They
are the existence and toleration, in one portion of the country, of a
crime that embodies within itself nearly all the other crimes, which it
is the principal object of all our governments to punish and suppress; a
crime which we have therefore no more right to presume that the
constitution of the United States intended to sanction, than we have to
presume that it intended to sanction all the separate crimes which
slavery embodies, and our governments prohibit. Yet we have
_gratuitously_ presumed that the constitution intended to sanction all
these separate crimes, as they are comprehended in the general crime of
slavery. And acting upon this gratuitous presumption, we have sought, in
the words of the constitution, for some hidden meaning, which we could
imagine to have been understood, by the initiated, as referring to
slavery; or rather we have presumed its words to have been used as a
kind of cypher, which, among confederates in crime, (as we presume its
authors to have been,) was meant to stand for slavery. In this way, and
in this way only, we pretend to have discovered, in the clauses that
have been examined, a hidden, yet legal sanction of slavery. In the name
of all that is legal, who of us are safe, if our government, instead of
searching our constitution to find authorities for maintaining justice,
are to continue to busy themselves in such prying and microscopic
investigations, after such disguised and enigmatical authorities for
such wrongs as that of slavery, and their pretended discoveries are to
be adopted as law, which they are sworn to carry into execution?
The clauses mentioned, taken either separately or collectively, neither
assert, imply, sanction, recognize nor acknowledge any such thing as
slavery. They do not even speak of it. They make no allusion to it
whatever. They do not suggest, and, of themselves, never would have
suggested the idea of slavery. There is, in the whole instrument, no
such word as slave or slavery; nor any language that can legally be made
to assert or imply the existence of slavery. There is in it nothing
about color; nothing from which a liability to slavery can be predicated
of one person more than another; or from which such a liability can be
predicated of any person whatever. The clauses, that have been claimed
for slavery, are all, in themselves, honest in their language, honest in
their legal meaning; and they can be made otherwise only by such
gratuitous assumptions against natural right, and such straining of
words in favor of the wrong, as, if applied to other clauses, would
utterly destroy every principle of liberty and justice, and allow the
whole instrument to be perverted to every conceivable purpose of tyranny
and crime.
Let us now look at the _positive_ provisions of the constitution, _in
favor of liberty_, and see whether they are not only inconsistent with
any legal sanction of slavery, but also whether they must not, of
themselves, have necessarily extinguished slavery, if it had had any
constitutional existence to be extinguished.
And, first, the constitution made all "the people of the United States"
_citizens_ under the government to be established by it; for all of
those, by whose authority the constitution declares itself to be
established, must of course be presumed to have been made citizens under
it. And whether they were entitled or not to the right of suffrage, they
were at least entitled to all the personal liberty and protection, which
the constitution professes to secure to "the people" generally.
Who, then, established the constitution?
The preamble to the constitution has told us in the plainest possible
terms, to wit, that "We, _the people_ of the United States" "do ordain
and establish this constitution," &c.
By "the people of the United States," here mentioned, the constitution
intends _all_ "the people" then permanently inhabiting the United
States. If it does not intend all, who were intended by "the people of
the United States?"--The constitution itself gives no answer to such a
question.--It does not declare that "we, the _white_ people," or "we,
the _free_ people," or "we, a _part_ of the people"--but that "we, _the_
people"--that is, we the _whole_ people--of the United States, "do
ordain and establish this constitution."
If the _whole_ people of the United States were not recognized as
citizens by the constitution, then the constitution gives no information
as to what portion of the people were to be citizens under it. And the
consequence would then follow that the constitution established a
government that could not know its own citizens.
We cannot go out of the constitution for evidence to prove who were to
be citizens under it. We cannot go out of a written instrument for
evidence to prove the parties to it, nor to explain its meaning, except
the language of the instrument on that point be ambiguous. In this case
there is no ambiguity. The language of the instrument is perfectly
explicit and intelligible.
Because the whole people of the country were not allowed to vote on the
ratification of the constitution, it does not follow that they were not
made citizens under it; for women and children did not vote on its
adoption; yet they are made citizens by it, and are entitled as citizens
to its protection; and the state governments cannot enslave them. The
national constitution does not limit the right of citizenship and
protection by the right of suffrage, any more than do the state
constitutions. Under the most, probably under all the state
constitutions, there are persons who are denied the right of
suffrage--but they are not therefore liable to be enslaved.
Those who did take part in the actual ratification of the constitution,
acted in behalf of, and, _in theory_, represented the authority of the
whole people. Such is the theory in this country wherever suffrage is
confined to a few; and such is the virtual declaration of the
constitution itself. The declaration that "we _the people_ of the United
States do ordain and establish this constitution," is equivalent to a
declaration that those who actually participated in its adoption, acted
in behalf of all others, as well as for themselves.
Any private intentions or understandings, on the part of one portion of
the people, as to who should be citizens, cannot be admitted to prove
that such portion only were intended by the constitution, to be
citizens; for the intentions of the other portion would be equally
admissible to exclude the exclusives. The mass of the people can claim
citizenship under the constitution, on no other ground than as being a
part of "the people of the United States;" and such claim necessarily
admits that all other "people of the United States" are equally
citizens.
That the designation, "We the people of the United States," included the
whole people that properly belonged to the United States, is also proved
by the fact that no exception is made in any other part of the
instrument.
If the constitution had intended that any portion of "the people of the
United States" should be excepted from its benefits, disfranchised,
outlawed, enslaved, it would of course have designated these exceptions
with such particularity as to make it sure that none but the true
persons intended would be liable to be subjected to such wrongs. Yet,
instead of such particular designation of the exceptions, we find no
designation whatever of the kind. But on the contrary, we _do_ find, in
the preamble itself, a sweeping declaration to the effect that there are
no such exceptions; that the whole people of the United States are
citizens, and entitled to liberty, protection, and the dispensation of
justice under the constitution.
