=Legislation on the Question of State Establishment=
In order to understand the status of the slave trade and slavery in the
United States after their independence was achieved, it is necessary to
glance at the progress of the Revolution and the adoption of the new form
of government after its close.
In 1774, the contest between the mother country and the English Colonies
of North America approached a crisis, and the first Continental Congress
of delegates from the thirteen colonies assembled at Philadelphia on
the 5th of September of that year. Fifteen articles, as the basis of an
"American Association," were adopted and signed on the 20th of October,
in which, among other things the slave trade was denounced, and entire
abstinence from it and from any trade with those engaged in it, was
enjoined. This had been preceded by the Virginia resolution on the same
subject more than two months, but the war which ensued put an end to the
trade during its continuance, much more effectually than any resolutions
or laws could have done.
The "Declaration of Colonial Rights" adopted by this Congress enumerated
eleven acts of Parliament as having been passed in derogation of the
rights of the colonies since the accession of George III to the throne,
to-wit:
1. "The Sugar Act."--This act was a modification of the "Molasses Act," by
which the duties on molasses and sugar were lowered and a few unimportant
articles were added to the list of those taxed.
2. "The Stamp Act."--This act never had been executed and had been
repealed.
3 and 4. "The Two Quartering Acts."--The first of these acts had been
passed in 1765, after the close of the war against the French in Canada,
which resulted in the conquest of that country from France, greatly
to the advantage of the northern colonies. It was intended to quarter
troops on the colonies for their protection against the Indians and was
in accordance with the views of the elder Pitt, who intimated that the
colonies ought to bear a portion of the burthen of a war made for their
benefit. By the terms of this act, the colonial authorities were required
to furnish quarters, firewood, bedding, drink, soap, and candles to the
troops sent into the colonies. It had been resisted or evaded and had been
allowed to expire.
The second of these acts was a re-enactment of the first, in consequence
of the disturbance at Boston.
5. "The Tea Act."--This act imposed a duty of three pence a pound on
tea imported into the colonies, and allowed a drawback of the duty of a
shilling a pound on the tea imported into England, when re-shipped to the
colonies; the practical effect of which was to lower the duties paid by
the colonists.
6. "The Act Suspending the New York Legislature."--This act was passed in
consequence of the continued refusal of that legislature to comply with
the terms of the quartering acts.
7 and 8. "The Acts For the Trials in Great Britain of Offences Committed
in America."--These acts were passed in consequence of the resistance of
all British authority at Boston.
9. "The Boston Port Bill."--This act was passed in consequence of the
forcible destruction of tea in Boston Harbor.
10. "The Act For Regulating the Government of Massachusetts."--This Act
was passed in consequence of the continuous disturbances by the people of
that colony.
11. "The Quebec Act."--This act was for the government of Canada, and the
other colonies had no right to complain, except so far as it extended to
the country south of the lakes and west of those colonies.
It is well to keep these causes of complaint in mind, when considering the
causes for the secession of the Southern States previous to the late war,
and the course pursued towards those States.
In the war which resulted from the resistance to the acts specified,
was involved a great principle of self-government, which the British
government has since fully acknowledged in the treatment of all her
other colonies, but it must be confessed that there was a good deal of
turbulence and violence exhibited by American colonists in the first
stages of the contest. Without depreciating the public spirit displayed by
the people of Massachusetts during the war which ensued, there can be no
question but that by violence and rashness the conflict was precipitated,
and that much forbearance was show by some of the British military
officials. A candid review of the history of the difficulties preceding
actual hostilities must lead any honest mind to the conclusion that while
the British ministers acted unconstitutionally and unwisely, as the
quarrel approached its crisis, the people of Massachusetts, with whom the
conflict began, exhibited a very turbulent spirit and often acted with
unwarranted violence.
The settlers of Massachusetts, on account of their peculiar religious
theories, had from the very beginning, been impatient of all control from
the mother country and anxious to thrown it off. They had hailed the
Commonwealth with joy, had been greatly chagrined at the restoration of
the royal authority and had been very much embittered by the vacation
of their charter and the loss of the theocratic form of government, and
their ministry kept alive the fires of discontent and fanned them into a
flame on all occasions. The same feeling existed throughout New England.
Virginia on the contrary had been always a loyal colony and had not
acknowledged the Parliament or the Commonwealth in Cromwell's time, until
compelled to do so by a force sent for its conquest. Its people had hailed
the restoration with delight and there was no sentiment in the colony
demanding a separation from the mother country which was not engendered
by actual or supposed infringement of their rights as British subjects.
