Front Page Titles (by Subject) CHAPTER XXIV.: POWER OF THE GENERAL GOVERNMENT OVER SLAVERY. - The Unconstitutionality of Slavery: Part Second
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CHAPTER XXIV.: POWER OF THE GENERAL GOVERNMENT OVER SLAVERY. - Lysander Spooner, The Unconstitutionality of Slavery: Part Second 
The Unconstitutionality of Slavery: Part Second (Boston: Bela Marsh, 1860).
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POWER OF THE GENERAL GOVERNMENT OVER SLAVERY.
It is a common assertion that the general government has no power over slavery in the States. If by this be meant that the States may reduce to slavery the citizens of the United States within their limits, and the general government cannot liberate them, the doctrine is nullification, and goes to the destruction of the United States government within the limits of each State, whenever such State shall choose to destroy it.
The pith of the doctrine of nullification is this, viz., that a State has a right to interpose between her people and the United States government, deprive them of its benefits, protection, and laws, and annul their allegiance to it.
If a State have this power, she can of course abolish the government of the United States at pleasure, so far as its operation within her own territory is concerned; for the government of the United States is nothing, any further than it operates upon the persons, property, and rights of the people.† If the States can arbitrarily intercept this operation, can interpose between the people and the government and laws of the United States, they can of course abolish that government. And the United States constitution, and the laws made in pursuance thereof, instead of being “the supreme law of the land,” “anything in the constitution or laws of any State to the contrary notwithstanding,” are dependent entirely upon the will of the State governments for permission to be laws at all.
A State law reducing a man to slavery, would, if valid, interpose between him and the constitution and laws of the United States annul their operation, (so far as he is concerned,) and deprive him of their benefits. It would annul his allegiance to the United States; for a slave can owe no allegiance to a government that either will not, or cannot protect him.
If a State can do this in the case of one man, she can do it in the case of any number of men, and thus completely abolish the general government within her limits.
But perhaps it will be said that a State has no right to reduce to slavery the people generally within her limits, but only to hold in slavery those who were slaves at the adoption of the constitution, and their posterity.
One answer to this argument is, that, at the adoption of the constitution of the United States, there was no legal or constitutional slavery in the States. Not a single State constitution then in existence, recognized, authorized, or sanctioned slavery. All the slaveholding then practised was merely a private crime committed by one person against another, like theft, robbery, or murder. All the statutes which the slaveholders, through their wealth and influence, procured to be passed, were unconstitutional and void, for the want of any constitutional authority in the legislatures to enact them.
But perhaps it will be said, as is often said of them now, that the State governments had all power that was not forbidden to them. But this is only one of those bald and glaring falsehoods, under cover of which, even to this day, corrupt and tyrannical legislators enact, and the servile and corrupt courts, who are made dependent upon them, sustain, a vast mass of unconstitutional legislation, destructive of men’s natural rights. Probably half the State legislation under which we live is of this character, and has no other authority than the pretence that the government has all power except what is prohibited to it. The falsehood of the doctrine is apparent the moment it is considered that our governments derive all their authority from the grants of the people. Of necessity, therefore, instead of their having all authority except what is forbidden, they can have none except what is granted.
Everybody admits that this is the true doctrine in regard to the United States government; and it is equally true of the State governments, and for the same reason. The United States constitution, (amendment 10,) does indeed specially provide that the U. S. government shall have no powers except what are delegated to it. But this amendment was inserted only as a special guard against usurpation. The government would have had no additional powers if this amendment had been omitted. The simple fact that all a government’s powers are delegated to it by the people, proves that it can have no powers except what are delegated. And this principle is as true of the State governments, as it is of the national one; although it is one that is almost wholly disregarded in practice.*
The State governments in existence in 1789 purported to be established by the people, and are either declared, or must be presumed, to have been established for the maintenance of justice, the preservation of liberty, and the protection of their natural rights. And those governments consequently had no constitutional authority whatever inconsistent with these ends, unless some particular powers of that kind were explicitly granted to them. No power to establish or sustain slavery was granted to any of them. All the slave statutes, therefore, that were in existence in the States, at the adoption of the United States constitution, were unconstitutional and void; and the people who adopted the constitution of the United States must be presumed to have known this fact, and acted upon it, because everybody is presumed to know the law. The constitution of the United States, therefore, can be presumed to have made no exceptions in favor of the slavery then existing in the States.†
But suppose, for the sake of the argument, that slavery had been authorized by the State constitutions at the time the United States constitution was adopted, the constitution of the United States would nevertheless have made it illegal; because the United States constitution was made “the supreme law of the land,” “anything in the constitution or laws of any State to the contrary notwithstanding.” It therefore annulled everything inconsistent with it, then existing in the State constitutions, as well as everything that should ever after be added to them, inconsistent with it. It of course abolished slavery as a legal institution, (supposing slavery to have had any legal existence to be abolished,) if slavery were inconsistent with anything expressed, or legally implied, in the constitution.
Slavery is inconsistent with nearly everything that is either expressed or legally implied in the constitution. All its express provisions are general, making no exception whatever for slavery. All its legal implications are that the constitution and laws of the United States are for the benefit of the whole “people of the United States,” and their posterity.