If it be admitted that the constitution designated its own citizens,
then there is no escape from the conclusion that it designated the
whole people of the United States as such. On the other hand, if it be
denied that the constitution designated its own citizens, one of these
two conclusions must follow, viz., 1st, that it has no citizens; or, 2d,
that it has left an unrestrained power in the _state_ governments to
determine who may, and who may not, be citizens of the _United States_
government. If the first of these conclusions be adopted, viz., that the
constitution has no citizens, then it follows that there is really no
United States government, except on paper--for there would be as much
reason in talking of an army without men, as of a government without
citizens. If the second conclusion be adopted, viz., that the state
governments have the right of determining who may, and who may not be
citizens of the United States government, then it follows that the state
governments may at pleasure destroy the government of the United States,
by enacting that none of their respective inhabitants shall be citizens
of the United States.
This latter is really the doctrine of some of the slave states--the
"state-rights" doctrine, so called. That doctrine holds that the general
government is merely a confederacy or league of the several states, _as
states_; not a government established by the people, _as people_. This
"state-rights" doctrine has been declared unconstitutional by reiterated
opinions of the supreme court of the United States;[22] and, what is of
more consequence, it is denied also by the preamble to the constitution
itself, which declares that it is "the people," (and not the state
governments,) that ordain and establish it. It is true also that the
constitution was ratified by conventions of the people, and not by the
legislatures of the states. Yet because the constitution was ratified by
conventions of the states _separately_, (as it naturally would be for
convenience, and as it necessarily must have been for the reason that
none but the people of the respective states could recall any portion of
the authority they had, delegated to their state governments, so as to
grant it to the United States government,)--yet because it was thus
ratified, I say, some of the slave states have claimed that the general
government was a league of states, instead of a government formed by
"the people." The true reason why the slave states have held this
theory, probably is, because it would give, or appear to give, to the
states the right of determining who should, and who should not, be
citizens of the United States. They probably saw that if it were
admitted that the constitution of the United States had designated its
own citizens, it had undeniably designated the whole people of the then
United States as such; and that, as a state could not enslave a citizen
of the United States, (on account of the supremacy of the constitution
of the United States,) it would follow that there could be no
constitutional slavery in the United States.
Again. If the constitution was established by authority of all "the
people of the United States," they were all legally parties to it, and
citizens under it. And if they were parties to it, and citizens under
it, it follows that neither they, _nor their posterity_, nor any nor
either of them, can ever be legally enslaved within the territory of the
United States; for the constitution declares its object to be, among
other things, "to secure the blessings of liberty to _ourselves, and our
posterity_." This purpose of the national constitution is a law
paramount to all state constitutions; for it is declared that "this
constitution, and the laws of the United States that shall be made in
pursuance thereof, and all treaties made, or which shall be made under
the authority of the United States, shall be the supreme law of the
land; and the judges _in every state_ shall be bound thereby, any thing
in the constitution or laws of any state to the contrary
notwithstanding."
No one, I suppose, doubts that if the state governments were to abolish
slavery, the slaves would then, without further legislation, become
citizens of the United States. Yet, in reality, if they would become
citizens then, they are equally citizens now--else it would follow that
the state governments had an arbitrary power of making citizens of the
United States; or--what is equally absurd--it would follow that
disabilities, arbitrarily imposed by the state governments, upon native
inhabitants of the country, were, of themselves, sufficient to deprive
such inhabitants of their citizenship, which would otherwise have been
conferred upon them by the constitution of the United States. To suppose
that the state governments are thus able, arbitrarily, to keep in
abeyance, or arbitrarily to withhold from any of the inhabitants of the
country, any of the benefits or rights which the national constitution
intended to confer upon them, would be to suppose that the state
constitutions were paramount to the national one. The conclusion,
therefore, is inevitable, that the state governments have no power to
withhold the rights of citizenship from any who are otherwise competent
to become citizens. And as all the native born inhabitants of the
country are at least competent to become citizens of the United States,
(if they are not already such,) the state governments have no power, by
slave laws or any other, to withhold the rights of citizenship from
them.
But however clear it may be, that the constitution, in reality, made
citizens of all "the people of the United States," yet it is not
necessary to maintain that point, in order to prove that the
constitution gave no guaranty or sanction to slavery--for if it had not
already given citizenship to all, it nevertheless gave to the government
of the United States unlimited power of offering citizenship to all. The
power given to the government of passing naturalization laws, is
entirely unrestricted, except that the laws must be uniform throughout
the country. And the government have undoubted power to offer
naturalization and citizenship to every person in the country, whether
foreigner or native, who is not already a citizen. To suppose that we
have in the country three millions of native born inhabitants, not
citizens, and whom the national government has no power to make
citizens, when its power of naturalization is entirely unrestricted, is
a palpable contradiction.
But further. The constitution of the United States must be made
consistent with itself throughout; and if any of its parts are
irreconcilable with each other, those parts that are inconsistent with
liberty, justice and right, must be thrown out for inconsistency.
Besides the provisions already mentioned, there are numerous others, in
the constitution of the United States, that are entirely and
irreconcilably inconsistent with the idea that there either was, or
could be, any constitutional slavery in this country.
Among these provisions are the following:
_First._ Congress have power to lay a capitation or poll tax upon the
people of the country. Upon whom shall this tax be levied? and who must
be held responsible for its payment? Suppose a poll tax were laid upon a
man, whom the state laws should pretend to call a slave. Are the United
States under the necessity of investigating, or taking any notice of the
fact of slavery, either for the purpose of excusing the man himself from
the tax, or of throwing it upon the person claiming to be his owner?
Must the government of the United States find a man's pretended owner,
or only the man himself, before they can tax him? Clearly the United
States are not bound to tax any one but the individual himself, or to
hold any other person responsible for the tax. Any other principle would
enable the state governments to defeat any tax of this kind levied by
the United States. Yet a man's liability to be held personally
responsible for the payment of a tax, levied upon himself by the
government of the United States, is inconsistent with the idea that the
government is bound to recognize him as not having the ownership of his
own person.
_Second._ "The congress shall have power to regulate commerce with
foreign nations, and among the several states, and with the Indian
tribes."
This power is held, by the supreme court of the United States, to be an
exclusive one in the general government; and it obviously must be so, to
be effectual--for if the states could also interfere to regulate it, the
states could at pleasure defeat the regulations of congress.
