withhold from Congress the power to abolish slavery in the District. "No
person shall be deprived of life, liberty, or property, without due
process of law." All the slaves in the District have been "deprived of
liberty" by legislative acts. Now, these legislative acts "depriving"
them "of liberty," were either "due process of law," or they were _not_.
If they _were_, then a legislative act, taking from the master that
"property" which is the identical "liberty" previously taken from the
slave, would be "due process of law" _also_, and of course a
_constitutional_ act; but if the legislative acts "depriving" them of
"liberty" were _not_ "due process of law," then the slaves were deprived
of liberty _unconstitutionally_, and these acts are _void_. In that case
the _constitution emancipates them_.
If the objector reply, by saying that the import of the phrase "due
process of law," is _judicial_ process solely, it is granted, and that
fact is our rejoinder; for no slave in the District _has_ been deprived
of his liberty by "a judicial process," or, in other words, by "due
process of law;" consequently, upon the objector's own admission, every
slave in the District has been deprived of liberty _unconstitutionally_,
and is therefore _free by the constitution_. This is asserted only of
the slaves under the "exclusive legislation" of Congress.
The last clause of the article under consideration is quoted for the
same purpose: "Nor shall private property be taken for public use
without just compensation." Each of the state constitutions has a clause
of similar purport. The abolition of slavery in the District by
Congress, would not, as we shall presently show, violate this clause
either directly or by implication. Granting for argument's sake, that
slaves are "private property," and that to emancipate them, would be to
"take private property" for "public use," the objector admits the power
of Congress to do _this_, provided it will do something _else_, that is,
_pay_ for them. Thus, instead of denying _the power_, the objector not
only admits, but _affirms_ it, as the ground of the inference that
compensation must accompany it. So far from disproving the existence of
_one_ power, the objector asserts the existence of _two_--one, the power
to take the slaves from their masters, the other, the power to take the
property of the United States to pay for them.
If Congress cannot constitutionally impair the right of private
property, or take it without compensation, it cannot constitutionally,
_legalize_ the perpetration of such acts, by _others_, nor _protect_
those who commit them. Does the power to rob a man of his earnings, rob
the earner of his _right_ to them? Who has a better right to the
_product_ than the producer?--to the _interest_, than the owner of the
_principal_?--to the hands and arms, than he from whose shoulders they
swing?--to the body and soul, than he whose they _are_? Congress not
only impairs but annihilates the right of private property, while it
withholds from the slaves of the District their title to _themselves_.
What! Congress powerless to protect a man's right to _himself_, when it
can make inviolable the right to a _dog_? But, waving this, I deny that
the abolition of slavery in the District would violate this clause. What
does the clause prohibit? The "taking" of "private property" for "public
use." Suppose Congress should emancipate the slaves in the District,
what would it "_take_?" Nothing. What would it _hold_? Nothing. What
would it put to "public use?" Nothing. Instead of _taking_ "private
property," Congress, by abolishing slavery, would say "private property
shall not _be_ taken; and those who have been robbed of it already,
shall be kept out of it no longer; and since every man's right to his
own body is _paramount_, he shall be protected in it." True, Congress
may not arbitrarily take property, _as_ property, from one man and give
it to another--and in the abolition of slavery no such thing is done. A
legislative act changes the _condition_ of the slave--makes him his own
_proprietor_ instead of the property of another. It determines a
question of _original right_ between two classes of persons--doing an
act of justice to one, and restraining the other from acts of injustice;
or, in other words, preventing one from robbing the other, by granting
to the injured party the protection of just and equitable laws.
Congress, by an act of abolition, would change the condition of seven
thousand "persons" in the District, but would "take" nothing. To
construe this provision so as to enable the citizens of the District to
hold as property, and in perpetuity, whatever they please, or to hold it
as property in all circumstances--all necessity, public welfare, and the
will and power of the government to the contrary notwithstanding--is a
total perversion of its whole _intent_. The _design_ of the provision,
was to throw up a barrier against Governmental aggrandizement. The right
to "take property" for _State uses_ is one thing;--the right so to
adjust the _tenures_ by which property is held, that _each may have his
own secured to him_, is another thing, and clearly within the scope of
legislation. Besides, if Congress were to "take" the slaves in the
District, it would be _adopting_, not abolishing slavery--becoming a
slaveholder itself, instead of requiring others to be such no longer.
The clause in question, prohibits the "taking" of individual property
for public uses, to be employed or disposed of _as_ property for
governmental purposes. Congress, by abolishing slavery in the District,
would do no such thing. It would merely change the _condition_ of that
which has been recognised as a qualified property by congressional acts,
though previously declared "persons" by the constitution. More than this
is done continually by Congress and every other Legislature. Property
the most absolute and unqualified, is annihilated by legislative acts.
