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." ]