The preamble expressly declares that “We the people of the United States” establish the constitution for the purpose of securing justice, tranquillity, defence, welfare, and liberty, to “ourselves and our posterity.” This language certainly implies that all “the people” who are parties to the constitution, or join in establishing it, are to have the benefit of it, and of the laws made in pursuance of it. The only question, then, is, who were “the people of the United States?”
We cannot go out of the constitution to find who are the parties to it. And there is nothing in the constitution that can limit this word “people,” so as to make it include a part, only, of “the people of the United States.” The word, like all others, must be taken in the sense most beneficial for liberty and justice. Besides, if it did not include all the then “people of the United States,” we have no legal evidence whatever of a single individual whom it did include. There is no legal evidence whatever in the constitution, by which it can be proved that any one man was one of “the people,” which will not also equally prove that the slaves were a part of the people. There is nothing in the constitution that can prove the slaveholders to have been a part of “the people,” which will not equally prove the slaves to have been also a part of them. And there is as much authority in the constitution for excluding slaveholders from the description, “the people of the United States,” as there is for excluding the slaves. The term “the people of the United States” must therefore be held to have included all “the people of the United States,” or it can legally be held to have included none.
But this point has been so fully argued already, that it need not be dwelt upon here.*
The United States government, then, being in theory formed by, and for the benefit of, the whole “people of the United States,” the question arises, whether it have the power of securing to “the people” the benefits it intended for them? Or whether it is dependent on the State governments for permission to confer these benefits on “the people?” This is the whole question. And if it shall prove that the general government has no power of securing to the people its intended benefits, it is, in no legal or reasonable sense, a government.
But how is it to secure its benefits to the people? That is the question.
The first step, and an indispensable step, towards doing it, is to secure to the people their personal liberty. Without personal liberty, none of the other benefits intended by the constitution can be secured to an individual, because, without liberty, no one can prosecute his other rights in the tribunals appointed to secure them to him. If, therefore, the constitution had failed to secure the personal liberty of individuals, all the rest of its provisions might have been defeated at the pleasure of the subordinate governments. But liberty being secured, all the other benefits of the constitution are secured, because the individual can then carry the question of his rights into the courts of the United States, in all cases where the laws or constitution of the United States are involved.
This right of personal liberty, this sine qua non to the enjoyment of all other rights, is secured by the writ of habeas corpus. This writ, as has before been shown, necessarily denies the right of property in man, and therefore liberates all who are restrained of their liberty on that pretence, as it does all others that are restrained on grounds inconsistent with the intended operation of the constitution and laws of the United States.
Next after providing for the “public safety, in cases of rebellion and invasion,” the maintenance of courts for dispensing the privileges of this writ is the duty first in order, and first in importance, of all the duties devolved upon the general government; because, next after life, liberty is the right most important in itself; it is also indispensable to the enjoyment of all the other rights which the general government is established to secure to the people. All the other operations of government, then, are works of mere supererogation until liberty be first secured; they are nothing but a useless provision of good things for those who cannot partake of them.
As the government is bound to dispense its benefits impartially to all, it is bound, first of all, after securing “the public safety, in cases of rebellion and invasion,” to secure liberty to all. And the whole power of the government is bound to be exerted for this purpose, to the postponement, if need be, of everything else save “the public safety, in cases of rebellion and invasion.” And it is the constitutional duty of the government to establish as many courts as may be necessary, (no matter how great the number,) and to adopt all other measures necessary and proper, for bringing the means of liberation within the reach of every person who is restrained of his liberty in violation of the principles of the constitution.*
We have thus far, (in this chapter,) placed this question upon the ground that those held in slavery are constitutionally a part of “the people of the United States,” and parties to the constitution. But, although this ground cannot be shaken, it is not necessary to be maintained, in order to maintain the duty of Congress to provide courts, and all other means necessary, for their liberation.
The constitution, by providing for the writ of habeas corpus, without making any discrimination as to the persons entitled to it, has virtually declared, and thus established it as a constitutional principle, that, in this country, there can be no property in man; for the writ of habeas corpus, as has before been shown,† necessarily involves a denial of the right of property in man. By declaring that the privilege of this writ “shall not be suspended, unless when, in cases of rebellion or invasion the public safety may require it,” the constitution has imposed upon Congress the duty of providing courts, and if need be, other aids, for the issuing of this writ in behalf of all human beings within the United States, who may be restrained on claim of being property. Congress are bound by the constitution to aid, if need be, a foreigner, an alien, an enemy even, who may be restrained as property. And if the people of any of the civilized nations were now to be seized as slaves, on their arrival in this country, we can all imagine what an abundance of constitutional power would be found, and put forth, too, for their liberation.