Congress, then, having the exclusive power of regulating this commerce,
they only (if any body) can say who may, and who may not, carry it on;
and probably even they have no power to discriminate arbitrarily between
individuals.--But, in no event, have the _state_ governments any right
to say who may, or who may not, carry on "commerce with foreign
nations," or "among the several states," or "with the Indian tribes."
Every individual--naturally competent to make contracts--whom the state
laws declare to be a slave, probably has, and certainly may have, under
the regulations of congress, as perfect a right to carry on "commerce
with foreign nations, and among the several states, and with the Indian
tribes," as any other citizen of the United States can have--"any thing
in the constitution or laws of any state to the contrary
notwithstanding." Yet this right of carrying on commerce is a right
entirely inconsistent with the idea of a man's being a slave.
Again. It is a principle of law that the right of traffic is a natural
right, and that all commerce (that is intrinsically innocent) is
therefore lawful, except what is prohibited by positive legislation.
Traffic with the slaves, either by people of foreign nations, or by
people belonging to other states than the slaves, has never (so far as I
know) been prohibited by congress, which is the only government, (if
any,) that has power to prohibit it. Traffic with the slaves is
therefore as lawful at this moment, under the constitution of the
United States, as is traffic with their masters; and this fact is
entirely inconsistent with the idea that their bondage is
constitutional.
_Third._ "The congress shall have power to establish post offices and
post roads."
Who, but congress, have any right to say who may send, or receive
letters by the United States posts? Certainly no one. They have
undoubted authority to permit any one to send and receive letters by
their posts--"any thing in the constitutions or laws of the states to
the contrary notwithstanding." Yet the right to send and receive letters
by post, is a right inconsistent with the idea of a man's being a slave.
_Fourth._ "The congress shall have power to promote the progress of
science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and
discoveries."
Suppose a man, whom a state may pretend to call a slave, should make an
invention or discovery--congress have undoubted power to secure to such
individual himself, by patent, the "_exclusive_"--(mark the word)--the
"exclusive right" to his invention or discovery. But does not this
"_exclusive right_" in the inventor himself, exclude the right of any
man, who, under a state law, may claim to be the owner of the inventor?
Certainly it does. Yet the slave code says that whatever is a slave's is
his owner's. This power, then, on the part of congress, to secure to an
individual the exclusive right to his inventions and discoveries, is a
power inconsistent with the idea that that individual himself, and all
he may possess, are the property of another.
_Fifth._ "The congress shall have power to declare war, grant letters
of marque and reprisal, and make rules concerning captures on land
and water;" also "to raise and support armies;" and "to provide and
maintain a navy."
Have not congress authority, under these powers, to enlist soldiers and
sailors, _by contract with themselves_, and to pay them their wages,
grant them pensions, and secure their wages and pensions to their own
use, without asking the permission either of the state governments, or
of any individuals whom the state governments may see fit to recognize
as the owners of such soldiers and sailors? Certainly they have, in
defiance of all state laws and constitutions whatsoever; and they have
already asserted that principle by enacting that pensions, paid by the
United States to their soldiers, shall not be liable to be taken for
debt, under the laws of the states. Have they not authority also to
grant letters of marque and reprisal, and to secure the prizes, to a
ship's crew of blacks, as well as of whites? To those whom the State
governments call slaves, as well as to those whom the state governments
call free?--Have not congress authority to make contracts, for the
defence of the nation, with any and all the inhabitants of the nation,
who may be willing to perform the service? Or are they obliged first to
ask and obtain the consent of those private individuals who may pretend
to own the inhabitants of this nation? Undoubtedly congress have the
power to contract with whom they please, and to secure wages and
pensions to such individuals, in contempt of all state authority. Yet
this power is inconsistent with the idea that the constitution
recognizes or sanctions the legality of slavery.
_Sixth._ "The congress shall have power to provide for the
organizing, _arming_ and disciplining the _militia_, and for
governing such part of them as may be employed in the service of the
United States, reserving to the states respectively the appointment
of the officers, and the authority of training the militia, according
to the discipline prescribed by congress." Also "to provide for
calling forth the militia to execute the laws of the Union, suppress
insurrections, and repel invasions."
Have not congress, under these powers, as undoubted authority to enroll
in the militia, and "_arm_" those whom the states call slaves, and
authorize them always to keep their arms by them, even when not on duty,
(that they may at all times be _ready_ to be "called forth" "to execute
the laws of the Union, suppress insurrections, and repel invasions,")
as they have thus to enroll and arm those whom the states call free? Can
the state governments determine who may, and who may not compose the
militia of the "United States?"
Look, too, at this power, in connection with the second amendment to the
constitution; which is in these words:
"A well regulated militia being necessary to the security of a free
state, the right of _the people_ to keep and bear arms shall not be
infringed."
These provisions obviously recognize the natural right of all men "to
keep and bear arms" for their personal defence; and prohibit both
congress and the state governments from infringing the right of "the
people"--that is, of _any_ of the people--to do so; and more especially
of any whom congress have power to include in their militia. This right
of a man "to keep and bear arms," is a right palpably inconsistent with
the idea of his being a slave. Yet the right is secured as effectually
to those whom the states presume to call slaves, as to any whom the
states condescend to acknowledge free.
Under this provision any man has a right either to give or sell arms to
those persons whom the states call slaves; and there is no
_constitutional_ power, in either the national or state governments,
that can punish him for so doing; or that can take those arms from the
slaves; or that can make it criminal for the slaves to use them, if,
from the inefficiency of the laws, it should become necessary for them
to do so, in defence of their own lives or liberties; for this
constitutional right to keep arms implies the constitutional right to
use them, if need be, for the defence of one's liberty or life.
_Seventh._ The constitution of the United States declares that "no state
shall pass _any_ law impairing the obligation of contracts."
"The obligation of contracts," here spoken of, is, of necessity, the
_natural obligation_; for that is the only real or true obligation that
any contracts can have. It is also the only obligation, which courts
recognize in any case, except where legislatures arbitrarily interfere
to impair it. But the prohibition of the constitution is upon the
states' passing any law whatever that shall impair the natural
obligation of men's contracts. Yet, if slave laws were constitutional,
they would effectually impair the obligation of all contracts entered
into by those who are made slaves; for the slave laws must necessarily
hold that all a slave's contracts are void.
