[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--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_," 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.]

9. CONGRESS 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 the 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 embodyment 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 makes war upon 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." [_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.

We argue it further, 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." 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 should enact 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?

II. 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. 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 Del., and others from slave

states.

2. IT HAS BEES CONCEDED BY COMMITTEES OF CONGRESS, OF THE DISTRICT of

COLUMBIA.--In a report of the committee on the District, Jan. 11, 1837,

by their chairman, Mr. Powell of Va., there is the following

declaration:--"The Congress of the United States, has by the

constitution exclusive jurisdiction over the District, and has power

upon this subject, (_slavery_,) as upon all other subjects of

legislation, to exercise _unlimited discretion_." Reps. of Comms. 2d

Sess. 19th Cong. v. iv. No. 43. In December, 1831, the committee on the

District, Dr. Doddridge of Va., Chairman, reported, "That until the

adjoining states act on the subject, (slavery) it would be (not

_unconstitutional_ but) unwise and impolitic, if not unjust, for

Congress to interfere." In April, 1836, a special committee on abolition

memorials reported the following resolutions by their Chairman, Mr.

Pinckney of South Carolina: "Resolved, That Congress possesses no

constitutional authority to interfere in any way with the institution of

slavery in any of the states of this confederacy."

"Resolved, That Congress _ought not to interfere_ in any way with

slavery in the District of Columbia." "Ought not to interfere,"

carefully avoiding the phraseology of the first resolution, and thus in

effect conceding the constitutional power. In a widely circulated

"Address to the electors of the Charleston District," Mr. Pinkney is

thus denounced by his own constituents: "He has proposed a resolution

which is received by the plain common sense of the whole country as a

concession that Congress has authority to abolish slavery in the

District of Columbia."

3. IT HAS BEEN CONCEDED BY THE CITIZENS OF THE DISTRICT. A petition for

the gradual abolition of slavery in the District, signed by nearly

eleven hundred of its citizens, was presented to Congress, March 24,

1827. Among the signers to this petition, were Chief Justice Cranch,

Judge Van Ness, Judge Morsel, Prof. J.M. Staughton, and a large number

of the most influential inhabitants of the District. Mr. Dickson, of New

York, asserted on the floor of Congress in 1835, that the signers of

this petition owned more than half of the property in the District. The

accuracy of this statement has never been questioned.

THIS POWER HAS BEEN CONCEDED BY GRAND JURIES OF THE DISTRICT. The Grand

jury of the county of Alexandria, at the March term, 1802, presented the

domestic slave trade as a grievance, and said, "We consider these

grievances demanding _legislative_ redress." Jan. 19, 1829, Mr.

Alexander, of Virginia, presented a representation of the grand jury in

the city of Washington, remonstrating against "any measure for the

abolition of slavery within said District, unless accompanied by

measures for the removal of the emancipated from the same;" thus, not

only conceding the power to emancipate slaves, but affirming an

additional power, that of _excluding them when free_. Journal H.R.

1828-9, p. 174.

4. THIS POWER HAS BEEN CONCEDED BY STATE LEGISLATURES. In 1828 the

Legislature of Pennsylvania instructed their Senators in Congress "to

procure, if practicable, the passage of a law to abolish slavery in the

District of Columbia." Jan. 28, 1829, the House of Assembly of New-York

passed a resolution, that their "Senators in Congress be instructed to

make every possible exertion to effect the passage of a law for the

abolition of Slavery in the District of Columbia." In February, 1837,

the Senate of Massachusetts "Resolved, That Congress having exclusive

legislation in the District of Columbia, possess the right to abolish

slavery and the slave trade therein." The House of Representatives

passed the following resolution at the same session: "Resolved, That

Congress having exclusive legislation in the District of Columbia,

possess the right to abolish slavery in said District."

November 1, 1837, the Legislature of Vermont, "Resolved, that Congress

have the full power by the constitution to abolish slavery and the slave

trade in the District of Columbia, and in the territories."

May 30, 1836, a committee of the Pennsylvania Legislature reported the

following resolution: "Resolved, That Congress does possess the

constitutional power, and it is expedient to abolish slavery and the

slave trade within the District of Columbia."