The embargo and non-intercourse act, prostrated at a stroke, a forest of
shipping, and sank millions of capital. To say nothing of the power of
Congress to take hundreds of millions from the people by direct
taxation, who doubts its power to abolish at once the whole tariff
system, change the seat of Government, arrest the progress of national
works, prohibit any branch of commerce with the Indian tribes or with
foreign nations, change the locality of forts, arsenals, magazines, dock
yards, &c., to abolish the Post Office system, the privilege of patents
and copyrights, &c. By such acts Congress might, in the exercise of its
acknowledged powers, annihilate property to an incalculable amount, and
that without becoming liable to claims for compensation.
Finally, this clause prohibits the taking for public use of
"_property_." The constitution of the United States does not recognise
slaves as "PROPERTY" any where, and it does not recognise them in _any
sense_ in the District of Columbia. All allusions to them in the
constitution recognise them as "persons." Every reference to them points
_solely_ to the element of _personality_; and thus, by the strongest
implication, declares that the constitution _knows_ them only as
"persons," and _will_ not recognise them in any other light. If they
escape into free States, the constitution authorizes their being taken
back. But how? Not as the property of an "owner," but as "persons;" and
the peculiarity of the expression is a marked recognition of their
_personality_--a refusal to recognise them as chattels--"persons _held_
to service." Are _oxen "held_ to service?" That can be affirmed only of
_persons_. Again, slaves give political power as "persons." The
constitution, in settling the principle of representation, requires
their enumeration in the census. How? As property? Then why not include
race horses and game cocks? Slaves, like other inhabitants, are
enumerated as "persons." So by the constitution, the government was
pledged to non-interference with "the migration or importation of such
_persons_" as the States might think proper to admit until 1808, and
authorized the laying of a tax on each "person" so admitted. Further,
slaves are recognized as "persons" by the exaction of their _allegiance_
to the government. For offences against the government slaves are tried
as _persons_; as persons they are entitled to counsel for their defence,
to the rules of evidence, and to "due process of the law," and as
_persons_ they are punished. True, they are loaded with cruel
disabilities in courts of law, such as greatly obstruct and often
inevitably defeat the ends of justice, yet they are still recognised as
_persons_. Even in the legislation of Congress, and in the diplomacy of
the general government, notwithstanding the frequent and wide departures
from the integrity of the constitution on this subject, slaves are not
recognised as _property_ without qualification. Congress has always
refused to grant compensation for slaves killed or taken by the enemy,
even when these slaves had been impressed into the United States'
service. In half a score of cases since the last war, Congress has
rejected such applications for compensation. Besides, both in
Congressional acts, and in our national diplomacy, slaves and property
are not used as convertible terms. When mentioned in treaties and state
papers it is in such a way as to distinguish them from mere property,
and generally by a recognition of their _personality_. In the invariable
recognition of slaves as _persons_, the United States' constitution
caught the mantle of the glorious Declaration, and most worthily wears
it.--It recognizes all human beings as "men," "persons," and thus as
"equals." In the original draft of the Declaration, as it came from the
head of Jefferson, it is alleged that Great Britain had "waged a cruel
war against _human_ nature itself, violating its most sacred rights of
life and liberty in the persons of a distant people, carrying them into
slavery, * * determined to keep up a market where MEN should be bought
and sold,"--thus disdaining to make the charter of freedom a warrant for
the arrest of _men_, that they might be shorn both of liberty and
humanity.
The celebrated Roger Sherman, one of the committee of five appointed to
draft the Declaration of Independence, and also a member of the
Convention that formed the United States' Constitution, said, in the
first Congress after its adoption: "The constitution _does not consider
these persons_, (slaves,) _as a species of property_."--[Lloyd's Cong.
Reg. v. 1, p. 313.] That the United States' Constitution does not make
slaves "property," is shown in the fact, that no person, either as a
citizen of the United States, or by having his domicile within the
United States' government, can hold slaves. He can hold them only by
deriving his power from _state_ laws, or from the law of Congress, if he
hold slaves within the District. But no person resident within the
United States' jurisdiction, and _not_ within the District, nor within a
state whose laws support slavery, nor "held to service" under the laws
of such state or district, having escaped therefrom, _can be held as a
slave_.
Men can hold _property_ under the United States' government though
residing beyond the bounds of any state, district, or territory. An
inhabitant of the Wisconsin Territory can hold property there under the
laws of the United States, but he cannot hold _slaves_ there under the
United States' laws, nor by virtue of the United States' Constitution,
nor upon the ground of his United States citizenship, nor by having his
domicile within the United States jurisdiction. The constitution no
where recognizes the right to "slave property," _but merely the fact
that the states have jurisdiction each in its own limits, and that there
are certain "persons" within their jurisdictions "held to service" by
their own laws_.