Though the people of that colony had little direct interest in the
grievances complained of against the British government, as the articles
taxed entered very little into their consumption, and no troops had been
quartered among them in an offensive manner since the Parliamentary
expedition, they made common cause with the people of Massachusetts, as
it was a question of power which involved the rights of all the colonies.
The difference was that the people of Massachusetts and New England were
anxious to bring on a separation, while those of Virginia were not, unless
it was necessary for the protection of the rights of all of the colonies.
The statesmen of Virginia entered warmly into the dispute both by speaking
and writing, and when the actual collision took place the people sprang to
arms and sent to Massachusetts aid in both men and provisions.
It was the attempt to coerce the people of Massachusetts, in an
unconstitutional manner, to compliance with unconstitutional laws, on the
part of the British government, more than any actual grievances of their
own, that aroused the people of Virginia to action, as that coercion if
successfully applied to one colony, might be used for the destruction of
all self-government in the others. This became the traditional policy of
Virginia as a sovereign State. After the struggle began, she gave a leader
to the continental army, her wisest and best statesmen to the colonial
councils, her arms-bearing citizens to the ranks, and her resources to the
prosecution of the war. That war which was begun in Massachusetts, long
after it ceased to exist within the limits of that State, was finally,
practically, ended on the soil of Virginia, after that soil had been
terribly ravaged by the invading armies of Great Britain.
Motives similar to those which actuated Virginia, prompted the action of
all of the other Southern colonies, and none suffered greater losses in
war for the common defence than South Carolina. This statement is not made
in order to claim for Virginia and the other Southern States more than
their due share of credit for services in the war of the Revolution, nor
to depreciate the valuable services rendered by the more northern states
of the confederation.
The war was prosecuted by the colonies as a confederacy of sovereign
States. The Continental Congress was in fact but a congress of
commissioners or embassadors, whose acts derived their validity from the
tacit adoption and sanction of the several States, and the delegates
were at all times subject to recall and substitution, by the appointment
of others--a power which was repeatedly exercised. The Declaration
of Independence itself, was made in accordance with powers expressly
delegated for that purpose to the representatives of the several
appointing powers, and derived its force not from the action of Congress,
but from the adoption of that action by those represented in that body.
In the case of Virginia, her independence had been declared by a
convention of her own, and a State Government had been actually organized
in advance of the action of Congress, and she was the first thus to
assert her sovereignty. On the 15th of May, 1776, the Virginia convention
resolved to adopt a bill of rights and frame a State government, and on
the 29th of June following, the government was put into operation by the
election of a governor and other officers--a Bill of Rights and State
Constitution having been framed and adopted in the meantime.
Articles of confederation were proposed in 1777, more than a year after
the adoption of the Declaration of Independence, for ratification by
the thirteen sovereign States. These articles required the unanimous
ratification of all of the States, and as Maryland withheld her consent
to this, until the 1st of March, 1781, they did not go into effect until
that time. In the meanwhile the Congress had continued to exercise its
permissive powers in the prosecution of the war, but it had no means of
enforcing its edicts except in the voluntary compliance of the several
States.
The first three articles were as follows:
Article I. The style of this confederacy shall be "The United States of
America."
Art. II. "Each State retains its sovereignty, freedom and independence,
and every power, jurisdiction and right, which is not by this
confederation expressly delegated to the United States in Congress
assembled."
Art. III. "The several States hereby severally enter into a firm league of
friendship with each other for their common defence, the security of their
liabilities and their mutual and general welfare, binding themselves to
assist each other against all force opposed to, or attacks made upon them,
or any of them, on account of religion, sovereignty, trade or any other
pretence whatever."
The other articles of confederation conferred upon Congress very little
more power than it had been exercising. All important measures required
the concurrence of nine States, the votes being given by the delegates
from each State as a unit, and not in their individual capacity.
The right of the States to recall their delegates and to appoint others
was expressly reserved, so that five States acting together, could at any
time block the government, and the latter had no means of enforcing its
decrees when made, but had to rely upon the voluntary compliance of the
States as before. It will thus be seen that the government organized under
the articles of confederation remained still a mere confederacy of several
independent States. When peace was finally made with Great Britain, that
power recognized the sovereignty and independence of the several States
of New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South
Carolina and Georgia by name, and not the sovereignty and independence of
the United States.
After the treaty of peace, under the navigation laws of Great Britain,
American vessels trading with that country, were restricted to the
importation of products of the several States to which they belonged,
which put those States upon the footing of so many separate nations.
