Virginia Legislature passed a law in 1786 to prevent the further
importation of Slaves, of which the following is an extract: "And be it
further enacted that every slave imported into this commonwealth
contrary to the true intent and meaning of this act, shall upon such
importation become _free_." By a law of Virginia, passed Dec. 17, 1792,
a slave brought into the state and kept _there a year_, was _free_. The
Maryland Court of Appeals at the December term 1813 (see case of Stewart
_vs._ Oakes,) decided that a slave owned in Maryland, and sent by his
master into Virginia to work at different periods, making one year in
the whole, became _free_, being _emancipated_ by the law of Virginia
quoted above. North Carolina and Georgia in their acts of cession,
transferring to the United States the territory now constituting the
States of Tennessee, Alabama and Mississippi, made it a condition of the
grant, that the provisions of the ordinance of '87, should be secured to
the inhabitants _with the exception of the sixth article which prohibits
slavery_; thus conceding, both the competency of law to abolish slavery,
and the power of Congress to do it, within its jurisdiction. Besides,
these acts show the prevalent belief at that time, in the slaveholding
States, that the general government had adopted a line of policy aiming
at the exclusion of slavery from the entire territory of the United
States, not included within the original States, and that this policy
would be pursued unless prevented by specific and formal stipulation.
Slaveholding states have asserted this power _in their judicial
decisions._ In numerous cases their highest courts have decided that if
the legal owner of slaves takes them into those States where slavery has
been abolished either by law or by the constitution, such removal
emancipates them, such law or constitution abolishing their slavery.
This principle is asserted in the decision of the Supreme Court of
Louisiana, in the case of Lunsford _vs._ Coquillon, 14 Martin's La.
Reps. 401. Also by the Supreme Court of Virginia, in the case of Hunter
_vs._ Fulcher, 1 Leigh's Reps. 172. The same doctrine was laid down by
Judge Washington, of the United States Supreme Court, in the case of
Butler _vs._ Hopper, Washington's Circuit Court Reps. 508. This
principle was also decided by the Court of Appeals in Kentucky; case of
Rankin _vs._ Lydia, 2 Marshall's Reps. 407; see also, Wilson _vs._
Isbell, 5 Call's Reps. 425, Spotts _vs._ Gillespie, 6 Randolph's Reps.
566. The State _vs._ Lasselle, 1 Blackford's Reps. 60, Marie Louise
_vs._ Mariot, 8 La. Reps. 475. In this case, which was tried in 1836,
the slave had been taken by her master to France and brought back; Judge
Mathews, of the Supreme Court of Louisiana, decided that "residence for
one moment" under the laws of France emancipated her.
6. _Eminent statesmen, themselves slaveholders, have conceded this
power_. Washington, in a letter to Robert Morris, dated April 12, 1786,
says: "There is not a man living, who wishes more sincerely than I do,
to see a plan adopted for the abolition of slavery; but there is only
one proper and effectual mode by which it can be accomplished, and that
is by _legislative_ authority." In a letter to Lafayette, dated May 10,
1786, he says: "It (the abolition of slavery) certainly might, and
assuredly ought to be effected, and that too by _legislative_
authority." In a letter to John Fenton Mercer, dated Sept. 9, 1786, he
says: "It is among my first wishes to see some plan adopted by which
slavery in this country may be abolished by _law_." In a letter to Sir
John Sinclair, he says: "There are in Pennsylvania, _laws_ for the
gradual abolition of slavery, which neither Maryland nor Virginia have
at present, but which nothing is more certain that that they _must
have_, and at a period not remote." Speaking of movements in the
Virginia Legislature in 1777, for the passage of a law emancipating the
slaves, Mr. Jefferson says: "The principles of the amendment were agreed
on, that is to say, the freedom of all born after a certain day; but it
was found that the public mind would not bear the proposition, yet the
day is not far distant, when _it must bear and adopt it_."--Jefferson's
Memoirs, v. 1, p. 35. It is well known that Jefferson, Pendleton, Mason,
Wythe and Lee, while acting as a committee of the Virginia House of
Delegates to revise the State Laws, prepared a plan for the gradual
emancipation of the slaves by law. These men were the great lights of
Virginia. Mason, the author of the Virginia Constitution; Pendleton, the
President of the memorable Virginia Convention in 1787, and President of
the Virginia Court of Appeals; Wythe was the Blackstone of the Virginia
bench, for a quarter of a century Chancellor of the State, the professor
of law in the University of William and Mary, and the preceptor of
Jefferson, Madison, and Chief Justice Marshall. He was author of the
celebrated remonstrance to the English House of Commons on the subject
of the stamp act. As to Jefferson, his _name_ is his biography.