Finally, in the clause under consideration, "private property" is not to
be taken "without _just_ compensation." "JUST!" If justice is to be
appealed to in determining the amount of compensation, let her determine
the _grounds_ also. If it be her province to say _how much_ compensation
is "just," it is hers to say whether _any_ is "just,"--whether the slave
is "just" property _at all_, rather than a "_person_." Then, if justice
adjudges the slave to be "private property," it adjudges him to be _his
own_ property, since the right to one's _self_ is the first right--the
source of all others--the original stock by which they are
accumulated--the principal, of which they are the interest. And since
the slave's "private property" has been "taken," and since
"compensation" is impossible--there being no _equivalent_ for one's
self--the least that can be done is to restore to him his original
private property.
Having shown that in abolishing slavery, "property" would not be "taken
for public use," it may be added that, in those states where slavery has
been abolished by law, no claim for compensation has been allowed.
Indeed the manifest absurdity of demanding it, seems to have quite
forestalled the _setting up_ of such a claim.
The abolition of slavery in the District, instead of being a legislative
anomaly, would proceed upon the principles of every day legislation. It
has been shown already, that the United States' Constitution does not
recognize slaves as "property." Yet ordinary legislation is full of
precedents, showing that even _absolute_ property is in many respects
wholly subject to legislation. The repeal of the law of entailments--all
those acts that control the alienation of property, its disposal by
will, its passing to heirs by descent, with the question, who shall be
heirs, and what shall be the rule of distribution among them, or whether
property shall be transmitted at all by descent, rather than escheat to
the state--these, with statutes of limitation, and various other classes
of legislative acts, serve to illustrate the acknowledged scope of the
law-making power, even where property _is in every sense absolute_.
Persons whose property is thus affected by public laws, receive from the
government no compensation for their losses, unless the state has been
put into possession of the property taken from them.
The preamble of the United States' Constitution declares it to be a
fundamental object of the organization of the government "to ESTABLISH
JUSTICE." Has Congress _no power_ to do that for which it was made the
_depository of power_? CANNOT the United States Government fulfil the
purpose _for which it was brought into being_?
To abolish slavery, is to take from no rightful owner his property; but
to "_establish justice_" between two parties. To emancipate the slave,
is to "_establish justice_" between him and his master--to throw around
the person, character, conscience, liberty, and domestic relations of
the one, _the same law_ that secures and blesses the other. In other
words, to prevent by _legal restraints_ one class of men from seizing
upon another class, and robbing them at pleasure of their earnings,
their time, their liberty, their kindred, and the very use and ownership
of their own persons. Finally, to abolish slavery is to proclaim and
_enact_ that innocence and helplessness--now _free plunder_--are
entitled to _legal protection_; and that power, avarice, and lust, shall
no longer gorge upon their spoils under the license, and by the
ministrations of _law_! Congress, by possessing "exclusive legislation
in all cases whatsoever," has a _general protective power_ for ALL the
inhabitants of the District. If it has no power to protect _one_ man, it
has none to protect another--none to protect _any_--and if it _can_
protect _one_ man and is _bound_ to protect him, it _can_ protect
_every_ man--all men--and is _bound_ to do it. All admit the power of
Congress to protect the masters in the District against their slaves.
What part of the constitution gives the power? The clause so often
quoted,--"power of legislation in all cases whatsoever," equally in the
"_case_" of defending the blacks against the whites, as in that of
defending the whites against the blacks. The power is given also by Art.
1, Sec. 8, clause 15--"Congress shall have power to suppress
insurrections"--a power to protect, as well blacks against whites, as
whites against blacks. If the constitution gives power to protect _one_
class against the other, it gives power to protect _either_ against the
other. Suppose the blacks in the District should seize the whites, drive
them into the fields and kitchens, force them to work without pay, flog
them, imprison them, and sell them at their pleasure, where would
Congress find power to restrain such acts? Answer; a _general_ power in
the clause so often cited, and an _express_ one in that cited
above--"Congress shall have power, to suppress insurrections." So much
for a _supposed_ case. Here follows a _real_ one. The whites in the
District are _perpetrating these identical acts_ upon seven thousand
blacks daily. That Congress has power to restrain these acts in one
case, all assert, and in so doing they assert the power "in _all_ cases
whatsoever." For the grant of power to suppress insurrections, is an
_unconditional_ grant, not hampered by provisos as to the color, shape,
size, sex, language, creed, or condition of the insurgents. Congress
derives its power to suppress this _actual_ insurrection, from the same
source whence it derived its power to suppress the _same_ acts in the
case _supposed_. If one case is an insurrection, the other is. The
_acts_ in both are the same; the _actors_ only are different. In the one
case, ignorant and degraded--goaded by the memory of the past, stung by
the present, and driven to desperation by the fearful looking for of
wrongs for ever to come. In the other, enlightened into the nature of
_rights_, the principles of justice, and the dictates of the law of
love, unprovoked by wrongs, with cool deliberation, and by system, they
perpetrate these acts upon those to whom they owe unnumbered obligations
for _whole lives_ of unrequited service. On which side may palliation be
pleaded, and which party may most reasonably claim an abatement of the
rigors of law? If Congress has power to suppress such acts _at all_, it
has power to suppress them _in_ all.