The action of the several States upon the subject of slavery and the slave
trade during the war and afterwards to the time of the adoption of the
Constitution of the United States was as follows:
Delaware, as before stated, by her constitution adopted in 1776,
prohibited the further introduction of slaves.
Virginia did the same thing by her law adopted in 1778.
Pennsylvania, whose legislature had ceased to be under the control of the
Quakers, as they refused to take part in the Revolution, adopted a law in
1780, prohibiting the further introduction of slaves and giving freedom to
all children of slave mothers born after its passage.
Massachusetts incorporated a declaration in her bill of rights adopted in
1780, that "all men are born free and equal," and under that declaration
it was decided by the Supreme Court of that State in 1783, that slavery
was prohibited. It cannot be claimed that this declaration was intended
to have that effect, for if such had been the case it would not have been
left to judicial interpretation to give it, but an express provision
would have been incorporated on the subject. It was a species of judicial
legislation which was submitted to because no important interest was at
stake. There were a little over 6,000 slaves in Massachusetts at the
date of the Revolution, distributed in small numbers among the owners
and employed mostly as household servants. The population was largely
engaged in commerce, fisheries, manufactures, etc., and the character
of the agriculture was not at all adapted to slave labor. Nothing of
consequence therefore, was to be gained by contesting the validity of the
decision, and it was the easiest way of getting rid of the matter by quiet
submission.
New Hampshire adopted a similar clause in her second constitution in 1783,
and under that it was held that freedom was guaranteed to all children
born after its adoption.
Maryland adopted in 1783, laws in regard to the introduction of slaves
similar to those of Virginia.
Connecticut and Rhode Island, in 1784, adopted laws on the subject of
slavery similar to those of Pennsylvania.
The effect of these laws and decisions was to put an end to the slave
trade in all of the states but North and South Carolina and Georgia; to
abolish it in Massachusetts and provide for its gradual extinction in New
Hampshire, Rhode Island, Connecticut and Pennsylvania, while it still
remained as before in the other states. It has been alleged, and probably
was true, that a large number of the slaves in the northern states were
carried to the South and sold there, to avoid the operation of the
emancipation measures which were initiated. This allegation receives very
strong confirmation from a comparison of the free colonies' population
at the north at different periods, with the number of slaves known to be
there at the date of the institution of emancipation measures, when taken
in connection with the increase to that colored population, from freed
slaves and runaways from the South.
Notwithstanding the provisions for abolishing slavery in the New England
states, the merchants and traders of those states resumed the importation
of slaves from Africa to the Carolinas and Georgia immediately after the
close of the war. North Carolina, however, had denounced the trade as
impolitic, and imposed a duty on future importations which furnished an
impediment to it, so far as that state was concerned.
The confederation which, during the war, under the pressure of the public
danger, had answered the purpose, was found to work very badly when
peace ensued and the states were no longer stimulated to comply with
the requisitions of Congress by immediate necessity. Though the states
were all vested with full powers to regulate their domestic affairs,
yet there was a large debt contracted in common which it was necessary
to provide for, and as the states were forbidden by the Articles of
Confederation to make treaties, and Congress had no power to impose taxes
or duties on imports or exports, which power rested entirely in the state
legislatures, there was a very great derangement of the finances, commerce
and business of the country, entailing very ruinous consequences upon
all classes and interests. It became, therefore, necessary to provide a
remedy for existing evils, and a convention of delegates from the states
assembled at Philadelphia in the year 1787, for the purpose of revising
the Federal system. This convention was assembled in accordance with the
recommendation of a previous one, that had assembled at Annapolis on the
invitation of Virginia, but found its powers inadequate.
The deliberations of the Philadelphia convention, which were presided over
by General Washington, resulted in the adoption of the Constitution of the
United States, for recommendation to the states for their ratification,
and by the terms of the Constitution, it was provided that it should go
into effect when ratified by nine states, as to the states ratifying it.
There were many difficulties in the way of the formation of the
Constitution by reason of conflicting views and interests, and the
instrument as framed by the convention was the result of a compromise
of those views and interests. The only questions arising in regard to
slavery was in relation to the basis of representation in Congress and
taxation, the foreign slave trade and the restoration of fugitive slaves.