In January, 1836, the Legislature of South Carolina "Resolved, That we

should consider the abolition of Slavery in the District of Columbia as

a violation of the rights of the citizens of that District derived from

the _implied_ conditions on which that territory was ceded to the

General Government." Instead of denying the constitutional power, they

virtually admit its existence, by striving to smother it under an

_implication_. In February, 1836, the Legislature of North Carolina

"Resolved, That, although by the Constitution _all legislative power_

over the District of Columbia is vested in the Congress of the United

States, yet we would deprecate any legislative action on the part of

that body towards liberating the slaves of that District, as a breach of

faith towards those States by whom the territory was originally ceded.

Here is a full concession of the _power_. February 2, 1836, the Virginia

Legislature passed unanimously the following resolution: "Resolved, by

the General Assembly of Virginia, that the following article be proposed

to the several states of this Union, and to Congress, as an amendment of

the Constitution of the United States: "The powers of Congress shall not

be so construed as to authorize the passage of any law for the

emancipation of slaves in the District of Columbia, without the consent

of the individual proprietors thereof, unless by the sanction of the

Legislatures of Virginia and Maryland, and under such conditions as they

shall by law prescribe."

Fifty years after the formation of the United States' constitution the

states are solemnly called upon by the Virginia Legislature, to amend

that instrument by a clause asserting that, in the grant to Congress of

"exclusive legislation in all cases whatsoever" over the District, the

"case" of slavery is not included!! What could have dictated such a

resolution but the conviction that the power to abolish slavery is an

irresistible inference from the constitution _as it is_. The fact that

the same legislature passed afterward a resolution, though by no means

unanimously, that Congress does not possess the power, abates not a

tittle of the testimony in the first resolution. March 23d, 1824, "Mr.

Brown presented the resolutions of the General Assembly of Ohio,

recommending to Congress the consideration of a system for the gradual

emancipation of persons of color held in servitude in the United

States." On the same day, "Mr. Noble, of Indiana, communicated a

resolution from the legislature of that state, respecting the gradual

emancipation of slaves within the United States." Journal of the United

States Senate, for 1824-5, p. 231.

The Ohio and Indiana resolutions, by taking for granted the _general_

power of Congress over the subject of slavery, do virtually assert its

_special_ power within its _exclusive_ jurisdiction.

5. THIS POWER HAS BEEN CONCEDED BY BODIES OF CITIZENS IN THE SLAVE

STATES. The petition of eleven hundred citizens of the District, has

been already mentioned. "March 5, 1830, Mr. Washington presented a

memorial of inhabitants of the county of Frederick, in the state of

Maryland, praying that provision be made for the gradual abolition of

slavery in the District of Columbia." Journal H.R. 1829-30, p. 358.

March 30, 1828. Mr. A.H. Shepperd, of North Carolina, presented a

memorial of citizens of that state, "praying Congress to take measures

for the entire abolition of slavery in the District of Columbia."

Journal H.R. 1829-30, p. 379.

January 14, 1822. Mr. Rhea, of Tennessee, presented a memorial of

citizens of that state, praying "that provision may be made, whereby all

slaves which may hereafter be born in the District of Columbia, shall be

free at a certain period of their lives." Journal H.R. 1821-22, p. 142.

December 13, 1824. Mr. Saunders of North Carolina, presented a memorial

of citizens of that state, praying "that measures may be taken for the

gradual abolition of slavery in the United States." Journal H.R.

1824-25, p. 27.

December 16, 1828. "Mr. Barnard presented the memorial of the American

Convention for promoting the abolition of slavery, held in Baltimore,

praying that slavery may be abolished in the District of Columbia."

Journal U.S. Senate, 1828-29, p. 24.