This prohibition upon the states to pass _any_ law impairing the natural
obligation of men's contracts, implies that all men have a
constitutional right to enter into all contracts that have a natural
obligation. It therefore _secures_ the constitutional right of all men
to enter into such contracts, and to have them respected by the state
governments. Yet this constitutional right of all men to enter into all
contracts that have a natural obligation, and to have those contracts
recognized by law as valid, is a right plainly inconsistent with the
idea that men can constitutionally be made slaves.
This provision therefore absolutely prohibits the passage of slave laws,
because laws that make men slaves must necessarily impair the obligation
of all their contracts.
_Eighth._ Persons, whom some of the state governments recognize as
slaves, are made eligible, by the constitution of the United States, to
the office of president of the United States. The constitutional
provision on this subject is this:
"No person, except a natural born citizen, or a citizen of the United
States at the time of the adoption of this constitution, 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, and been fourteen years a resident of the United
States."
According to this provision, _all_ "persons",[23] who have resided
within the United States fourteen years, have attained the age of
thirty-five years, and are either _natural born citizens, or were
citizens of the United States at the time of the adoption of the
constitution_, are eligible to the office of president. No other
qualifications than these being required by the constitution, no others
can be legally demanded. The only question, then, that can arise, is as
to the word "citizen." Who are the persons that come within this
definition, as here used? The clause itself divides them into two
classes, to wit, the "natural born," and those who were "citizens of the
United States at the time of the adoption of the constitution." In
regard to this latter class, it has before been shown, from the preamble
to the constitution, that all who were "people of the United States,"
(that is, permanent inhabitants,) at the time the constitution was
adopted, were made citizens by it. And this clause, describing those
eligible to the office of president, implies the same thing. This is
evident; for it speaks of those who were "citizens of the _United
States_ at the time of the adoption of the constitution." Now there
clearly could have been no "citizens of the United States, at the time
of the adoption of the constitution," unless they were made so by the
constitution itself; for there were _no_ "citizens of the _United
States_" _before_ the adoption of the constitution. The Confederation
had no citizens. It was a mere league between the state governments. The
separate states belonging to the confederacy had each their own citizens
respectively. But the confederation itself, as such, had no citizens.
There were, therefore, no "citizens of the United States," (but only
citizens of the respective states,) before the adoption of the
constitution.--Yet this clause asserts that immediately on the adoption,
or "at the time of the adoption of this constitution," there _were_
"citizens of the United States." Those, then, who were "citizens of the
United States at the time of the adoption of the constitution," were
necessarily those, and only those, who had been made so by the adoption
of the constitution; because they could have become citizens at that
precise "time" in no other way. If, then, any persons were made
citizens by the adoption of the constitution, who were the _individuals_
that were thus made citizens? They were "the people of the United
States," of course--as the preamble to the constitution virtually
asserts. And if "the people of the United States" were made citizens by
the adoption of the constitution, then _all_ "the people of the United
States" were necessarily made citizens by it--for no discrimination is
made by the constitution between different individuals, "people of the
United States"--and there is therefore no means of determining who were
made citizens by the adoption of the constitution, unless _all_ "the
people of the United States" were so made. Any "person," then, who was
one of "the people of the United States" "at the time of the adoption of
this constitution," and who is thirty-five years old, and has resided
fourteen years within the United States, is eligible to the office of
president of the United States. And if every such person be eligible,
under the constitution, to the office of president of the United States,
the constitution certainly does not recognize them as slaves.
The other class of citizens, mentioned as being eligible to the office
of president, consists of the "natural born citizens." Here is an
implied assertion that _natural birth_ in the country gives the right of
citizenship. And if it gives it to one, it necessarily gives it to
all--for no discrimination is made; and if all persons, born in the
country, are not entitled to citizenship, the constitution has given us
no test by which to determine who of them are entitled to it.
Every person, then, born in the country, and that shall have attained
the age of thirty-five years, and been fourteen years a resident within
the United States, is eligible to the office of president. And if
eligible to that office, the constitution certainly does not recognize
him as a slave.
Persons, who are "citizens" of the United States, according to the
foregoing definitions, are also eligible to the offices of
representative and senator of the United States; and therefore cannot be
slaves.
_Ninth._ The constitution declares that "the trial of all crimes,
except in cases of impeachment, shall be _by jury_."--Also that
"Treason against the United States shall consist only in levying war
against them, or in adhering to their enemies, giving them aid and
comfort."
It is obvious that slaves, if we had any, might "levy war against the
United States," and might also "adhere to their enemies, giving them aid
and comfort." It may, however, be doubted whether they could commit the
crime of treason--for treason implies a breach of fidelity, trust or
allegiance, where fidelity, trust or allegiance is due. And it is very
clear that slaves could owe allegiance, trust or fidelity, neither to
the United States, nor to the state governments; for allegiance is due
to a government only from those who are protected by it. Slaves could
owe to our governments nothing but resistance and destruction. If
therefore they were to levy war against the United States, they might
not perhaps be liable to the technical charge of treason; although there
would, in reality, be as much treason in their act, as there would of
any other crime--for there would, in truth, be neither legal nor moral
crime of any kind in it. Still, the government would be compelled, in
order to protect itself against them, to charge them with some crime or
other--treason, murder, or something else. And this charge, whatever it
might be, would have to be tried by a jury. And what (in criminal
cases,) is the "trial by jury?" It is a trial, both of the law and the
fact, by the "peers," or equals, of the person tried. Who are the
"peers" of a slave? None, evidently, but slaves. If, then, the
constitution recognizes any such class of persons, in this country, as
slaves, it would follow that for any crime committed by them against the
United States, they must be tried, both on the law and the facts, by a
jury of slaves. The result of such trials we can readily imagine.
Does this look as if the constitution guarantied, or even recognized the
legality of slavery?
_Tenth._ The constitution declares that "The privilege of the writ of
_habeas corpus_ shall not be suspended, unless when, in cases of
rebellion or invasion, the public safety may require it."