The questions in regard to representation and taxation were settled
by compromise, as was that in regard to the slave trade. Virginia and
Maryland were in favor of an absolute and immediate prohibition of
the foreign slave trade, while South Carolina and Georgia opposed any
interference with it. With the two latter states some of the New England
delegates sided, and after much discussion a compromise was finally
effected, by adopting a provision prohibiting Congress from preventing,
prior to the year 1808, the importation of any persons the states might
think proper to admit, but giving the power to impose a duty on such
persons in the meantime, not to exceed $10 per head. This compromise was
effected by an arrangement between the delegates of South Carolina and
Georgia on the one side and the New England delegates on the other, by
which it was agreed to insert a provision vesting Congress with the power
to pass navigation laws by a majority vote--which was earnestly desired by
New England but was opposed by some of the other states--and to adopt the
restriction prohibiting any interference with the slave trade until the
time designated.
For the provision in regard to the slave trade as adopted, Massachusetts,
New Hampshire and Connecticut, the only New England States represented,
voted, while Virginia voted with some of the other states against it
in all its stages--the final vote being, Massachusetts, New Hampshire,
Connecticut, Maryland, North and South Carolina in the affirmative, and
New Jersey, Pennsylvania, Delaware and Virginia in the negative; absent or
not voting, New York, Rhode Island and Georgia.
The clause in regard to the restoration of fugitive slaves was adopted
without any objection from any quarter, and it was worded in almost the
identical language of the provision on the same subject contained in
the old compact of "The United Colonies of New England." Without the
provision for the return of slaves escaping into any of the states or the
public territory, not a solitary Southern State would have accepted the
Constitution, and its necessity, propriety and justice were conceded on
all sides without question. When the Constitution was submitted to the
states for ratification, it met with a good deal of opposition because
it was thought to impose too great restrictions on the rights of the
states, but it was finally ratified by the end of July, 1788, by eleven
states, and steps were taken to organize the government under it, which
was done in April, 1789, by the meeting of the first Congress under the
Constitution and the inauguration of General Washington as President.
North Carolina did not ratify the Constitution until November, 1789,
nor Rhode Island until May, 1790, and until they did ratify it they
remained as foreign nations to the other states. When the ratification
was under consideration, there was much discussion as to the construction
of various clauses, and most of the states were induced to give their
assent by the hope of adoption of amendments explaining all ambiguities
and objectionable clauses, and the ratification was accompanied with the
recommendation of such amendments as were desired.
In passing the ordinance ratifying the Constitution, the Virginia
convention adopted an explanatory preamble, declaring that when the
powers delegated should be abused they would be resumed, and the New
York convention accompanied the ratification with a declaration of the
right to withdraw it. It is curious in view of subsequent events, that
Massachusetts proposed as an amendment "That all powers not expressly
delegated to Congress should be reserved to the states," and another "That
no person be tried for any crime (cases in the military and naval service
excepted) without previous indictment by a grand jury; and that in civil
cases the right of trial by jury be preserved." The first of these was
recommended by Virginia and South Carolina also, and the last by Virginia,
and both were subsequently adopted as amendments to the Constitution
on the recommendation of the first Congress, with only a change of
phraseology not at all effecting their import. Massachusetts has changed
her views since she asserted these doctrines of states' rights and civil
liberty.
The Constitution of the United States left slavery in the states precisely
where it was before, the only provision having any reference to it
whatever being that which fixed the ratio of representation in the House
of Representatives and direct taxation; that in reference to the foreign
slave trade, and that guaranteeing the return of fugitive slaves. Had it
been proposed to insert any provision giving Congress any power over the
subject in the states, it would have been resisted, and the insertion of
such provision would have insured the rejection of the Constitution. The
government framed under this Constitution being one of delegated powers
entirely, those powers were necessarily limited to the objects for which
they were granted, but to prevent all misconception, the 9th and 10th
amendments were adopted, the first providing that "The enumeration in the
Constitution of certain rights shall not be construed to deny or disparage
others retained by the people," and the other that: "The powers not
delegated to the United States by the Constitution, nor prohibited by it
to the states, are reserved to the states respectively, or to the people."
* * * * *
It has now been shown how slavery originated in the United States and that
the Federal Constitution left its regulation in every particular, where
it belonged, that is to the several states where it existed, save only
in regard to the foreign slave trade and the guarantee for the return of
fugitive slaves as mentioned.
State action had already provided for the removal of slavery from several
of the northern states, and this was followed, later, by a law adopted in
New York in 1799, providing that all children of slaves born after the
4th of July of that year should be free, males at 28 and females at 25
years of age, and a law adopted in New Jersey in 1804, providing that all
children of slaves born after the 4th of July of that year should be free,
the males at 25 and the females at 21 years of age. This was the last of
the acts for the emancipation of slavery where it previously existed and
therefore, so far as regarded the original thirteen states, slavery was
confined to Delaware, Maryland, Virginia, North and South Carolina and
Georgia, except as to the remnants left in the other states by the acts
for gradual emancipation, which lingered in some of them for a long time.