6. DISTINGUISHED STATESMEN AND JURISTS IN THE SLAVEHOLDING STATES, HAVE

CONCEDED THIS POWER. The testimony of Messrs. Doddridge, and Powell, of

Virginia, Chief Justice Cranch, and Judges Morsel and Van Ness, of the

District, has already been given. In the debate in Congress on the

memorial of the Society of Friends, in 1790, Mr. Madison, in speaking of

the territories of the United States, explicitly declared, from his own

knowledge of the views of the members of the convention that framed the

constitution, as well as from the obvious import of its terms, that in

the territories, "Congress have certainly the power to regulate the

subject of slavery." Congress can have no more power over the

territories than that of "exclusive legislation in all cases

whatsoever," consequently, according to Mr. Madison, "it has certainly

the power to regulate the subject of slavery in the" _District_. In

March, 1816, Mr. Randolph of Va. introduced a resolution for putting a

stop to the domestic slave trade within the District. December 12, 1827,

Mr. Barney, of Md. presented a memorial for abolition in the District,

and moved that it be printed. Mr. McDuffie, of S.C., objected to the

printing, but "expressly admitted the right of Congress to grant to the

people of the District any measures which they might deem necessary to

free themselves from the deplorable evil."--[See letter of Mr. Claiborne

of Miss. to his constituents, published in the Washington Globe, May 9,

1836.] The sentiments of Mr. Clay, of Kentucky, on the subject are well

known. In a speech before the U.S. Senate, in 1836, he declared the

power of Congress to abolish slavery in the District "unquestionable."

Messrs. Blair, of Tenn., and Chilton, Lyon, and R.M. Johnson, of Ky.,

A.H. Shepperd, of N.C., Messrs. Armstrong and Smyth, of Va., Messrs.

Dorsey, Archer, and Barney, of Md., and Johns, of Del., with numerous

others from slave states, have asserted the power of Congress to abolish

slavery in the District. In the speech of Mr. Smyth, of Va., on the

Missouri question, January 28, 1820, he says on this point: "If the

future freedom of the blacks is your real object, and not a mere

pretence, why do you not begin _here_? Within the ten miles square, you

have _undoubted power_ to exercise exclusive legislation. _Produce a

bill to emancipate the slaves in the District of Columbia_, or, if you

prefer it, to emancipate those born hereafter."

To this may be added the testimony of the present Vice President of the

United States, Hon. Richard M. Johnson, of Kentucky. In a speech before

the U.S. Senate, Feb. 1, 1820, (National Intelligencer, April 20, 1820)

he says: "In the District of Columbia, containing a population of 30,000

souls, and probably as many slaves as the whole territory of Missouri,

THE POWER OF PROVIDING FOR THEIR EMANCIPATION RESTS WITH CONGRESS ALONE.

Why, then, this heart-rending sympathy for the slaves of Missouri, and

this cold insensibility, this eternal apathy, towards the slaves in the

District of Columbia?"

It is quite unnecessary to add, that the most distinguished northern

statesmen of both political parties, have always affirmed the power of

Congress to abolish slavery in the District: President Van Buren in his

letter of March 6, 1836, to a committee of gentlemen in North Carolina,

says, "I would not, from the light now before me, feel myself safe in

pronouncing that Congress does not possess the power of abolishing

slavery in the District of Columbia." This declaration of the President

is consistent with his avowed sentiments touching the Missouri question,

on which he coincided with such men as Daniel D. Tompkins, De Witt

Clinton, and others, whose names are a host.[A] It is consistent, also,

with his recommendation in his late message, in which, speaking of the

District, he strongly urges upon Congress "a thorough and careful

revision of its local government," speaks of the "entire dependence" of

the people of the District "upon Congress," recommends that a "uniform

system of local government" be adopted, and adds, that "although it was

selected as the seat of the General Government, the site of its public

edifices, the depository of its archives, and the residence of officers

entrusted with large amounts of public property, and the management of

public business, yet it never has been subjected to, or received, that

_special_ and _comprehensive_ legislation which these circumstances

peculiarly demanded."

[Footnote A: Mr. Van Buren, when a member of the Senate of New-York,

voted for the following preamble and resolutions, which passed

unanimously:--Jan 28th, 1820. "Whereas the inhibiting the further

extension of slavery in the United States, is a subject of deep concern

to the people of this state: and whereas, we consider slavery as an evil

much to be deplored, and that _every constitutional barrier should be

interposed to prevent its further extension_: and that the constitution

of the United States _clearly gives congress the right_ to require new

states, not comprised within the original boundary of the United States,

to _make the prohibition of slavery_ a condition of their admission into

the Union: Therefore,

"Resolved, That our Senators be instructed, and our members of Congress

be requested, to oppose the admission as a state into the Union, of an

territory not comprised as aforesaid, without making _the prohibition of

slavery_ therein an indispensable condition of admission." ]

The Anti-Slavery Examiner, Part 1 of 4 · 第 54 / 59 段