Every slaveholding member of Congress from the States of Maryland,
Virginia, North and South Carolina, and Georgia, voted for the
celebrated ordinance of 1787, which _abolished_ the slavery then
existing in the Northwest Territory. Patrick Henry, in his well known
letter to Robert Pleasants, of Virginia, January 18, 1773, says: "I
believe a time will come when an opportunity will be offered to
_abolish_ this lamentable evil." William Pinkney, of Maryland, advocated
the abolition of slavery by law, in the legislature of that State, in
1789. Luther Martin urged the same measure both in the Federal
Convention, and in his report to the Legislature of Maryland. In 1796,
St. George Tucker, professor of law in the University of William and
Mary, and Judge of the General Court, published an elaborate
dissertation on slavery, addressed to the General Assembly of the State,
and urging upon them the abolition of slavery by _law_.
John Jay, while New-York was yet a slave State, and himself in law a
slaveholder, said in a letter from Spain, in 1786, "An excellent law
might be made out of the Pennsylvania one, for the gradual abolition of
slavery. Were I in your legislature, I would present a bill for the
purpose, drawn up with great care, and I would never cease moving it
till it became a law, or I ceased to be a member."
Daniel D. Tompkins, in a message to the Legislature of New-York, January
8, 1812, said: "To devise the means for the gradual and ultimate
_extermination_ from amongst us of slavery, is work worthy the
representatives of a polished and enlightened nation."
The Virginia Legislature asserted this power in 1832. At the close of a
month's debate, the following proceedings were had. I extract from an
editorial article of the Richmond Whig, of January 26, 1832.
"The report of the Select Committee, adverse to legislation on the
subject of Abolition, was in these words: _Resolved_, as the opinion of
this Committee, that it is INEXPEDIENT FOR THE PRESENT, to make any
legislative enactments for the abolition of Slavery." This Report Mr.
Preston moved to reverse, and thus to declare that it _was_ expedient,
_now_ to make Legislative enactments for the abolition of slavery. This
was meeting the question in its strongest form. It demanded action, and
immediate action. On this proposition the vote was 58 to 73. Many of the
most decided friends of abolition voted against the amendment; because
they thought public opinion not sufficiently prepared for it, and that
it might prejudice the cause to move too rapidly. The vote on Mr.
Witcher's motion to postpone the whole subject indefinitely, indicates
the true state of opinion in the House.--That was the test question, and
was so intended and proclaimed by its mover. That motion was
_negatived_, 71 to 60; showing a majority of 11, who by that vote,
declared their belief that "at the proper time, and in the proper mode,
Virginia ought to commence a system of gradual abolition."
8. _The Congress of the United States have asserted this power_. The
ordinance of '87, declaring that there should be "neither slavery nor
involuntary servitude," in the North Western territory, abolished the
slavery then existing there. The Supreme Court of Mississippi, in its
decision in the case of Harvey _vs._ Decker, Walker's Mi. Reps. 36,
declared that the ordinance emancipated the slaves then held there. In
this decision the question is argued ably and at great length. The
Supreme Court of Louisiana made the same decision in the case of Forsyth
_vs._ Nash, 4 Martin's La. Reps 385. The same doctrine was laid down by
Judge Porter, (late United States Senator from Louisiana,) in his
decision at the March term of the La. Supreme Court, 1830, in the case
of Merry _vs._ Chexnaider, 20 Martin's Reps. 699.
