CHAPTER XIII.

THE CHILDREN OF SLAVES ARE BORN FREE.

The idea that the children of slaves are necessarily born slaves, or

that they necessarily follow that _natural law_ of property, which gives

the natural increase of property to the owner of the original stock, is

an erroneous one.

It is a principle of natural law in regard to property, that a calf

belongs to the owner of the cow that bore it; fruit to the owner of the

tree or vine on which it grew; and so on. But the principle of _natural

law_, which makes a calf belong to the owner of the cow, does not make

the child of a slave belong to the owner of the slave--and why? Simply

because both cow and calf are _naturally_ subjects of property; while

neither men nor children are _naturally_ subjects of property. The law

of nature gives no aid to any thing inconsistent with itself. It

therefore gives no aid to the transmission of property in man--while it

does give aid to the transmission of property in other animals and in

things.

Brute animals and things being _naturally_ subjects of property, there

are obvious reasons why the natural increase should belong to the owner

of the original stock. But men, not being _naturally_ subjects of

property, the law of nature will not transmit any right of property

acquired in violation of her own authority. The law of nature denies all

rights not derived from herself. Of course she cannot perpetuate or

transmit such rights--if rights they can be called.

One important reason why a calf belongs to the owner of the cow that

bore it, is, _that there is no principle of natural law that can be

opposed to that ownership_. For the calf is naturally a subject of

property, and if it were not given to the owner of the cow, it would be

lawful for any other person to assume the ownership. No wrong would be

done to the animal by so doing. But as man is not naturally a subject of

property, and as each separate individual is, on principles of natural

law, entitled to the control of his own person, it is as much a wrong,

and as much a violation of natural law, to make a slave of the child of

a slave, as to make a slave of any other person. The natural rights of

the child to the control of his own person, rise up, from the moment of

his birth, in opposition to the transmission to him of any ownership,

which, in violation of natural law, has been asserted to the parent.

Natural law may be overborne by arbitrary institutions; but she will

never aid, or perpetuate them. For her to do so, would be to resist, and

even deny her own authority. It would present the case of a principle

warring against and overcoming itself. Instead of this, she asserts her

own authority on the first opportunity. The moment the arbitrary law

expires by its own limitation, natural law resumes her reign. If,

therefore, the government declare A to be a slave, natural law may be

practically overborne by this arbitrary authority; but she will not

herself perpetuate it beyond the person of A--for that would be acting

in contradiction to herself.--She will therefore suffer this arbitrary

authority to expend itself on the person of A, according to the _letter_

of the arbitrary law; but she will assert her own authority in favor of

the child of A, to whom the letter of the law enslaving A, does not

apply.

Slavery is a wrong to each individual enslaved; and not merely to the

first of a series. Natural law, therefore, as much forbids the enslaving

of the child, as if the wrong of enslaving the parent had never been

perpetrated.

Slavery, then, is an arbitrary institution throughout. It depends, from

first to last, upon the letter of the arbitrary law. Natural law gives

it no aid, no extension, no new application, under any circumstances

whatever. Unless, therefore, the letter of the arbitrary law explicitly

authorize the enslavement of the child, the child is born free, though

the parent were a slave.

If the views that have already been taken of our written constitutions,

be correct, no parent has ever yet been legally enslaved in this

country; and of course no child. If, however, any one thinks he can

place his finger upon any _constitutional_ law, that has enslaved a

parent, let him follow that law, and see whether it also expressly

authorized the enslavement of the child. If it did not, then the child

would be free.

It is no new principle that the child of a slave would be born free, but

for an express law to the contrary. Some of the slave codes admit the

principle--for they have special provisions that the child shall follow

the condition of the mother; thus virtually admitting that, but for such

a provision, the child would be free, though the mother were a slave.

Under the constitutions of the states and the United States, it requires

as explicit and plenary _constitutional_ authority, to make slaves of

the children of slaves, as it would to make slaves of any body else. Is

there, in any of the constitutions of this country, any general

authority given to the governments, to make slaves of whom they please?

No one will pretend it. Is there, then, any particular authority for

making slaves of the children of those, who have previously been held in

slavery? If there be, let the advocates of slavery point it out. If

there be no such authority, all their statutes declaring that the

children of slaves shall follow the condition of their mothers, are

void; and those children are free by force of the law of nature.

This law of nature, that all men are born free, was recognized by this

country in the Declaration of Independence.--But it was no new principle

then. Justinian says, "Captivity and servitude are both contrary to the

law of nature; for by that law all men are born free." But the principle

was not new with Justinian; it exists in the nature of man, and is as

old as man--and the race of man generally has acknowledged it. The

exceptions have been special; the rule general.

The constitution of the United States recognizes the principle that all

men are born free; for it recognizes the principle that natural birth in

the country gives citizenship[31]--which of course implies freedom. And

no exception is made to the rule. Of course all born in the country

since the adoption of the constitution of the United States, have been

born free, whether there were, or were not any legal slaves in the

country before that time.

Even the provisions, in the several state constitutions, that the

legislatures shall not _emancipate_ slaves, would, if allowed their full

effect, unrestrained by the constitution of the United States, hold in

slavery only those who were then slaves; it would do nothing towards

enslaving their children, and would give the legislatures no authority

to enslave them.

It is clear, therefore, that, on this principle alone, slavery would now

be extinct in this country, unless there should be an exception of a few

aged persons.

[Footnote 31: Art. 2, Sec. 1, Clause 5, "No person, except a _natural

born_ citizen,* * * * shall be eligible to the office of President."]

The Unconstitutionality of Slavery · 第 14 / 14 章