Without this power, the nation could not sustain its position as one of the family of civilized nations; it could not fulfil the law of nations, and would therefore be liable to be outlawed in consequence of the conduct of the States. For example. If the States can make slaves of anybody, they can certainly make slaves of foreigners. And if they can make slaves of foreigners, they can violate the law of nations; because to make slaves of foreigners, is to violate the law of nations. Now the general government is the only government known to other nations; and if the States can make slaves of foreigners, and there were no power in the general government to liberate them, any one of the States could involve the whole nation in the responsibility of having violated the law of nations, and the nation would have no means of relieving itself from that responsibility by liberating the persons enslaved; but would have to meet, and conquer or die in, a war brought upon it by the criminality of the State.
This illustration is sufficient to prove that the power of the general government to liberate men from slavery, by the use of the writ of habeas corpus, is of the amplest character; that it is not confined to the cases of those who are a part of “the people of the United States,” and so parties to the constitution; that it is limited only by the territory of the country; and that it exists utterly irrespective of “anything in the constitution or laws of any State.”
This power, which is bound to be exerted for the liberation of foreigners, is bound to be exerted also for the liberation of persons born on the soil, even though it could be proved, (which it cannot,) that they are not legally parties to the constitution. The simple fact of their not being parties to the constitution, (if that fact were proved,) would no more alter the power or duty of Congress in relation to securing them the privilege of the writ of habeas corpus, than the same fact does in the case of foreigners, who confessedly are not parties to the constitution; unless, indeed, their coming into the country under the guaranty afforded by the habeas corpus clause of the constitution makes them, so far, parties to it. But this clause could operate as no guaranty of liberty to foreigners, unless it guarantied liberty to all born on the soil; for, there being no distinction of persons made, it certainly could not be claimed that it guarantied greater privileges to foreigners than to the least favored of those born on the soil. So that it will still result that, unless the constitution, (as it may be executed by the general government alone,) guaranties personal liberty to all born in the country, it does not guaranty it to foreigners coming into the country; and if it do not guaranty it to foreigners coming into the country, any single State, by enslaving foreigners, can involve the whole nation in a death struggle in support of such slavery.
If these opinions are correct, it is the constitutional duty of Congress to establish courts, if need be, in every county and township even, where there are slaves to be liberated; to provide attorneys to bring the cases before the courts; and to keep a standing military force, if need be, to sustain the proceedings.
In addition to the use of the habeas corpus, Congress have power to prohibit the slave trade between the States, which, of itself, would do much towards abolishing slavery in the northern slaveholding States. They have power also to organize, arm, and discipline the slaves as militia, thus enabling them to aid in obtaining and securing their own liberty.
[The following article was first published in 1850, as an appendix to an argument, entitle: “A Defence for Fugitive Slaves,against the Acts of Congress of February, 12, 1793 and September 18, 1850. ByLysander Spooner.” It repeats some ideas already advanced in the preceding pages; but, as it is mostly new, it has been thought worthy of preservation by being included in this volume.]
NEITHER THE CONSTITUTION, NOR EITHER OF THE ACTS OF CONGRESS OF 1793 OR 1850, REQUIRES THE SURRENDER OF FUGITIVE SLAVES.
In the preceding chapters it has been admitted, for the sake of the argument, that the constitution, and acts of Congress of 1793 and 1850, require the delivery of Fugitive Slaves. But such really is not the fact. Neither the constitutional provision, nor either of said acts of Congress, uses the word slave, nor slavery, nor any language that can legally be made to apply to slaves. The only “person” required by the constitution to be delivered up is described in the constitution as a “person held to service or labor in one state, under the laws thereof.” This language is no legal description of a slave, and can be made to apply to a slave only by a violation of all the most imperative rules of interpretation by which the meaning of all legal instruments is to be ascertained.
The word “held” is a material word, in this description. Its legal meaning is synonymous with that of the words “bound,” and “obliged.” It is used in bonds, as synonymous with those words, and in no other sense. It is also used in laws, and other legal instruments. And its legal meaning is to describe persons held by some legal contract, obligation, duty, or authority, which the law will enforce. Thus, in a bond, a man acknowledges himself “held, and firmly bound and obliged” to do certain things mentioned in the bond,—and the law will compel a fulfilment of the obligation. The laws “hold” men to do various things; and by holding them to do those things is meant that the laws will compel them to do them. Wherever a person is described in the laws as being “held” to do anything,—as to render “service or labor,” for example,—the legal meaning invariably is that he is held by some legal contract, obligation, duty, or authority, which the laws will enforce,—(either specifically, or by compelling payment of damages for non-performance.) I presume no single instance can be found, in any of the laws of this country, since its first settlement, in which the word “held” is used in any other than this legal sense, when used to describe a person who is “held” to do anything “under the laws.” And such is its meaning, and its only meaning, in this clause of the constitution. If there could be a doubt on this point, that doubt would be removed by the additional words, “under the laws,” and the word “due,” as applied to the “service or labor,” to which the person is “held.”
Now, a slave is not “held” by any legal contract, obligation, duty, or authority, which the laws will enforce. He is “held” only by brute force. One person beats another until the latter will obey him, work for him if he require it, or do nothing if he require it. This is slavery, and the whole of it. This is the only manner in which a slave is “held to service or labor.”