It has been shown already that _allegiance_ is exacted of the slave. Is
the government of the United States unable to grant _protection_ where
it exacts _allegiance_? It is an axiom of the civilized world, and a
maxim even with savages, that allegiance and protection are reciprocal
and correlative. Are principles powerless with us which exact homage of
barbarians? _Protection is the_ CONSTITUTIONAL RIGHT _of every human
being under the exclusive legislation of Congress who has not forfeited
it by crime_.
In conclusion, I argue the power of Congress to abolish slavery in the
District, froth Art. 1, sec. 8, clause 1, of the constitution: "Congress
shall have power to provide for the common defence and the general
welfare of the United States." Has the government of the United States
no power under this grant, to legislate within its own exclusive
jurisdiction on subjects that vitally affect its interests? Suppose the
slaves in the District should rise upon their masters, and the United
States' government, in quelling the insurrection, should kill any number
of them. Could their masters claim compensation of the government?
Manifestly not; even though no proof existed that the particular slaves
killed were insurgents. This was precisely the point at issue between
those masters, whose slaves were killed by the State troops at the time
of the Southampton insurrection, and the Virginia Legislature; no
evidence was brought to show that the slaves killed by the troops were
insurgents; yet the Virginia Legislature decided that their masters were
_not entitled to compensation_. They proceeded on the sound principle,
that a government may in self protection destroy the claim of its
subjects even to that which has been recognised as property by its own
acts. If in providing for the common defence the United States
government, in the case supposed, would have power to destroy slaves
both as _property and persons_, it surely might stop half-way, destroy
them as _property_ while it legalized their existence as _persons_, and
thus provided for the common defence by giving them a personal and
powerful interest in the government, and securing their strength for its
defence.
Like other Legislatures, Congress has power to abate nuisances--to
remove or tear down unsafe buildings--to destroy infected cargoes--to
lay injunctions upon manufactories injurious to the public health--and
thus to "provide for the common defence and general welfare" by
destroying individual property, when it puts in jeopardy the public
weal.
Granting, for argument's sake, that slaves are "property" in the
District of Columbia--if Congress has a right to annihilate property in
the District when the public safety requires it, it may surely
annihilate its existence _as_ property when public safety requires it,
especially if it transform into a _protection_ and _defence_ that which
as _property_ periled the public interests. In the District of Columbia
there are, besides the United States' Capitol, the President's house,
the national offices, &c. of the Departments of State, Treasury, War,
and Navy, the General Post-office, and Patent Office. It is also the
residence of the President, all the highest officers of the government,
both houses of Congress, and all the foreign ambassadors. In this same
District there are also _seven thousand slaves_. Jefferson, in his Notes
on Va. p. 241, says of slavery, that "the State permitting one half of
its citizens to trample on the rights of the other, _transforms them
into enemies_;" and Richard Henry Lee, in the Va. House of Burgesses in
1758, declared that to those who held them, "_slaves must be natural
enemies._" Is Congress so _impotent_ that it _cannot_ exercise that
right pronounced both by municipal and national law, the most sacred and
universal--the right of self-preservation and defence? Is it shut up to
the _necessity_ of keeping seven thousand "enemies" in the heart of the
nation's citadel? Does the iron fiat of the constitution doom it to such
imbecility that it _cannot_ arrest the process that _made_ them
"enemies," and still goads to deadlier hate by fiery trials, and day by
day adds others to their number? Is _this_ providing for the common
defence and general welfare? If to rob men of rights excites their hate,
freely to restore them and make amends, will win their love.
By emancipating the slaves in the District, the government of the United
States would disband an army of "enemies," and enlist "for the common
defence and general welfare," a body guard of _friends_ seven thousand
strong. In the last war, a handful of British soldiers sacked Washington
city, burned the capitol, the President's house, and the national
offices and archives; and no marvel, for thousands of the inhabitants of
the District had been "TRANSFORMED INTO ENEMIES." Would _they_ beat back
invasion? If the national government had exercised its constitutional
"power to provide for the common defence and to promote the general
welfare," by turning those "enemies" into friends, then, instead of a
hostile ambush lurking in every thicket inviting assault, and secret
foes in every house paralyzing defence, an army of allies would have
rallied in the hour of her calamity, and shouted defiance from their
munitions of rocks; whilst the banner of the republic, then trampled in
dust, would have floated securely over FREEMEN exulting amidst bulwarks
of strength.