If African slavery was a crime, who was responsible for it? Did the sole
guilt or the greater part of it rest upon the shoulders of the colonists
who purchased the slaves already ravished from their homes in the plains
and wilds of Africa, or on the shoulders of the descendants of the
original purchasers who found the institution already established as a
settled policy, or did it rest with those who procured the enslavement of
these ignorant and degraded barbarians and reaped the enormous profits
resulting from their sale in their persons?
Treating it as national or individual sin, where does the guilt lie? The
mercantile marines of Great Britain and New England are monuments to the
African slave trade, upon the profits of which they were mainly built up.
It has been often said that the assertion contained in the Declaration
of Independence "That all men are created equal, etc.," was entirely
inconsistent with the continuation of slavery in any of the United
States; and that the states which continued it were guilty of a great
inconsistency. Who had then a right to make this criticism? Was it the
Englishman, with Lord Mansfield's decision staring him in the face, and
his boast of liberty under the common law on his tongue, while his heel
was upon the neck of Ireland, his ships ploughing the main, freighted
with human merchandise packed to suffocation, and his writs of execution
levied upon the bodies of human beings to satisfy his demands? Was it the
Frenchman, who, equally guilty in the traffic in human flesh, in the name
of "Liberty, Equality and Fraternity" glutted the guillotine with the
blood of his brethren, until he himself was forced to take refuge from
his own "Liberty" under the protection of a despotism that kept watch
upon his very thoughts? Was it the Dutchman, whose ships had carried the
traffic in slaves to every clime and who landed the first cargo within the
limits of the United States? Was it the Russian, who had bleeding Poland
under his feet and caused order to reign in Warsaw, while he peopled
Siberia with every age and sex, and his ears were gladdened by the sound
of the well-plied knout? Was it the Prussian, the Austrian, the Dane, the
Swede, or the Italian? The Portuguese, the Spaniard and the Turk have not
troubled themselves about the matter.
The fact is that the assertion of independence was made by the Continental
Congress, by a resolution adopted on the 2d of July, 1776, in the
following words:
"_Resolved_, That these United Colonies are, and, of right, ought to be,
Free and Independent States, that they are absolved from all allegiance to
the British crown, and that all political connection between them and the
state of Great Britain is, and ought to be, totally dissolved."
That was the authoritative assertion of the independence of the colonies,
and the Declaration of Independence adopted afterwards was merely a
manifesto put forth to the world to show the reasons which impelled them
to the step and to justify it. The assertion that "all men are created
equal," was no more enacted by that declaration as a settled principle
than that other which defined George III to be "a tyrant and unfit to be
the ruler of a free people." The Declaration of Independence contained a
number of undoubtedly correct principles and some abstract generalities
uttered under the enthusiasm and excitement of a struggle for the right of
self-government.
The portion of it in question was not designed for the wide application
which is sought to be made of it, nor is it capable of that application.
The intention of it was to assert the right of the people, on whose
part the declaration was made, to equality under the law with all other
British subjects, and to maintain their right to set up a new government
for themselves, when the one under which they had been living had been
perverted to their oppression. If it was intended to assert the absolute
equality of all men, it was false in principle and in fact.
Taken in its literal sense, it might be construed to mean that all men
are created equal in every respect, but does any one believe, or will any
one ever believe, that the native Congo, the Hottentot or the Australian
negro, is the equal, mentally, physically and morally, of the Caucasian?
Whatever construction the words quoted and those following them may admit
of, let it be borne in mind, that they belong to the argument and not to
the fact. The separation and independence were asserted by the resolution
adopted on the 2d of July, and not by the declaration adopted on the 4th,
and the latter was no more a part of what was authoritatively established,
than the _obitur dictum_ of a judge is a part of his decision.
The truth is, that several of the statesmen of the South and especially of
Virginia, deplored slavery as an evil and expressed the hope that at some
future time, in some way that might be desired, the institution might be
abolished in such manner as to secure the welfare of both races, but none
of them could suggest any mode for doing so, and though perfectly sincere,
they contented themselves with expressing the hope that the way might be
discovered.
Slavery was a fixed fact, fastened upon the colonies by the mother
country, and in the South, the slaves bore such a proportion to the white
population and the whole business of the country was so identified with
their labor, that it was impossible to emancipate them, without entailing
on both races evils far greater than those supposed to result from the
existence of slavery itself. It was a practical question with which the
statesmen of the country had to deal as practical men, and all they could
do, was to allow the system to remain, as the best for all parties under
the circumstances, without reverting to the dangerous experiment of the
ideal schemes of a false philanthropy.