The laws recognize no obligation on the part of the slave to labor for or serve his master. If he refuse to labor, the law will not interfere to compel him. The master must do his own flogging, as in the case of an ox or a horse. The laws take no more cognizance of the fact whether a slave labors or not, than they do of the fact whether an ox or a horse labors.
A slave, then, is no more “held” to labor, in any legal sense, than a man would be in Massachusetts, whom another person should seize and beat until he reduced him to subjection and obedience. If such a man should escape from his oppressor, and take refuge in Carolina, he could not be claimed under this clause of the constitution, because he would not be “held” in any legal sense, (that is, by any legal contract, obligation, duty, or authority,) but only by brute force. And the same is the case in regard to slave.*
It is an established rule of legal interpretation, that a word used in laws, to describe legal rights, must be taken in a legal sense. This rule is as imperative in the interpretation of the constitution as of any other legal instrument. To prove this, let us take another example. The constitution (Art. I. Sec. 6) provides that “for any speech or debate in either house, they (the senators and representatives) shall not be questioned in any other place.” Now, this provision imposes no restriction whatever upon the senators and representatives being “questioned for any speech or debate,” by anybody and everybody, who may please to question them, or in any and every place, with this single exception, that they must not “be questioned” legally,—that is, they must not be held to any legal accountability.
It would be no more absurd to construe this provision about questioning senators and representatives, so as to make it forbid the people, in their private capacity, to ask any questions of their senators and representatives, on their return from Congress, as to their doings there, instead of making it apply to a legal responsibility, than it is to construe the words “held to service or labor” as applied to a person held simply by brute force, (as in the case supposed in Massachusetts,) instead of persons held by some legal contract, obligation, or duty, which the law will enforce.
As the slave, then, is “held to service or labor” by no contract, obligation, or duty, which the law will enforce, but only by the brute force of the master, the provision of the constitution in regard to “persons held to service or labor” can have no more legal application to him than to the person supposed in Massachusetts, who should at one time be beaten into obedience, and afterwards escape into Carolina.
The word “held” being, in law, synonymous with the word “bound,” the description, “person held to service or labor,” is synonymous with the description in another section, (Art. 1, Sec. 2,) to wit, “those bound to service for a term of years.” The addition, in the one case, of the words “for a term of years,” does not alter the meaning; for it does not appear that, in the other case, they are “held” beyond a fixed term.
In fact, everybody, courts and people, admit that “persons bound to service for a term of years,” as apprentices, and other indented servants, are to be delivered up under the provision relative to “persons held to service or labor.” The word “held,” then, is regarded as synonymous with “bound,” whenever it is wished to deliver up “persons bound to service.” If, then, it be synonymous with the word “bound,” it applies only to persons who are “bound” in a legal sense,—that is, by some legal contract, obligation, or duty, which the law will enforce. The words cannot be stretched beyond their necessary and proper legal meaning; because all legal provisions in derogation of liberty must be construed strictly. The same words that are used to describe a “person held to service or labor” by a legal contract, or obligation, certainly cannot be legally construed to include also one who is “held” only by private violence, and brute force.
Mr. Webster, in his speech of March 7th, 1850, admits that the word “held” is synonymous with the word “bound,” and that the language of the constitution itself contains no requirement for the surrender of fugitive slaves. He says:
“It may not be improper here to allude to that—I had almost said celebrated—opinion of Mr. Madison. You observe, sir, that the term slavery is not used in the constitution. The constitution does not require that fugitive slaves shall be delivered up; it requires that persons bound to service in one state, and escaping into another, shall be delivered up. Mr. Madison opposed the introduction of the term slave or slavery into the constitution; for he said he did not wish to see it recognized by the constitution of the United States of America that there could be property in men.”
Had the constitution required only that “persons bound to service or labor” should be delivered up, it is evident that no one would claim that the provision applied to slaves. Yet it is perfectly evident, also, that the word “held” is simply synonymous with the word “bound.”
One can hardly fail to be astonished at the ignorance, fatuity, cowardice, or corruption, that has ever induced the North to acknowledge, for an instant, any constitutional obligation to surrender fugitive slaves.
The Supreme Court of the United States, in the Prigg case, (the first case in which this clause of the constitution ever came under the adjudication of that court,) made no pretence that the language itself of the constitution afforded any justification for a claim to a fugitive slave. On the contrary, they made the audacious and atrocious avowal, that, for the sole purpose of making the clause apply to slaves, they would disregard—as they acknowledged themselves obliged to disregard—all the primary, established and imperative rules of legal interpretation. and be governed solely by the history of men’s intentions, outside of the constitution. Thus they say:
“Before, however, we proceed to the points more immediately before us, it may be well—in order to clear the case of difficulty—to say that, in the exposition of this part of the constitution, we shall limit ourselves to those considerations which appropriately and exclusively belong to it, without laying down any rules of interpretation of a more general nature. It will, indeed, probably, be found, when we look to the character of the constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied to it, which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. And perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed. * * * Historically, it is well known that the object of this clause was to secure to the citizens of the slaveholding states the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape from the state where they were held in servitude.”
—16 Peters, 610—11.