The privilege of this writ, wherever it is allowed, is of itself
sufficient to make slavery impossible and illegal. The object and
prerogative of this writ are to secure to all persons their natural
right to personal liberty, against all restraint except from the
government; and even against restraints by the government itself, unless
they are imposed in conformity with established general laws, and upon
the charge of some legal offence or liability. It accordingly liberates
all who are held in custody against their will, (whether by individuals
or the government,) unless they are held _on some formal writ or
process, authorized by law, issued by the government, according to
established principles, and charging the person held by it with some
legal offence or liability_. The principle of the writ seems to be, that
no one shall be restrained of his natural liberty, unless these three
things conspire; 1st, that the restraint be imposed by _special command
of the government_; 2d, that there be a general law authorizing
restraints for specific causes; and, 3d, that the government, previously
to issuing process for restraining any particular individual, shall
itself, by its proper authorities, take express cognizance of, and
inquire cautiously into the facts of each case, and ascertain, by
reasonable evidence, that the individual has brought himself within the
liabilities of the general law. All these things the writ of _habeas
corpus_ secures to be done, before it will suffer a man to be restrained
of his liberty; for the writ is a mandate to the person holding another
in custody, commanding him to bring his prisoner before the court, and
show the authority by which it holds him. Unless he then exhibit a legal
precept, warrant or writ, issued by, and bearing the seal of the
government, specifying a legal ground for restraining the prisoner, and
authorizing or requiring him to hold him in custody, he will be ordered
to let him go free. Hence all the keepers of prisons, in order to hold
their prisoners against the authority of this writ, are required, in the
case of each prisoner, to have a written precept or order, bearing the
seal of the government, and issued by the proper authority, particularly
describing the prisoner by name or otherwise, and setting forth the
legal grounds of his imprisonment, and requiring the keeper of the
prison to hold him in his custody.
Now the master does not hold his slave in custody by virtue of any
formal or legal writ or process, either authorized by law, or issued by
the government, or that charges the slave with any legal offence or
liability. A slave is incapable of incurring any legal liability, or
obligation to his master. And the government could, with no more
consistency, grant a writ or process to the master, to enable him to
hold his slave, than it could to enable him to hold his horse. It simply
recognizes his right of property in his slave, and then leaves him at
liberty to hold him by brute force, if he can, as he holds his ox, or
his horse--and not otherwise. If the slave escape, or refuse to labor,
the slave code no more authorizes the government to issue legal process
against the slave, to authorize the master to catch him, or compel him
to labor, than it does against a horse for the same purpose.--The slave
is held simply as property, by individual force, without legal process.
But the writ of _habeas corpus_ acknowledges no such principle as the
right of property in man. If it did, it would be perfectly impotent in
all cases whatsoever; because it is a principle of law, in regard to
property, that simple possession is _prima facie_ evidence of ownership;
and therefore any man, who was holding another in custody, could defeat
the writ by pleading that he owned his prisoner, and by giving, as proof
of ownership, the simple fact that he was in possession of him. If,
therefore, the writ of _habeas corpus_ did not, of itself, involve a
denial of the right of property in man, the fact stated in it, that one
man was holding another in custody, would be _prima facie_ evidence
that he owned him, and had a right to hold him; and the writ would
therefore carry an absurdity in its face.
The writ of _habeas corpus_, then, _necessarily_ denies the right of
property in man. And the constitution, by declaring, without any
discrimination of persons, that "the privilege of this writ shall not be
suspended,"--that is, shall not be denied to any human being--has
declared that, under the constitution, there can be no right of property
in man.
This writ was unquestionably intended as a great constitutional guaranty
of personal liberty. But unless it denies the right of property in man,
it in reality affords no protection to any of us against being made
slaves. If it does deny the right of property in man, the slave is
entitled to the privilege of the writ; for he is held in custody by his
master, simply on the ground of property.
Mr. Christian, one of Blackstone's editors, says that it is this writ
that makes slavery impossible in England. It was on this writ, that
Somerset was liberated. The writ, in fact, asserts, as a great
constitutional principle, the natural right of personal liberty. And the
privilege of the writ is not confined to citizens, but extends to all
human beings.[24] And it is probably the only absolute guaranty, that
our national constitution gives to foreigners and aliens, that they
shall not, on their arrival here, be enslaved by those of our state
governments that exhibit such propensities for enslaving their
fellow-men. For this purpose, it is a perfect guaranty to people who
come here from any part of the world. And if it be such a guaranty to
foreigners and aliens, is it no guaranty to those born under the
constitution? Especially when the constitution makes no discrimination
of persons?
_Eleventh._ "The United States shall guaranty to every state in this
union a republican form of government, and shall protect each of
them against invasion; and, on application of the legislature, or of
the executive, (when the legislature cannot be convened,) against
domestic violence."
Mark the strength and explicitness of the first clause of this section,
to wit, "The United States _shall guarantee_ to every state in this
union a republican form of government." Mark also especially that this
guaranty is one of liberty, and not of slavery.
We have all of us heretofore been compelled to hear, from individuals of
slaveholding principles, many arrogant and bombastic assertions,
touching the constitutional "_guaranties_" given to _slavery_; and
persons, who are in the habit of taking their constitutional law from
other men's mouths, instead of looking at the constitution for
themselves, have probably been led to imagine that the constitution had
really given such guaranties in some explicit and tangible form. We
have, nevertheless, seen that all those pretended guaranties are at most
nothing but certain vague hints, insinuations, ciphers and innuendoes,
that are imagined to be covered up under language which legally means
nothing of the kind. But, in the clause now cited, we do have an
explicit and peremptory "guaranty," depending upon no implications,
inferences or conjectures, and couched in no uncertain or ambiguous
terms. And what is this guaranty? Is it a guaranty of slavery? No. It is
a guaranty of something flatly incompatible with slavery: a guaranty of
"a republican form of government to every state in this union."
And what is "a republican form of government?" It is where the
government is a commonwealth--the property of the public, of the mass of
the people, or of the entire people. It is where the government is made
up of, and controlled by the combined will and power of the public, or
the mass of the people--and where, of natural consequence, it will have,
for its object, the protection of the rights of all. It is indispensable
to a republican form of government, that the public, the mass of the
people, if not the entire people, participate in the grant of powers to
the government, and in the protection afforded by the government. It is
impossible, therefore, that a government, under which any considerable
number of the people, (if indeed any number of the people,) are
disfranchised and enslaved, can be a republic. A slave government is an
oligarchy; and one too of the most arbitrary and criminal character.
