solely in the Congress of the United States; and since the power of the
people of a state to abolish slavery within their own limits, results
from their entire sovereignty within that state, so the power of
Congress to abolish slavery in the District, results from its entire
_sovereignty_ within the District. If it be objected that Congress can
have no more power over the District, than was held by the legislatures
of Maryland and Virginia, we ask what clause in the constitution
graduates the power of Congress by the standard of a state legislature?
Was the United States' constitution worked into its present shape under
the measuring line and square of Virginia and Maryland? and is its power
to be bevelled down till it can run in the grooves of state legislation?
There is a deal of prating about constitutional power over the District,
as though Congress were indebted for it to Maryland and Virginia. The
powers of those states, whether few or many, prodigies or nullities,
have nothing to do with the question. As well thrust in the powers of
the Grand Lama to join issue upon, or twist papal bulls into
constitutional tether, with which to curb congressional action. The
Constitution of the United States gives power to Congress, and takes it
away, and _it alone_. Maryland and Virginia adopted the Constitution
_before_ they ceded to the United States the territory of the District.
By their acts of cession, they abdicated their own sovereignty over the
District, and thus made room for that provided by the United States'
constitution, which sovereignty was to commence as soon as a cession of
territory by states, and its acceptance by Congress, furnished a sphere
for its exercise. That the abolition of slavery is within the sphere of
legislation, I argue,
2. FROM THE FACT, THAT SLAVERY, AS A LEGAL SYSTEM, IS THE CREATURE OF
LEGISLATION. The law, by _creating_ slavery, not only affirmed its
_existence_ to be within the sphere and under the control of
legislation, but equally, the _conditions_ and _terms_ of its existence,
and the _question_ whether or not it _should_ exist. Of course
legislation would not travel _out_ of its sphere, in abolishing what is
_within_ it, and what was recognised to be within it, by its own act.
Cannot legislatures repeal their own laws? If law can take from a man
his rights, it can give them back again. If it can say, "your body
belongs to your neighbor," it can say, "it belongs to _yourself_." If it
can annul a man's right to himself, held by express grant from his
Maker, and can create for another an _artificial_ title to him, can it
not annul the artificial title, and leave the original owner to hold
himself by his original title?
3. THE ABOLITION OF SLAVERY HAS ALWAYS BEEN CONSIDERED WITHIN THE
APPROPRIATE SPHERE OF LEGISLATION. Almost every civilized nation has
abolished slavery by law. The history of legislation since the revival
of letters, is a record crowded with testimony to the universally
admitted competency of the law-making power to abolish slavery. It is so
manifestly an attribute not merely of absolute sovereignty, but even of
ordinary legislation, that the competency of a legislature to exercise
it, may well nigh be reckoned among the legal axioms of the civilized
world. Even the night of the dark ages was not dark enough to make this
invisible.
The Abolition decree of the great council of England was passed in 1102.
The memorable Irish decree, "that all the English slaves in the whole of
Ireland, be immediately emancipated and restored to their former
liberty," was issued in 1171. Slavery in England was abolished by a
general charter of emancipation in 1381. Passing over many instances of
the abolition of slavery by law, both during the middle ages and since
the reformation, we find them multiplying as we approach our own times.
In 1776 slavery was abolished in Prussia by special edict. In St.
Domingo, Cayenne, Guadeloupe, and Martinique, in 1794, where more than
690,000 slaves were emancipated by the French government. In Java, 1811;
in Ceylon, 1815; in Buenos Ayres, 1816; in St. Helena, 1819; in
Colombia, 1821; by the Congress of Chili in 1821; in Cape Colony, 1823;
in Malacca, 1825; in the southern provinces of Birmah, 1826; in Bolivia,
1826; in Peru, Guatemala, and Monte Video, 1828, in Jamaica, Barbadoes,
Bermudas, Bahamas, the Mauritius, St. Christophers, Nevis, the Virgin
Islands, Antigua, Montserrat, Dominica, St. Vincents, Grenada, Berbice,
Tobago, St. Lucia, Trinidad, Honduras, Demarara, and the Cape of Good
Hope, on the 1st of August, 1834. But waving details, suffice it to say,
that England, France, Spain, Portugal, Sweden, Denmark, Austria,
Prussia, and Germany, have all and often given their testimony to the
competency of the legislative power to abolish slavery. In our own
country, the Legislature of Pennsylvania passed an act of abolition in
1780, Connecticut, in 1784; Rhode Island, 1784; New-York, 1799;
New-Jersey, in 1804; Vermont, by Constitution, in 1777; Massachusetts,
in 1780; and New Hampshire, in 1784.
When the competency of the law-making power to abolish slavery, has thus
been recognised every where and for ages, when it has been embodied in
the highest precedents, and celebrated in the thousand jubilees of
regenerated liberty, is it an achievement of modern discovery, that such
a power is a nullity?--that all these acts of abolition are void, and
that the millions disenthralled by them, are, either themselves or their
posterity, still legally in bondage?