Thus it will be seen that, on the strength of history alone, they assume that “many of the provisions of the constitution were matters of compromise” (that is, in regard to slavery); but they admit that the words of those provisions cannot be made to express any such compromise, if they are interpreted according to any “uniform rule of interpretation,” or “any rules of interpretation of a more general nature” than the mere history of those particular clauses. Hence, “in order to clear the case of (that) difficulty,” they conclude that “perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.”
The words “consistent with their legitimate meaning” contain a deliberate falsehood, thrown in by the court from no other motive than the hope to hide, in some measure, the fraud they were perpetrating. If it had been “consistent with the legitimate meaning of the words” of the clause to apply them to slaves, there would have been no necessity for discarding, as they did, all the authoritative and inflexible rules of legal interpretation, and resorting to history to find their meaning. They discarded those rules, and resorted to history, to make the clause apply to slaves, for no other reason whatever than that such meaning was not “consistent with the legitimate meaning of the words.” It is perfectly apparent that the moment their eyes fell upon the “words” of the clause, they all saw that they contained no legal deseription of slaves.
Stripped, then, of the covering which that falsehood was intended to throw over their conduct, the plain English of the language of the court is this: that history tells us that certain clauses of the constitution were intended to recognize and support slavery; but, inasmuch as such is not the legal meaning of the words of those clauses, if interpreted by the established rules of interpretation, we will, “in order to clear the case of (that) difficulty,” just discard those rules, and pervert the words so as to make them accomplish whatever ends history tells us were intended to be accomplished by them.
It was only by such a naked and daring fraud as this that the court could make the constitution authorize the recovery of fugitive slaves.
And what were the rules of interpretation which they thus discarded, “in order to clear the case of difficulty,” and make the constitution subserve the purposes of slavery? One of them is this, laid down by the Supreme Court of the United States:
“The intention of the instrument must prevail; this intention must be collected from its words.”—12 Wheaton, 332.
Without an adherence to this rule, it is plain we could never know what was, and what was not, the constitution.
Another rule is that universal one, acknowledged by all courts to be imperative, that language must be construed strictly in favor of liberty and justice.
The Supreme Court of the United States have laid down this rule in these strong terms:
“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”—United States vs. Fisher, 2 Cranch, 390.
Story delivered this opinion of the court, (in the Prigg case,) discarding all other rules of interpretation, and resorting to history to make the clause apply to slaves. And yet no judge has ever scouted more contemptuously than Story the idea of going out of the words of a law, or the constitution, and being governed by what history may say were the intentions of the authors. He says:
“Such a doctrine would be novel and absurd. It would confuse and destroy all the tests of constitutional rights and authorities. Congress could never pass any law without an inquisition into the motives of every member; and even then they might be reëxaminable. Besides, what possible means can there be of making such investigations? The motives of many of the members may be, nay, must be, utterly unknown, and incapable of ascertainment by any judicial or other inquiry; they may be mixed up in various manners and degrees; they may be opposite to, or wholly independent of, each other. The constitution would thus depend upon processes utterly vague and incomprehensible; and the written intent of the legislature upon its words and acts, the lex scripta, would be contradicted or obliterated by conjecture, and parole declarations, and fleeting reveries, and heated imaginations. No government on earth could rest for a moment on such a foundation. It would be a constitution of sand, heaped up and dissolved by the flux and reflux of every tide of opinion. Every act of the legislature [and, for the same reason also, every clause of the constitution] must, therefore, be judged of from its objects and intent, as they are embodied in its provisions.”
—2 Story’s Comm., 534.
Also, he says:
“The constitution was adopted by the people of the United States; and it was submitted to the whole, upon a just survey of its provisions, as they stood in the text itself. * * Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favor. And there can be no certainty either that the different state conventions, in ratifying the constitution, gave the same uniform interpretation to its language, or that, even in a single state convention, the same reasoning prevailed with a majority, much less with the whole, of the supporters of it. * * It is not to be presumed that even in the convention which framed the constitution, from the causes above mentioned, and other causes, the clauses were always understood in the same sense, or had precisely the same extent of operation. Every member necessarily judged for himself; and the judgment of no one could, or ought to be, conclusive upon that of others. * * * Nothing but the text itself was adopted by the people. * * Is the sense of the constitution to be ascertained, not by its own text, but by the ‘probable meaning’ to be gathered by conjectures from scattered documents, from private papers, from the table-talk of some statesmen, or the jealous exaggerations of others? Is the constitution of the United States to be the only instrument which is not to be interpreted by what is written, but by probable guesses, aside from the text? What would be said of interpreting a statute of a state legislature by endeavoring to find out, from private sources, the objects and opinions of every member; how every one thought; what he wished; how he interpreted it? Suppose different persons had different opinions,—what is to be done? Suppose different persons are not agreed as to the ‘probable meaning’ of the framers, or of the people,—what interpretation is to be followed? These, and many questions of the same sort, might be asked. It is obvious that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text, but the words are to be bent and broken by the ‘probable meaning’ of persons whom they never knew, and whose opinions, and means of information, may be no better than their own? The people adopted the constitution according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men.”
—1 Story’s Comm. on Const., 287 to 392.