That the ordinance abolished the slavery then existing, is also shown by
the fact, that persons holding slaves in the territory petitioned for
the repeal of the article abolishing slavery, assigning that as a
reason. "The petition of the citizens of Randolph and St. Clair counties
in the Illinois country, stating that they were in possession of slaves,
and praying the repeal of that act (the 6th article of the ordinance of
'87) and the passage of a law legalizing slavery there." [Am. State
papers, Public Lands, v. 1. p. 69,] Congress passed this ordinance
before the United States Constitution was adopted, when it derived all
its authority from the articles of Confederation, which conferred powers
of legislation far more restricted than those conferred on Congress over
the District and Territories by the United States Constitution. Now, we
ask, how does the Constitution _abridge_ the powers which Congress
possessed under the articles of confederation?
The abolition of the slave trade by Congress, in 1808, is another
illustration of the competency of legislative power to abolish slavery.
The African slave trade has become such a mere _technic_, in common
parlance, that the fact of its being _proper slavery_ is overlooked. The
buying and selling, the transportation, and the horrors of the middle
passage, were mere _incidents_ of the slavery in which the victims were
held. Let things be called by their own names. When Congress abolished
the African slave trade, it abolished SLAVERY--supreme slavery--power
frantic with license, trampling a whole hemisphere scathed with its
fires, and running down with blood. True, Congress did not, in the
abolition of the slave trade, abolish _all_ the slavery within its
jurisdiction, but it did abolish all the slavery in _one part_ of its
jurisdiction. What has rifled it of power to abolish slavery in
_another_ part of its jurisdiction, especially in that part where it has
"exclusive legislation in all cases whatsoever?"
9. _The Constitution of the United States recognizes this power by the
most conclusive implication_. In Art. 1, sec. 3, clause 1, it prohibits
the abolition of the slave trade previous to 1808: thus implying the
power of Congress to do it at once, but for the restriction; and its
power to do it _unconditionally_, when that restriction ceased. Again:
In Art. 4, sec. 2, "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 said service or
labor." This clause was inserted, as all admit, to prevent the runaway
slave from being emancipated by the _laws_ of the free states. If these
laws had _no power_ to emancipate, why this constitutional guard to
prevent it?
The insertion of the clause, was the testimony of the eminent jurists
that framed the Constitution, to the existence of the _power_, and their
public proclamation, that the abolition of slavery was within the
appropriate sphere of legislation. The right of the owner to that which
is rightfully property, is founded on a principle of _universal law_,
and is recognised and protected by all civilized nations; property in
slaves is, by general consent, an _exception_; hence slaveholders
insisted upon the insertion of this clause in the United States
Constitution that they might secure by an _express provision_, that from
which protection is withheld, by the acknowledged principles of
universal law.[A] By demanding this provision, slaveholders consented
that their slaves should not be recognised as property by the United
States Constitution, and hence they found their claim, on the fact of
their being "_persons_, and _held_ to service."
[Footnote A: The fact, that under the articles of Confederation,
slaveholders, whose slaves had escaped into free states, had no legal
power to force them back,--that _now_ they have no power to recover, by
process of law, their slaves who escape to Canada, the South American
States, or to Europe--the case already cited in which the Supreme Court
of Louisiana decided, that residence "_for one moment_," under the laws
of France emancipated an American slave--the case of Fulton, _vs._
Lewis, 3 Har. and John's Reps., 56, where the slave of a St. Domingo
slaveholder, who brought him to Maryland in '93, was pronounced free by
the Maryland Court of Appeals--these, with other facts and cases "too
numerous to mention," are illustrations of the acknowledged truth here
asserted, that by the consent of the civilized world, and on the
principles of universal law, slaves are not "_property_," but
_self-proprietors_, and that whenever held as property under _law_, it
is only by _positive legislative acts_, forcibly setting aside the law
of nature, the common law, and the principles of universal justice and
right between man and man,--principles paramount to all law, and from
which alone law derives its intrinsic authoritative sanction.]