Strange that men, who have eyes capable of discovering in the
constitution so many covert, implied and insinuated guaranties of crime
and slavery, should be blind to the legal import of so open, explicit
and peremptory a guaranty of freedom, equality and right.
Even if there had really been, in the constitution, two such
contradictory guaranties, as one of liberty or republicanism in every
state of the Union, and another of slavery in every state where one
portion of the people might succeed in enslaving the rest, one of these
guaranties must have given way to the other--for, being plainly
inconsistent with each other, they could not have stood together. And it
might safely have been left either to legal or to moral rules to
determine which of the two should prevail--whether a provision to
perpetuate slavery should triumph over a guaranty of freedom.
But it is constantly asserted, in substance, that there is "_no
propriety_" in the general government's interfering in the local
governments of the states. Those who make this assertion appear to
regard a state as a single individual, capable of managing his own
affairs, and of course unwilling to tolerate the intermeddling of
others. But a state is not an individual. It is made up of large numbers
of individuals, each and all of whom, amid the intestine mutations and
strifes to which states are subject, are liable, at some time or other,
to be trampled upon by the strongest party, and may therefore reasonably
choose to secure, in advance, some external protection against such
emergencies, by making reciprocal contracts with other people similarly
exposed in the neighboring states. Such contracts for mutual succor and
protection, are perfectly fit and proper for any people who are so
situated as to be able to contribute to each other's security. They are
as fit and proper as any other political contracts whatever; and are
founded on precisely the same principle of combination for mutual
defence--for what are any of our political contracts and forms of
government, but contracts between man and man for mutual protection
against those who may conspire to injure either or all of them? But
these contracts, fit and proper between all men, are peculiarly
appropriate to those, who, while they are members of various local and
subordinate associations, are, at the same time, united for specific
purposes, under one general government. Such a mutual contract, between
the people of all the states, is contained in this clause of the
constitution. And it gives to them all an additional guaranty for their
liberties.
Those who object to this guaranty, however, choose to overlook all these
considerations, and then appear to imagine that their notions of
"propriety" on this point, can effectually expunge the guaranty itself
from the constitution. In indulging this fancy, however, they
undoubtedly overrate the legal, and perhaps also the moral effect of
such superlative fastidiousness; for even if there were "_no propriety_"
in the interference of the general government to maintain a republican
form of government in the states, still, the unequivocal pledge to that
effect, given in the constitution, would nevertheless remain an
irresistible rebutter to the allegation that the constitution intended
to guaranty its opposite, slavery, an oligarchy, or a despotism. It
would, therefore, entirely forbid all those inferences and implications,
drawn by slaveholders, from those other phrases, which they quote as
guaranties of slavery.[25]
But the "propriety," and not only the propriety, but the necessity of
this guaranty, may be maintained on still other grounds.
One of these grounds is, that it would be impossible, consistently with
the other provisions of the constitution, that the general government
itself could be republican, unless the state governments were republican
also. For example. The constitution provides, in regard to the choice of
congressional representatives, that "the electors in each state shall
have the qualifications requisite for electors of the most numerous
branch of the state legislature." It was indispensable to the internal
quiet of each state, that the same body of electors, who should
participate in the suffrage of the state governments, should participate
also in the suffrage of the national one--and _vice versa_, that those
who should participate in the national suffrage, should also participate
in that of the state. If the general and state constitutions had each a
different body of electors within each state, it would obviously give
rise at once to implacable and irreconcilable feuds, that would result
in the overthrow of one or the other of the governments within the
state. Harmony or inveterate conflict was the only alternative. As
conflict would necessarily result in the destruction of one of the
governments, harmony was the only mode by which both could be preserved.
And this harmony could be secured only by giving to the same body of
electors, suffrage in both the governments.
If, then, it was indispensable to the existence and authority of both
governments, within the territory of each state, that the same body, and
only the same body of electors, that were represented in one of the
governments, should be represented in the other, it was clearly
indispensable, in order that the national one should be republican, that
the state governments should be republican also. Hence the interest
which the nation at large have in the republicanism of each of the state
governments.
It being necessary that the suffrage under the national government,
within each state, should be the same as for the state government, it is
apparent that unless the several state governments were all formed on
one general plan, or unless the electors of all the states were united
in the acknowledgement of some general controlling principle, applicable
to both governments, it would be impossible that they could unite in the
maintenance of a general government that should act in harmony with the
state governments; because the same body of electors, that should
support a despotic government in the state, could not consistently or
cordially unite, or even unite at all, in the support of a republican
government for the nation. If one portion of the state governments
should be republican, like Vermont, where suffrage is open to all--and
another portion should be oligarchies, like South Carolina, and the
other slave states--another portion limited monarchies, like
England--another portion ecclesiastical, like that of the Pope of Rome,
or that of the ancient Jews--and another portion absolute despotisms,
like that of Nicholas, in Russia, or that of Francia, in Paraguay,--and
the same body, and only the same body, of electors, that sustained each
of these governments at home, should be represented in the national
government, each state would send into the national legislature the
representatives of its own peculiar system of government; and the
national legislature, instead of being composed of the representatives
of any one theory, or principle of government, would be made up of the
representatives of all the various theories of government that prevailed
in the different states--from the extreme of democracy to the extreme of
despotism. And each of these various representatives would be obliged to
carry his local principles into the national legislature, else he could
not retain the confidence of his peculiar constituents. The consequence
would be, that the national legislature would present the spectacle of a
perfect Babel of discordant tongues, elements, passions, interests and
purposes, instead of an assembly united for the accomplishment of any
agreed or distinct object.
Without some distinct and agreed object as a bond of union, it would
obviously be impracticable for any general union of the whole people to
subsist; and that bond of union, whatever it be, must also harmonize
with the principles of each of the state governments, else there would
be a collision between the general and state governments.