And Story has said much more of the same sort, as to the absurdity of relying upon “history” for the meaning of the constitution.
It is manifest that, if the meaning of the constitution is to be warped in the least, it may be warped to any extent, on the authority of history; and thus it would follow that the constitution would, in reality, be made by the historians, and not by the people. It would be impossible for the people to make a constitution which the historians might not change at pleasure, by simply asserting that the people intended thus or so.
But, in truth, Story and the court, in saying that history tells us that the clause of the constitution in question was intended to apply to fugitive slaves, are nearly as false to the history of the clause as they are to its law.
There is not, I presume, a word on record (for I have no recollection of having ever seen or heard of one) that was uttered, either in the national convention that framed the constitution, or in any northern state convention that ratified it, that shows that, at the time the constitution was adopted, any northern man had the least suspicion that the clause of the constitution in regard to “persons held to service or labor” was ever to be applied to slaves.
In the national convention, “Mr. Butler and Mr. Pinckney moved to require ‘fugitive slaves and servants to be delivered up like criminals.’ ” “Mr. Sherman saw no more propriety in the public seizing and surrendering a slave or servant than a horse.”—Madison papers, 1447—8.
In consequence of this objection, the provision was changed, and its language, as it now stands, shows that the claim to the surrender of slaves was abandoned, and only the one for servants retained.*
It does not appear that a word was ever uttered, in the National Convention, to show that any member of it imagined that the provision, as finally agreed upon, would apply to slaves.
But, after the national convention had adjourned, Mr. Madison and Mr. Randolph went home to Virginia, and Mr. Pinckney to South Carolina, and, in the state conventions of those states, set up the pretence that the clause was intended to apply to slaves. I think there is no evidence that any other southern member of the national convention followed their example. In North Carolina, Mr. Iredell (not a member of the national convention) said the provision was intended to refer to slaves; but that “the northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned.”
I think the declarations of these four men—Madison, Randolph, Pinckney, and Iredell—are all the “history” we have, that even southern men, at that time, understood the clause as applying to slaves.
In the northern conventions no word was ever uttered, so far as we have any evidence, that any man dreamed that this language would ever be understood as authorizing a claim for fugitive slaves. It is incredible that it could have passed the northern conventions without objection, (indeed, it could not have passed them at all,) if it had been understood as requiring them to surrender fugitive slaves; for, in several of them, it was with great difficulty that the adoption of the constitution was secured when no such objection was started.
The construction placed upon the provision at the present day is one of the many frauds which the slaveholders, aided by their corrupt northern accomplices, have succeeded in palming off upon the north. In fact, the south, in the convention, as it has ever done since, acted upon the principle of getting by fraud what it could not openly obtain. It was upon this principle that Mr. Madison acted when he said that they ought not to admit, in the constitution, the idea that there could be property in man. He would not admit that idea in the constitution itself; but he immediately went home, and virtually told the state convention that that was the meaning which he intended to have given to it in practice. He knew well that if that idea were admitted in the instrument itself, the north would never adopt it. He therefore conceived and adhered to the plan of having the instrument an honest and free one in its terms, to secure its adoption by the north, and of then trusting to the fraudulent interpretations that could be accomplished afterward, to make it serve the purposes of slavery.
Further proof of his fraudulent purpose, in this particular, is found in the fact that he wrote the forty-second number of the Federalist, in which he treats of “the powers which provide for the harmony and proper intercourse among the states.” But he makes no mention of the surrender of fugitives from “service or labor,” as one of the means of promoting that “harmony and proper intercourse.” He did not then dare say to the north that the south intended ever to apply that clause to slaves.
But it is said that the passage of the act of 1793 shows that the north understood the constitution as requiring the surrender of fugitive slaves. That act is supposed to have passed without opposition from the north; and the reason was that it contained no authority for, or allusion to, the surrender of fugitive slaves; but only to fugitives from justice, and “persons held to service or labor.” The south had not at that time become sufficiently audacious to make such a demand. And it was twenty-three years, so far as I have discovered, (and I have made reasonable search in the matter,) after the passage of that act, before a slave was given up, under it, in any free state, or the act was acknowledged, by the Supreme Court of any free state, to apply to slaves.
In 1795, two years after the passage of the act of Congress, and after the constitution had been in force six years, a man was tried in the Supreme Court of Pennsylvania, on an indictment, under a statute of the state, against seducing or carrying negroes or mulattoes out of the state, with the intention to sell them, or keep them, as slaves.
“Upon the evidence in support of the prosecution, it appeared that negro Toby had been brought upon a temporary visit to Philadelphia, as a servant in the family of General Sevier, of the State of Virginia; that, when General Sevier proposed returning to Virginia, the negro refused to accompany him;” but was afterwards forcibly carried out of the state. It appeared also, in evidence, that it was proposed by Richards, the defendant, that the negro be enticed into New Jersey, (a slave state,) and there seized and carried back to Virginia.
“The evidence on behalf of the defendant proved that Toby was a slave, belonging to the father of General Sevier, who had lent him to his son merely for the journey to Philadelphia.”