But waiving all concessions, whether of constitutions, laws, judicial
decisions, or common consent, I take the position that the power of
Congress to abolish slavery in the District, follows from the fact, that
as the sole legislature there, it has unquestionable power _to adopt the
Common Law, as the legal system within its exclusive jurisdiction_. This
has been done, with certain restrictions, in most of the States, either
by legislative acts or by constitutional implication. THE COMMON LAW
KNOWS NO SLAVES. Its principles annihilate slavery wherever they touch
it. It is a universal, unconditional, abolition act. Wherever slavery is
a legal system, it is so only by _statute_ law, and in violation of
common law. The declaration of Lord Chief Justice Holt, that "by the
common law, no man can have property in another," is an acknowledged
axiom, and based upon the well known common law definition of property.
"The subjects of dominion or property are _things_, as
contra-distinguished from _persons_." Let Congress adopt the common law
in the District of Columbia, and slavery there is at once abolished.
Congress may well be at home in common law legislation, for the common
law is the grand element of the United States Constitution. All its
_fundamental_ provisions are instinct with its spirit; and its
existence, principles and paramount authority, are presupposed and
assumed throughout the whole. The preamble of the Constitution plants
the standard of the Common Law immovably in its foreground. "We, the
people of the United States, in order to ESTABLISH JUSTICE, &c., do
ordain and establish this Constitution;" thus proclaiming _devotion to
justice_, as the controlling motive in the organization of the
Government, and its secure establishment the chief object of its aims.
By this most solemn recognition, the common law, that grand legal
embodiment of "_justice_" and fundamental right was made the groundwork
of the Constitution, and intrenched behind its strongest munitions. The
second clause of Sec. 9, Art. 1; Sec. 4, Art. 2, and the last clause of
Sec. 2, Art. 3, with Articles 7, 8, 9, and 13 of the Amendments, are
also express recognitions of the common law as the presiding Genius of
the Constitution.
By adopting the common law within its exclusive jurisdiction Congress
would carry out the principles of our glorious Declaration, and follow
the highest precedents in our national history and jurisprudence. It is
a political maxim as old as civil legislation, that laws should be
strictly homogeneous with the principles of the government whose will
they express, embodying and carrying them out--being indeed the
_principles themselves_, in preceptive form--representatives alike of
the nature and the power of the Government--standing illustrations of
its genius and spirit, while they proclaim and enforce its authority.
Who needs be told that slavery is in antagonism to the principles of the
Declaration, and the spirit of the Constitution, and that these and the
principles of the common law gravitate toward each other with
irrepressible affinities, and mingle into one? The common law came
hither with our pilgrim fathers; it was their birthright, their panoply,
their glory, and their song of rejoicing in the house of their
pilgrimage. It covered them in the day of their calamity, and their
trust was under the shadow of its wings. From the first settlement of
the country, the genius of our institutions and our national spirit have
claimed it as a common possession, and exulted in it with a common
pride. A century ago, Governor Pownall, one of the most eminent
constitutional jurists of colonial times, said of the common law, "In
all the colonies the common law is received as the foundation and main
body of their law." In the Declaration of Rights, made by the
Continental Congress at its first session in '74, there was the
following resolution: "Resolved, That the respective colonies are
entitled to the common law of England, and especially to the great and
inestimable privilege of being tried by their peers of the vicinage
according to the course of that law." Soon after the organization of the
general government, Chief Justice Ellsworth, in one of his decisions on
the bench of the United States Supreme Court, said: "The common law of
this country remains the same as it was before the revolution." Chief
Justice Marshall, in his decision in the case of Livingston _vs._
Jefferson, said: "When our ancestors migrated to America, they brought
with them the common law of their native country, so far as it was
applicable to their new situation and I do not conceive that the
revolution in any degree changed the relations of man to man, or the law
which regulates them. In breaking our political connection with the
parent state, we did not break our connection with each other."