As to the slave trade, Delaware, Virginia and Maryland had already put
an end to it as soon as they were vested with the power to do so, and
North Carolina followed suit very shortly after the adoption of the
Constitution, and the prohibition would probably have been made general,
but for the combination of the New England states with the two southern
states that were in favor of having the trade continued.
It would not be amiss to notice what was transpiring in England on this
subject at the time the Federal Constitution was being adopted. Clarkson,
Wilberforce and others were agitating the question of the slave trade at
this time, and the utmost that the younger Pitt, then at the head of the
government, would venture to do, was to procure the passage of an act of
Parliament, for the mitigation of the atrocities of the "Middle Passage"
by which it was provided that slave ships should not carry beyond a
certain number of slaves in proportion to the tonnage.
Even this bill met with strong opposition and among others, from Lord
Chancellor Thurlow "the Ruler of the King's conscience." In opposing
the bill he said: "It appears that the French have offered premiums to
encourage the African trade, and that they have succeeded. The natural
presumption therefore is, that we ought to do the same." He further said:
"One witness has come to your Lordship's bar with a face of woe, his eyes
full of tears and his countenance fraught with horror, and said 'My Lords,
I am ruined if you pass this bill! I have risked £30,000 on the trade
of this year! It is all I have been able to gain by my industry, and if
I lose it, I must go to the hospital! I desire of you to think of such
things, my Lords, in your humane frenzy and to show some humanity to the
whites as well as the negroes.'"
The bill, however, passed with amendments to grant compensation for
losses, and this was as far as English statesmanship would venture to go
at that time. Was it to be expected that American statesmen should be
better, wiser and more philanthropic than English statesmen?
Shortly after the close of the war, Virginia had ceded to the
Confederation for the common benefit of all the states, the territory
northwest of the Ohio river; and Massachusetts, New York and Connecticut
had ceded their rights. (?) The claim of Connecticut skipped over
Pennsylvania and that state made a very good bargain for herself by
securing the title to the lands in what has since been known as the
"Western Reserve," though no officer or soldier or, so far as is known,
citizen of hers, had even been in the northwestern territory.
Virginia's original charter, the oldest of all covered the country, but
independent of that, it had been conquered from the Indians and British by
the forces of Virginia under George Rogers Clarke. It was a magnificent
empire which Virginia thus surrendered for the common good and for the
cause of the Union of the states, and the only compensation she asked was,
that the land grants pledged her own soldiers should be ratified.
During the sitting of the convention which framed the Constitution, the
Congress, which was in session, adopted the celebrated ordinance of 1787,
for the government of the territory northwest of the Ohio river, in
which ordinance was contained a prohibition of slavery in that territory
forever, and also a provision for the recovery of slaves escaping into the
territory similar to that incorporated into the Constitution.
At the first session of the first Congress, under the new Constitution, an
act was passed for the government of the territory northwest of the Ohio
river, by which the ordinance of 1787 was recognized and confirmed.
In 1787, South Carolina had surrendered her claim to all territory west
of the present limits, and in 1790, North Carolina ceded to the United
States that part of her territory which subsequently became the state of
Tennessee, with a stipulation, "that no regulation made or to be made by
Congress shall tend to the emancipation of slaves."
In 1791, Vermont, formed out of part of the territory of New York, with
the consent of the legislature of that state, was admitted into the Union
as one of the states and came in without slavery, which was forbidden by
her constitution.
Kentucky (formed out of the territory of Virginia, south of the Ohio
river, with the assent of her legislature) in 1792 was admitted into the
Union, and came in with slavery as it existed in Virginia and with similar
laws on the subject.
In 1793, Congress passed an act to carry into effect the provision of
the Constitution for the restitution of fugitive slaves, providing for
their delivery to the owners by order of any United States judge, or any
magistrate of the city, town or county where they might be arrested, on
due proofs of ownership, etc.
In 1796, Tennessee, formed out of the territory which had been ceded by
North Carolina, was admitted into the Union, and came in with slavery as
it existed in North Carolina and with similar laws in regard to it.
In 1798, Georgia adopted a new Constitution, in which was a clause
forbidding the importation of slaves from "Africa or any foreign country."