The defendant was found not guilty, agreeably to the charge of the Chief Justice; and what is material is, that the case was tried wholly under the laws of Pennsylvania, which permitted any traveller who came into Pennsylvania, upon a temporary excursion for business or amusement, to detain his slave for six months, and entitled him to the aid of the civil police to secure and carry him away.—Respublica vs. Richards, 2 Dallas, 224.
Not one word was said, by either court or counsel, of the provision of the United States constitution in regard to “persons held to service or labor,” or the act of 1793, as having any application to slaves, or as giving any authority for the recovery of fugitive slaves. Neither the constitution nor the act of Congress was mentioned in connection with the subject.
Is it not incredible that this should have been the case, if it had been understood, at that day, that either the constitution or the act of 1793 applied to slaves?
Would a man have used force in the case, and thus subjected himself to the risk of an indictment under the state laws? or would there have been any proposition to entice the slave into a slave state, for the purpose of seizing him, if it had been understood that the laws of the United States were open to him, and that every justice of the peace (as provided by the act of 1793) was authorized to deliver up the slave?
It cannot reasonably be argued that it was necessary to use force or fraud to take the slave back, for the reason that he had been brought, instead of having escaped, into Pennsylvania; for that distinction seems not to have been thought of until years after. The first mention I have found of it was in 1806.—Butler vs. Hopper, 1 Washington, C. C. R. 499.
In 1812 it was first acknowledged by the Supreme Court of New York that the act of 1793 applied to slaves, although no slave was given up at the time. But New York then had slaves of her own.—Glen vs. Hodges, 9 Johnson, 67.
In 1817 the Supreme Court of Pennsylvania first acknowledged that the constitution and the act of 1793 applied to slaves. But no slave was then given up.—Commonwealth vs. Holloway, 2 Sargent and Rawle, 305.
In 1823 the Supreme Court of Massachusetts first acknowledged that the constitutional provision in regard to “persons held to service or labor” applied to slaves.—Commonwealth vs. Griffith, 2 Pickering, 11.
Few, if any, slaves have ever been given up under the act of 1793, in the free states, until within the last twenty or thirty years. And the fact furnishes ground for a strong presumption that, during the first thirty years after the constitution went into operation, it was not generally understood, in the free states, that the constitution required the surrender of fugitive slaves.
But, it is said that the ordinance of 1787, passed contemporaneously with the formation of the constitution, requires the delivery of fugitive slaves, and that the constitution ought to be taken in the same sense. The answer to this allegation is, that the ordinance does not require the delivery of fugitive slaves, but only of persons “from whom service or labor is lawfully claimed.” This language, certainly, is no legal description of a slave.
But beyond, and additional to, all this evidence, that the constitution does not require the surrender of fugitive slaves, is the conclusive and insuperable fact, that there is not now, nor ever has been, any legal or constitutional slavery in this country, from its first settlement. All the slavery that has ever existed, in any of the colonies or states, has existed by mere toleration, in defiance of the fundamental constitutional law.
Even the statutes on the subject have either wholly failed to declare who might and who might not be made slaves, or have designated them in so loose and imperfect a manner, that it would probably be utterly impossible, at this day, to prove, under those statutes, the slavery of a single person now living. Mr. Mason admits as much, in the extracts already given from his speech.
But all the statutes on that subject, whatever the terms, have been unconstitutional, whether passed under the colonial charters, or since under the state governments. They were unconstitutional under the colonial charters, because those charters required the legislation of the colonies to “be conformable, as nearly as circumstances would allow, to the laws, customs and rights, of the realm of England.” Those charters were the fundamental constitutions of the colonies, and, of course, made slavery illegal in the colonies,—inasmuch as slavery was inconsistent with the “laws, customs, and rights, of the realm of England.*
There was, therefore, no legal slavery in this country so long as we were colonies,—that is, up to the time of the Revolution.
After the Declaration of Independence, new constitutions were established in eleven of the states. Two went on under their old charters. Of all the new constitutions that were in force at the adoption of the constitution of the United States in 1789, not one authorized, recognized or sanctioned, slavery.†All the recognitionsof slavery that are now to be found in any of the state constitutions, have been inserted since the adoption of the constitution of the United States.
There was, therefore, no legal or constitutional slavery, in any of the states, up to the time of the formation and adoption of the constitution of the United States, in 1787 and 1789.
There being no legal slavery in the country at the adoption of the constitution of the United States, all “the people of the United States” became legally parties to that instrument, and, of course, members of the United States government, by its adoption. The constitution itself declares, that “We, the people of the United States, * * do ordain and establish this constitution.” The term “people,” of necessity, includes the whole people; no exception being made, none can be presumed; for such a presumption would be a presumption against liberty.
After “the people” of the whole country had become parties to the constitution of the United States, their rights, as members of the United States government, were secured by it, and they could not afterwards be enslaved by the state governments; for the constitution of the United States is “the supreme law,” (operating “directly on the people, and for their benefit,” says the Supreme Court, 4 Wheaton, 404—5,) and necessarily secures to all the people individually all the rights it intended to secure to any; and these rights are such as are incompatible with their being enslaved by subordinate governments.