Now the great bond of union, agreed upon in the general government, was
"the rights of man"--expressed in the national constitution by the terms
"liberty and justice." What other bond could have been agreed upon? On
what other principle of government could they all have united? Could
they have united to sustain the divine right of kings? The feudal
privileges of nobles? Or the supremacy of the Christian, Mahometan, or
any other church? No. They all denied the divine right of kings, and the
feudal rights of nobles; and they were of all creeds in religion. But
they were agreed that all men had certain natural, inherent, essential
and inalienable rights, among which were life, liberty and the pursuit
of happiness; and that the preservation of these rights was the
legitimate purpose of governments among men. They had avowed this
principle before the world, had fought for it, and successfully defended
it, against the mightiest power in the world. They had filled the world
with its glory; and it, in turn, had filled the world with theirs. It
had also gathered, and was then gathering, choice spirits, and large
numbers of the oppressed from other nations unto them. And this
principle--in which were involved the safety, interests and rights of
each and every one of "the people," who were to unite for the formation
of the government--now furnished a bond of union, that was at once
sufficient, legitimate, consistent, honorable, of universal application,
and having more general power over the hearts and heads of all of them,
than any other that could be found to hold them together. It comported
with their theory of the true objects of government. This principle,
therefore, they adopted as the corner-stone of their national
government; and, as a matter of necessity, all other things, on which
this new government was in any degree to depend, or which was to depend
in any degree upon this government, were then made to conform to this
principle. Hence the propriety of the power given to the general
government, of "guaranteeing to every state in the Union a republican
form of government." Had not this power been given to the general
government, the majorities in each state might have converted the state
governments into oligarchies, aristocracies, monarchies or despotisms,
that should not only have trampled upon the minorities, and defeated
their enjoyment of the national constitution, but also introduced such
factions and feuds into the national governments, as would have
distracted its councils, and prostrated its power.
But there were also motives of a pecuniary and social, as well as
political nature, that made it proper that the nation should guarantee
to the states a republican form of government.
Commerce was to be established between the people of the different
states. The commerce of a free people is many times more valuable than
that of slaves. Freemen produce and consume vastly more than slaves.
They have therefore more to buy and more to sell. Hence the free states
have a direct pecuniary interest in the civil freedom of all the other
states. Commerce between free and slave states is not reciprocal or
equal. Who can measure the increase that would have been made to the
industry and prosperity of the free states, if all the slaves in the
country had been freemen, with all the wants and energies of freemen?
And their masters had had all the thrift, industry, frugality and
enterprise of men who depend upon their own labor, instead of the labor
of slaves, for their prosperity? Great Britain thought it policy to
carry on a seven years' war against us principally to secure to herself
the control and benefits of the commerce of three millions of people and
their posterity. But we now have nearly or quite the same number of
slaves within our borders, and yet we think that commerce with them and
their posterity is a matter with which we have no concern; that there is
"_no propriety_" in that provision of the national constitution, which
requires that the general government--which we have invested with the
exclusive control of all commerce among the several states--should
secure to these three millions the right of traffic with their fellow
men, and to their fellow men the right of traffic with them, against the
impertinent usurpations and tyranny of subordinate governments, that
have no constitutional right to interfere in the matter.
Again. The slave states, in proportion to their population, contribute
nothing like an equal or equitable share to the aggregate of national
wealth. It would probably be within the truth to say that, in proportion
to numbers, the people of the free states have contributed ten times as
much to the national wealth as the people of the slave states. Even for
such wealth as the culture of their great staple, cotton, has added to
the nation, the south are indebted principally, if not entirely, to the
inventive genius of a single northern man.[26] The agriculture of the
slave states is carried on with rude and clumsy implements; by listless,
spiritless and thriftless laborers; and in a manner speedily to wear out
the natural fertility of the soil, which fertility slave cultivation
seldom or never replaces. The mechanic arts are comparatively dead among
them. Invention is utterly dormant. It is doubtful whether either a
slave or a slave holder has ever invented a single important article of
labor-saving machinery since the foundation of the government. And they
have hardly had the skill or enterprise to apply any of those invented
by others. Who can estimate the loss of wealth to the nation from these
causes alone? Yet we of the free states give to the south a share in the
incalculable wealth produced by our inventions and labor-saving
machinery, our steam engines, and cotton gins, and manufacturing
machinery of all sorts, and yet say at the same time that we have no
interest, and that there is "no propriety" in the constitutional
guaranty of that personal freedom to the people of the south, which
would enable them to return us some equivalent in kind.
For the want, too, of an enforcement of this guaranty of a republican
form of government to each of the states, the population of the country,
by the immigration of foreigners, has no doubt been greatly hindered.
Multitudes almost innumerable, who would have come here, either from a
love of liberty, or to better their conditions, and given the country
the benefit of their talents, industry and wealth, have no doubt been
dissuaded or deterred by the hideous tyranny that rides triumphant in
one half of the nation, and extends its pestiferous and detested
influence over the other half.
_Socially_, also, we have an interest in the freedom of all the states.
We have an interest in free personal intercourse with all the people
living under a common government with ourselves. We wish to be free to
discuss, with any and all of them, all the principles of liberty and all
the interests of humanity. We wish, when we meet a fellow man, to be at
liberty to speak freely with him of his and our condition; to be at
liberty to do him a service; to advise with him as to the means of
improving his condition; and, if need be, to ask a kindness at his
hands. But all these things are incompatible with slavery. Is this such
an union as we bargained for? Was it "nominated in the bond," that we
should be cut off from these the common rights of human nature? If so,
point to the line and letter, where it is so written. Neither of them
are to be found. But the contrary is expressly guarantied against the
power of both the governments, state and national; for the national
government is prohibited from passing any law abridging the freedom of
speech and the press, and the state governments are prohibited from
maintaining any other than a republican form of government, which of
course implies the same freedom.
The nation at large have still another interest in the republicanism of
each of the states; an interest, too, that is indicated in the same
section in which this republicanism is guarantied. This interest results
from the fact that the nation are pledged to "protect" each of the
states "against domestic violence." Was there no account taken--in
reference either to the cost or the principle of this undertaking--as to
what might be the character of the state governments, which we are thus
pledged to defend against the risings of the people? Did we covenant, in
this clause, to wage war against the rights of man? Did we pledge
ourselves that those, however few, who might ever succeed in getting the
government of a state into their hands, should thenceforth be recognized
as the legitimate power of the state, and be entitled to the whole force
of the general government to aid them in subjecting the remainder of the
people to the degradation and injustice of slavery? Or did the nation
undertake only to guarantee the preservation of "a republican form of
government" against the violence of those who might prove its enemies?