In this same year Congress passed an act for the establishment of the
Mississippi territory out of the territory acquired from Great Britain,
which constituted that part of British West Florida lying between a line
drawn due east from the mouth of the Yazoo to the Chattahoochie river
and the 31st degree of latitude. The act provided for the government and
organization of the Mississippi territory in every respect like the North
Western territory, except that slavery was not to be prohibited, but an
amendment was incorporated into the act without opposition, on motion of a
representative from South Carolina, prohibiting the introduction of slaves
into the territory from without the United States.
Immediately after the adoption of the Constitution, South Carolina had
passed a law prohibiting the introduction of slaves from foreign countries
for a limited period, which was continued by renewal from time to time,
and as North Carolina had adopted a permanent law on the subject, the
foreign slave trade was now prohibited in all of the states as well as
in the public territories, but it continued to be carried on by English,
New England and New York traders within the limits of South Carolina and
Georgia despite the laws.
In 1802, Georgia ceded to the United States all of her territory west of
her present limits, including her claim to the Mississippi territory.
This cession including in it the Mississippi territory, embraced all of
the states of Mississippi and Alabama which was north of the 31st degree
of latitude and the compact made with Georgia stipulated that when the
population reached the number of 60,000, the ceded territory should be
erected into a state on the conditions contained in the ordinance of 1787,
"That article only excepted which prohibits slavery."
In 1803, on the complaint of South Carolina of the importation, in
violation of her laws, of slaves from Africa, as well as of free persons
from the French West Indies, Congress passed an act imposing a fine of
$1,000 on the captain of a vessel for the importation of such persons in
violation of the laws of a state, with forfeiture of the vessel. Next
year, however, South Carolina repealed her laws against the African slave
trade, and it continued to be lawful there until 1808.
In the same year Ohio, erected out of part of the northwestern territory,
was admitted into the Union and came in without slavery.
In this year Louisiana, which had been re-ceded to France by Spain, was
ceded to the United States by the French government, with a stipulation
in the treaty of cession that the inhabitants should be secure in their
liberty, property and religion and should be admitted, as soon as
possible, according to the principles of the Federal Constitution to the
enjoyment of the rights of citizens of the United States. The territory
thus ceded, embraced as claimed by the United States, all of the territory
west of the Mississippi and south of the 31st degree of latitude to the
western boundary of the old Spanish province of Florida. Slavery existed
in Louisiana at the time of its acquisition, having been established there
by the French government, and there could be no question as to the meaning
of the guarantee to the inhabitants of security in their property, as the
right of property in slaves was universally acknowledged in all of the
civilized world, and both of the contracting parties recognized it.
In 1804, Congress passed an act organizing the ceded province of Louisiana
into the Territory of Orleans and the District of Louisiana, the former
to embrace all of the territory south of the 33rd degree of latitude; the
latter to embrace that part north of the same degree. A provision was
embraced in the act that no slaves should be carried into the Territory
of Orleans or the District of Louisiana, except from some part of the
United States by citizens removing thither as actual settlers, and this
permission was not to extend to negroes brought into the United States
since 1798. This was a direct admission of the right of the people to
remove into the territory with all of their property, including slaves,
and the restriction as to negroes brought into the United States since
1798 was in consequence of the fact that, from that time to the passage of
the act, the introduction of such persons was prohibited by the laws of
all of the States, showing that the right to introduce slaves was regarded
as resulting under the constitution from the rights under the laws of the
several States and from no other.
By an act passed at the same session, all of the territory ceded by
Georgia was included in the territory of Mississippi.
In 1805, by Act of Congress, the Territory of Orleans was given a similar
government to that of Mississippi, and the District of Louisiana was made
a territory of the second class, that is with the power of legislation
vested in the governor and judges of the territory. Settlements had been
previously made within the limits of the District of Louisiana on the
Arkansas River and within the present limits of Missouri, and slavery had
been carried there by settlers from the slave States. The act organizing
the territory of Louisiana provided for continuing in force all of the
existing laws and regulations until repealed by the legislature, and
thereby gave direct recognition of the system of slavery, as it had not
only been protected by the law organizing the District of Louisiana, but
existed by operation of the old French and Spanish laws still in force.
In 1807, at the second session of the 9th Congress, on the recommendation
of Mr. Jefferson, then President, an act was passed for the prohibition
of the slave trade from foreign countries to the United States, to take
effect on the 1st day of January, 1808. Up to that time the trade had
been continued by English, New England, and New York traders to South
Carolina and Georgia by evading the laws against it, when such were in
force, but it ceased after the United States law went into effect; many
slaves were introduced into the port of Charleston within the last four
years prior to the time when the law went into effect, brought in by
English and Northern vessels.