4. LEGISLATIVE POWER HAS ABOLISHED SLAVERY IN ITS PARTS. The law of
South Carolina prohibits the working of slaves more than fifteen hours
in the twenty-four. In other words, it takes from the slaveholder his
power over nine hours of the slave's time daily; and if it can take nine
hours it may take twenty-four. The laws of Georgia prohibit the working
of slaves on the first day of the week; and if they can do it for the
first, they can for the six following.
The law of North Carolina prohibits the "immoderate" correction of
slaves. If it has power to prohibit immoderate correction, it can
prohibit _moderate_ correction--_all_ correction, which would be virtual
emancipation; for, take from the master the power to inflict pain, and
he is master no longer. Cease to ply the slave with the stimulus of
fear; and he is free.
The Constitution of Mississippi gives the General Assembly power to make
laws "to oblige the owners of slaves to _treat them with humanity_." The
Constitution of Missouri has the same clause, and an additional one
making it the DUTY of the legislature to pass such laws as may be
necessary to secure the _humane_ treatment of the slaves. This grant to
those legislatures, empowers them to decide what _is_ and what is _not_
"humane treatment." Otherwise it gives no "power"--the clause is mere
waste paper, and flouts in the face of a befooled legislature. A clause
giving power to require "humane treatment" covers all the _particulars_
of such treatment--gives power to exact it in _all respects--requiring_
certain acts, and _prohibiting_ others--maiming, branding, chaining
together, separating families, floggings for learning the alphabet, for
reading the Bible, for worshiping God according to conscience--the
legislature has power to specify each of these acts--declare that it is
not "_humane_ treatment," and PROHIBIT it.--The legislature may also
believe that driving men and women into the field, and forcing them to
work without pay, is not "humane treatment," and being Constitutionally
bound "to _oblige_" masters to practise "humane treatment"--they have
the power to _prohibit such_ treatment, and are bound to do it.
The law of Louisiana makes slaves real estate, prohibiting the holder,
if he be also a _land_ holder, to separate them from the soil.[A] If it
has power to prohibit the sale _without_ the soil, it can prohibit the
sale _with_ it; and if it can prohibit the _sale_ as property, it can
prohibit the _holding_ as property. Similar laws exist in the French,
Spanish, and Portuguese colonies.
[Footnote A: Virginia made slaves real estate by a law passed in 1705.
(_Beverly's Hist. of Va_., p. 98.) I do not find the precise time when
this law was repealed, probably when Virginia became the chief slave
breeder for the cotton-growing and sugar-planting country, and made
young men and women "from fifteen to twenty-five" the main staple
production of the State.]
The law of Louisiana requires the master to give his slaves a certain
amount of food and clothing. If it can oblige the master to give the
slave _one_ thing, it can oblige him to give him another: if food and
clothing, then wages, liberty, his own body.
By the laws of Connecticut, slaves may receive and hold property, and
prosecute suits in their own name as plaintiffs: [This last was also the
law of Virginia in 1795. See Tucker's "Dissertation on Slavery," p. 73.]
There were also laws making marriage contracts legal, in certain
contingencies, and punishing infringements of them, ["_Reeve's Law of
Baron and Femme_," p. 340-1.] Each of the laws enumerated above, does,
_in principle_, abolish slavery; and all of them together abolish it in
fact. True, not as a _whole_, and at a _stroke_, nor all in one place;
but in its _parts_, by piecemeal, at divers times and places; thus
showing that the abolition of slavery is within the boundary of
legislation.
5. THE COMPETENCY OF THE LAW-MAKING POWER TO ABOLISH SLAVERY, HAS BEEN
RECOGNIZED BY ALL THE SLAVEHOLDING STATES, EITHER DIRECTLY OR BY
IMPLICATION. Some States recognize it in their _Constitutions_, by
giving the legislature power to emancipate such slaves as may "have
rendered the state some distinguished service, "and others by express
prohibitory restrictions. The Constitution of Mississippi, Arkansas, and
other States, restrict the power of the legislature in this respect. Why
this express prohibition, if the law-making power _cannot_ abolish
slavery? A stately farce, indeed, to construct a special clause, and
with appropriate rites induct it into the Constitution, for the express
purpose of restricting a nonentity!--to take from the law-making power
what it _never had_, and what _cannot_ pertain to it! The legislatures
of those States have no power to abolish slavery, simply because their
Constitutions have expressly _taken away_ that power. The people of
Arkansas, Mississippi, &c., well knew the competency of the law-making
power to abolish slavery, and hence their zeal to _restrict_ it.
The slaveholding States have recognised this power in their _laws_. The
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 [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. (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 than 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, of Virginia, 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 a 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."
7. 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 La. made the same decision in the case of Forsyth vs.
Nash, 4 Martin's La. Reps. 395. The same doctrine was laid down by Judge
Porter, (late United States Senator from La.,) 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 there 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?"
8. THE CONSTITUTION OF THE UNITED STATES RECOGNISES 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."