The reason of the thing, and the connexion, in which the two provisions
stand in the constitution, give the answer.
We have yet another interest still, and that no trivial one, in the
republicanism of the state governments; an interest indicated, too, like
the one last mentioned, in the very section in which this republicanism
is assured. It relates to the defence against invasion. The general
government is pledged to defend each of the states against invasion. Is
it a thing of no moment, whether we have given such a pledge to free or
to slave states? Is there no difference in the cost and hazard of
defending one or the other? Is it of no consequence to the expense of
life and money, involved in this undertaking, whether the people of the
state invaded shall be united, as freemen naturally will be, as one man
against the enemy? Or whether, as in slave states, half of them shall be
burning to join the enemy, with the purpose of satisfying with blood the
long account of wrong that shall have accrued against their oppressors?
Did Massachusetts--who during the war of the revolution furnished more
men for the common defence, than all the six southern states
together--did she, immediately on the close of that war, pledge herself,
as the slave holders would have it, that she would lavish her life in
like manner again, for the defence of those whose wickedness and tyranny
in peace should necessarily multiply their enemies and make them
defenceless in war? If so, on what principle, or for what equivalent,
did she do it? Did she not rather take care that the guaranty for a
republican government should be inserted in the same paragraph with that
for protection against invasion, in order that both the principle and
the extent of the liability she incurred, might distinctly appear?
The nation at large, then, as a political community under the
constitution, have both interests and rights, and both of the most vital
character, in the republicanism of each of the state governments. The
guaranty given by the national constitution, securing such a government
to each of the states, is therefore neither officious nor impertinent.
On the contrary, this guaranty was a _sine qua non_ to any national
contract of union; and the enforcement of it is equally indispensable,
if not to the continuance of the union at all, certainly to its
continuance on any terms that are either safe, honorable or equitable
for the north.
This guaranty, then, is not idle verbiage. It is full of meaning. And
that meaning is not only fatal to slavery itself, but it is fatal also
to all those pretences, constructions, surmises and implications, by
which it is claimed that the national constitution sanctions, legalizes,
or even tolerates slavery.
[Footnote 18: This language of the Supreme Court contains an admission
of the truth of the charge just made against judges, viz: that rather
than lose their offices, they will violate what they know to be law, in
subserviency to the legislatures on whom they depend; for it admits,
1st, that the preservation of men's _rights_ is the vital principle of
law, and, 2d, that courts, (and the Supreme Court of the United States
in particular,) will trample upon that principle at the bidding of the
legislature, when the mandate comes in the shape of a statute of such
"_irresistible clearness_," that its meaning cannot be evaded.]
[Footnote 19: "Laws are construed strictly to save a right."--_Whitney
et al._ vs. _Emmett et al., 1 Baldwin, C.C.R._ 316.
"No law will make a construction do wrong; and there are some things
which the law favors, and some it dislikes; it favoreth those things
that come from the order of nature."--_Jacob's Law Dictionary, title
Law._]
[Footnote 20: In the convention that framed the constitution, when this
clause was under discussion, "servants" were spoken of as a distinct
class from "slaves." For instance, "Mr. Butler and Mr. Pickney moved to
require 'fugitive slaves and servants to be delivered up like
criminals.'" Mr. Sherman objected to delivering up either slaves or
servants. He said he "saw no more propriety in the public seizing and
surrendering a slave or servant, than a horse."--_Madison Papers, p.
1447-8._
The language finally adopted shows that they at last agreed to deliver
up "_servants_," but _not "slaves"_--for as the word "servant" does not
mean "slave," the word "service" does not mean slavery.
These remarks in the convention are quoted, not because the intentions
of the convention are of the least legal consequence whatever; but to
rebut the silly arguments of those who pretend that the convention, and
not the people, adopted the constitution--and that the convention did
not understand the legal difference between the word "servant" and
"slave," and therefore used the word "service," in this clause, as
meaning slavery.]
[Footnote 21: Gibbons _vs._ Ogden.--(9 Wheaton, 1.)]
[Footnote 22: "The government (of the U.S.) proceeds directly from the
people; is 'ordained and established' in the name of the
people."--_M'Culloch_ vs. _Maryland_, 4 _Wheaton_, 403.
"The government of the Union is emphatically and truly, a government of
the people; and in form and in substance it emanates from them. Its
powers are granted by them, and are to be exercised directly on them,
and for their benefit."--_Same_, pages 404, 405.
"The constitution of the United States was ordained and established, not
by the United States in their sovereign capacities, but emphatically, as
the preamble of the constitution declares, by 'the people of the United
States.'"--_Martin_ vs. _Hunter's lessee_, 1 _Wheaton_, 324.]
[Footnote 23: That is, male persons. The constitution, whenever it uses
the pronoun, in speaking of the president, uniformly uses the masculine
gender--from which it may be inferred that male persons only were
intended to be made eligible to the office.]
[Footnote 24: Somerset was not a citizen of England, or entitled, as
such, to the protection of the English law. The privilege of the writ of
_habeas corpus_ was granted to him on the ground simply of his being a
man.]
[Footnote 25: From whom come these objections to the "propriety" of the
general government's interfering to maintain republicanism in the
states? Do they not come from those who have ever hitherto claimed that
the general government was bound to interfere to _put down
republicanism_? And that those who were _republicans_ at the north,
might with perfect "propriety" and consistency, pledge their assistance
to the despots of the south, to sustain the worst, the meanest and most
atrocious of tyrannies? Yes, from the very same. To interfere to assist
one half of the people of a state in the cowardly, cruel and fiendish
work of crushing the other half into the earth, corresponds precisely
with their chivalrous notions of "propriety;" but it is insufferable
officiousness for them to form any political compacts that will require
them to interfere to protect the weak against the tyranny of the strong,
or to maintain justice, liberty, peace and freedom.]
[Footnote 26: Eli Whitney.]