THE STATE CONSTITUTIONS OF 1845.
Of all the existing state constitutions, (excepting that of Florida,
which I have not seen,) not one of them contains provisions that are
sufficient, (or that would be sufficient if not restrained by the
constitution of the United States,) to authorize the slavery that exists
in the states. The material deficiency in all of them is, that they
neither designate, nor give the legislatures any authority to designate
the persons, who may be made slaves. Without such a provision, all their
other provisions in regard to slaves are nugatory, simply because their
application is legally unknown. They would apply as well to whites as to
blacks, and would as much authorize the enslavement of whites as of
blacks.
We have before seen that none of the state constitutions, that were in
existence in 1789, recognized slavery at all. Since that time, four of
the old thirteen states, viz., Maryland, North Carolina, South Carolina
and Georgia, have altered their constitutions so as to make them
recognize slavery; yet not so as to provide for any legal designation of
the persons to be made slaves.
The constitution of South Carolina has a provision that implies that
_some_ of the slaves, at least, are "negroes;" but not that all slaves
are negroes, nor that all negroes are slaves. The provision, therefore,
amounts to nothing for the purposes of a constitutional designation of
the persons who may be made slaves.
The constitutions of Tennessee and Louisiana make no direct mention of
slaves; and have no provisions in favor of slavery, unless the general
one for continuing existing laws in force, be such a one. But both have
specific provisions inconsistent with slavery. Both purport to be
established by "the people;" both have provisions for the writ of
_habeas corpus_. Indeed, the constitutions of most of the slave states
have provisions for this writ, which, as has been before shown, denies
the right of property in man. That of Tennessee declares also "that all
courts shall be open, and _every man_, for an injury done him in his
lands, goods, person or reputation, shall have remedy by due course of
law, and right and justice administered without sale, denial or delay."
Tennessee also was formerly a part of North Carolina; was set off from
her while the constitution of North Carolina was a free one. Of course
there has never been any legal slavery in Tennessee.
The constitutions of the states of Kentucky, Missouri, Arkansas,
Mississippi, and Alabama, all have provisions about slaves; yet none of
them tell us who may be slaves. Some of them indeed provide for the
admission into their state of such persons as are slaves under the laws,
(which of course means only the _constitutional_ laws,) _of other
states_. But when we go to those other states, we find that their
constitutions have made no designation of the persons who may be made
slaves; and therefore we are as far from finding the actual persons of
the slaves as we were before.
The principal provision, in the several state constitutions, recognizing
slavery, is, in substance, this, that the legislature shall have no
power to _emancipate_ slaves without the consent of their owners, or
without making compensation. But this provision is of no avail to
legalize slavery, for slavery must be _constitutionally established_,
before there can be any legal slaves to be emancipated; and it cannot be
established without describing the persons who may be made slaves.
Kentucky was originally a part of Virginia, and derived her slaves from
Virginia. As the constitution of Virginia was always a free one, it gave
no authority for slavery in that part of the state which is now
Kentucky. Of course Kentucky never had any legal slavery.
Slavery was positively prohibited in all the states included in the
Louisiana purchase, by the third article of the treaty of cession--which
is in these words:--
Art. 3. "The _inhabitants_" (that is, _all_ the inhabitants,) "of the
ceded territory shall be incorporated in the union of the United
States, and admitted as soon as possible, _according to the
principles of the federal constitution_, to the enjoyment of all the
rights, advantages, and immunities of _citizens_ of the United
States; and, in the mean time, they shall be maintained and protected
in the free enjoyment of their liberty, property, and the religion
which they profess."
The cession of Florida to the United States was made on the same terms.
The words of the treaty, on this point, are as follows:--
"Art. 6. The _inhabitants_ of the territories, which his Catholic
majesty cedes to the United States by this treaty, shall be
incorporated in the Union of the United States, as soon as may be
consistent with the principles of the federal constitution, and
admitted to the enjoyment of all the privileges, rights and
immunities of the _citizens_ of the United States."
To allow _any_ of the "inhabitants," included in those treaties, to be
held as slaves, or denied the rights of citizenship under the United
States' constitution, is a plain breach of the treaties.
The constitutions of some of the slave states have provisions like this,
viz., that all laws previously in force, shall remain in force until
repealed, unless repugnant to this constitution. But I think there is no
instance, in which the slave acts, then on their statute books, could be
perpetuated by this provision--and for two reasons; 1st. These slave
acts were previously unconstitutional, and therefore were not, legally
speaking, "laws in force."[30] 2d. Every constitution, I think, that has
this provision, has one or more other provisions that _are_ "repugnant"
to the slave acts.
[Footnote 30: This principle would apply, as we have before seen, where
the change was from the _colonial_ to a state government. It would also
apply to all cases where the change took place, under the constitution
of the United States, from a _territorial_ to a state government. It
needs no argument to prove that all our territorial statutes, that have
purported to authorize slavery, were unconstitutional.]