[_See__Hall's Law Journal, new series._] Mr. Duponceau, in his
"Dissertation on the Jurisdiction of Courts in the United States," says,
"I consider the common law of England the _jus commune_ of the United
States. I think I can lay it down as a correct principle, that the
common law of England, as it was at the time of the declaration of
Independence, still continues to be the national law of this country, so
far as it is applicable to our present state, and subject to the
modifications it has received here in the course of nearly half a
century." Chief Justice Taylor of North Carolina, in his decision in the
case of the State _vs._ Reed, in 1823, Hawkes' N.C. Reps. 454, says, "a
law of _paramount obligation to the statute_ was violated by the
offence--COMMON LAW, founded upon the law of nature, and confirmed by
revelation." The legislation of the United States abounds in
recognitions of the principles of the common law, asserting their
paramount binding power. Sparing details, of which our national state
papers are full, we illustrate by a single instance. It was made a
condition of the admission of Louisiana into the Union, that the right
of trial by jury should be secured to all her citizens,--the United
States government thus employing its power to enlarge the jurisdiction
of the common law in this its great representative.
Having shown that the abolition of slavery is within the competency of
the law-making power, when unrestricted by constitutional provisions,
and that the legislation of Congress over the District _is_ thus
unrestricted, its power to abolish slavery there is established.
Besides this general ground, the power of Congress to abolish slavery in
the District may be based upon another equally tenable. We argue it from
the fact, that slavery exists there _now_ by an act of Congress. In the
act of 16th July, 1790, Congress accepted portions of territory offered
by the states of Maryland and Virginia, and enacted that the laws, as
they then were, should continue in force, "until Congress shall
otherwise by law provide;" thus making the slave codes of Maryland and
Virginia its own. Under these laws, adopted by Congress, and in effect
re-enacted and made laws of the District, the slaves there are now held.
Is Congress so impotent in its own "exclusive jurisdiction" that it
_cannot_ "otherwise by law provide?" If it can say, what _shall_ be
considered property, it can say what shall _not_ be considered property.
Suppose a legislature enacts, that marriage contracts shall be mere
bills of sale, making a husband the proprietor of his wife, as his _bona
fide_ property; and suppose husbands should herd their wives in droves
for the market as beasts of burden, or for the brothel as victims of
lust, and then prate about their inviolable legal property, and deny the
power of the legislature, which stamped them property, to undo its own
wrong, and secure to wives by law the rights of human beings. Would such
cant about "legal rights" be heeded where reason and justice held sway,
and where law, based upon fundamental morality, received homage? If a
frantic legislature pronounces woman a chattel, has it no power, with
returning reason, to take back the blasphemy? Is the impious edict
irrepealable? Be it, that with legal forms it has stamped wives "wares."
Can no legislation blot out the brand? Must the handwriting of Deity on
human nature be expunged for ever? Has law no power to stay the erasing
pen, and tear off the scrawled label that covers up the IMAGE OF GOD? We
now proceed to show that
THE POWER OF CONGRESS TO ABOLISH SLAVERY IN THE DISTRICT HAS BEEN, TILL
RECENTLY, UNIVERSALLY CONCEDED.
1. It has been assumed by Congress itself. The following record stands
on the journals of the House of Representatives for 1804, p. 225: "On
motion made and seconded that the House do come to the following
resolution: 'Resolved, That from and after the 4th day of July, 1805,
all blacks and people of color that shall be born within the District of
Columbia, or whose mothers shall be the property of any person residing
within said District, shall be free, the males at the age of ----, and
the females at the age of ----. The main question being taken that the
House do agree to said motion as originally proposed, it was negatived
by a majority of 46.'" Though the motion was lost, it was on the ground
of its alleged _inexpediency_ alone, and not because Congress lacked the
constitutional power. In the debate which preceded the vote, the _power_
of Congress was conceded. In March, 1816, the House of Representatives
passed the following resolution:--"Resolved, That a committee be
appointed to inquire into the existence of an inhuman and illegal
traffic in slaves, carried on in and through the District of Columbia,
and to report whether any and what measures are necessary for _putting a
stop to the same_."
On the 9th of January, 1829, the House of Representatives passed the
following resolution by a vote of 114 to 66: "Resolved, That the
Committee on the District of Columbia be instructed to inquire into the
_expediency_ of providing by _law_ for the gradual abolition of slavery
within the District, in such manner that the interests of no individual
shall be injured thereby." Among those who voted in the affirmative were
Messrs. Barney of Md., Armstrong of Va., A.H. Shepperd of N.C., Blair of
Tenn., Chilton and Lyon of Ky., Johns of Delaware, and others from slave
states.