In the same year and about the same time that the United States law was
passed, under the brief ministry of Lord Grenville, the Parliament of
Great Britain passed the act to abolish the trade on the part of British
subjects, though not without serious opposition. Among the opponents of
the measure was another Lord Chancellor of England, Lord Eldon, at that
time for a short period out of the office which he had held for many
years, and to which he returned in about two months after the passage of
the bill to continue in it until the year 1827. In opposing the bill, Lord
Eldon said: "I do not believe the measure now proposed would diminish the
transport of negroes, or that a single individual would be preserved by
it, at the same time, that it would be utterly destructive of the British
interests involved in that commerce." He asked "was it right because
there was a change of men and of public measures in consequence, that the
interests of those who petitioned against the bill should be disregarded
and what was before considered fit matter of enquiry should now be
rejected as immaterial and inapplicable?"
In the argument of Wilberforce and others, in favor of the measure, it
was shown that there had never been any natural increase of the slaves in
the British and West India Islands--the excess of deaths over births in
Jamaica being as follows:
From 1698 to 1730, 3 1/2 per cent.
" 1730 " 1755, 2 1/2 " "
" 1755 " 1769, 1 3/4 " "
" 1769 " 1780, 3/5 " "
" 1780 " 1800, 1/24 " "
The supply had therefore been kept up by constant importations to meet
the growing demands and the advocates of the measure urged the following
reasons for its adoption:
"The grand, the decisive advantage which recommends the abolition of
the slave trade is, that by closing the supply of foreign negroes to
which the planters have hitherto been accustomed to trust for all of
their undertakings, we will compel them to promote the multiplication
of the slaves on their estates; and it is obvious that this cannot be
done without improving their physical and moral condition. Thus not only
will the inhuman traffic itself be prevented in so far at least as the
inhabitants of this country are concerned, but a provision will be made
for the progressive amelioration of the black population in the West
Indies, and that too on the securest of all foundations, the interests and
selfish desires of the masters in whose hands they are placed."
It seems from this that "slave breeding" was not considered a crime by the
philanthropists of that day but this discovery was reserved for those of a
later time.
Slavery in the United States has now been brought down to the time of the
abolition of the slave trade by both the United States and Great Britain,
and it will be seen that the former government had no jurisdiction over
the matter in any way, except to give protection to that species of
property in the states where it existed, in the same way that it was
bound to protect every other species of property within the scope of its
delegated powers. Slavery existed in the states prior to the creation
of the government and independent of it, and the states in forming that
government as sovereign states, reserved to themselves the exclusive power
of continuing or discontinuing it at their option. Not only was this so
with regard to the original states, but by express stipulation with the
states of North Carolina and Georgia at the time of their cession of
territory. Congress had bound itself not to interfere with slavery in that
territory.
Kentucky had been formed out of part of Virginia and was admitted into
the Union upon the same footing as that state, and by the treaty with
France upon the acquisition of Louisiana, the faith of the United States
was pledged to respect and protect the right of property in slaves within
the limits of the acquired territory in the same way that it was pledged
to respect and protect the right of property in every thing else. This
embraced all of the territory within the limits of the United States
except the northwestern territory, and to that the prohibition against
slavery had been extended by the ordinance of 1787, prior to the adoption
of the Federal Constitution. The validity of that ordinance has been
disputed, and certainly if it had any validity, that was given by the
assent of Virginia from whom the territory was acquired. The act for the
organization of the government of the Northwestern territory recognized
the validity of the restriction contained in the ordinance, and did not
create it.
The states which had thought proper to abolish or exclude slavery because
it was not to their interests to have it, had no right to complain of
its existence in other states. If they did not desire to be allied to
states which tolerated slavery, then they should have refused to ratify
the Constitution. Having ratified it, the faith of those states became
pledged by every consideration that can bind states as communities, or
men as individuals, to respect the institutions, rights and property of
the other states and to faithfully abide by all of the compromises and
guaranties of the Constitution. They were bound to respect and abide
by them not only in the capacity of states, but they were bound by the
exercise of their just powers of legislation and restraint, to compel
their citizens to respect and abide by them. This obligation extended not
merely to abstaining from all violent interference and active measures
of wrong, but from all agitation or incitement to others to do wrong, by
disturbing the peace, property or rights of other states and the citizens
thereof.
The Constitution did not make the general government censors over the
morals or domestic institutions of the several states, nor did it make
the states or the citizens thereof censors of the moral or domestic
institutions of each other. It was merely a compact formed between
sovereign states for the common defence and protection of each other in
their rights and liberties, as they existed before its formation.