But it will be said that the constitution of the United States itself recognizes slavery, to wit, in the provision requiring “the whole number of free persons,” and “three-fifths of all other persons,” to be counted, in making up the basis of representation and taxation. But this interpretation of the word “free” is only another of the fraudulent interpretations which the slaveholders and their northern accomplices have succeeded in placing upon the constitution.
The legal and technical meaning of the word “free,” as used in England for centuries, has been to designate a native or naturalized member of the state, as distinguished from an alien, or foreigner not naturalized. Thus the term “free British subject” means, not a person who is not a slave, but a native born or naturalized subject, who is a member of the state, and entitled to all the rights of a member of the state, in contradistinction to aliens, and persons not thus entitled.
The word “free” was used in this sense in nearly or quite all the colonial charters, the fundamental constitutions of this country, up to the time of the revolution. In 1787 and 1789, when the United States constitution was adopted, the word “free” was used in this political sense in the constitutions of the three slaveholding states, Georgia, South Carolina, and North Carolina. It was also used in this sense in the articles of Confederation.
The word “free” was also used in this political sense in the ordinance of 1787, in four different instances, to wit, three times in the provision fixing the basis of representation, and once in the article of compact, which provides that when the states to be formed out of the territory should have sixty thousand free inhabitants they should be entitled to admission into the confederacy.
That the word “free” was here used in its political sense, and not as the correlative of slaves, is proved by the fact that the ordinance itself prohibited slavery in the territory. It would have been absurd to use the word “free” as the correlative of slaves, when slaves were to have no existence under the ordinance.
This political meaning which the word “free” had borne in the English law, and in all the constitutional law of this country, up to the adoption of the constitution of the United States, was the meaning which all legal rules of interpretation required that Congress and the courts should give to the word in that instrument.
But we are told again that the constitution recognizes the legality of the slave-trade, and, by consequence, the legality of slavery, in the clause respecting the “importation of persons.” But the word “importation,” when applied to “persons,” no more implies that the persons are slaves than does the word “transportation.” It was perfectly understood, in the convention that framed the constitution,—and the language was chosen with special care to that end,—that there was nothing in the language itself that legally recognized the slavery of the persons to be imported; although some of the members, (how many we do not know,) while choosing language with an avowed caution against “admitting, in the constitution, the idea that there could be property in man,” intended, if they could induce the people to adopt the constitution, and could then get the control of the government, to pervert this language into a license to the slave-trade.
This fraudulent perversion of the legal meaning of the language of the constitution is all the license the constitution ever gave to the slave-trade.
Chief Justice Marshall, in the case of the brig Wilson, (1 Brockenbrough, 433—5,) held that the words “import” and “imported,” in an act of Congress, applied to free persons as well as to slaves. If, then, the word “importation,” in the constitution, applies properly to free persons, it certainly cannot imply that any of the persons imported are slaves.
If the constitution, truly interpreted, contain no sanction of slavery, the slaves of this country are as much entitled to the writ of habeas corpus, at the hands of the United States government, as are the whites.
SUGGESTIONS TO ABOLITIONISTS.
Those who believe that slavery is unconstitutional, are the only persons who propose to abolish it. They are the only ones who claim to have the power to abolish it. Were the entire North to become abolitionists, they would still be unable to touch the chain of a single slave, so long as they should concede that slavery was constitutional. To say, as many abolitionists do, that they will do all they constitutionally can towards abolishing slavery, is virtually saying that they will do nothing, if they grant, at the same time, that the constitution supports slavery. To suppress the slave trade between the States, as some propose, is certainly violating the spirit, and probably the law, of the constitution, if slavery be constitutional. To talk of amending the constitution, by the action of three fourths of the States, so as to abolish slavery, is to put off the matter to some remote and unknown period. While abolitionists are amusing themselves with these idle schemes for abolishing slavery without the agency of any adequate means, slaves are doubling in numbers every twenty-five years, and the slave power is rapidly increasing in numbers, wealth, and territory. To concede that this power is entrenched behind the constitution, is, in the minds of practical men, to concede the futility of all efforts to destroy it. And its effect is to dissuade the great body of the North from joining in any efforts to that end. The mass of men will insist upon seeing that a thing can be done, before they will leave the care of their other interests to assist in doing it. Hence the slow progress of all political movements based on the admission that slavery is constitutional. What sense would there be in placing the political power of the country in the hands of men, who can show nothing that they can do with it towards accomplishing the end for which they ask it? Abolitionists, therefore, who ask political power, and yet concede slavery to be constitutional, stand in the attitude of men asking for power for their own gratification, and not for any great practical good that they can do with it.* Let them but show that they can abolish slavery, and they can then consistently ask that the government be intrusted to their hands.†
The North, with no very important exceptions, although not enthusiastic in the matter, are abolitionists at heart. It is a slander on human nature to assert that they are not. To suppose that a people, themselves the freest in the world, having no pecuniary interests that bind them to slavery, inheriting all the principles of English liberty, and living for the last seventy years under the incessant teachings of the truth that all men are born free and equal—to suppose that such a people, as a people, are not opposed to slavery, is equivalent to supposing that they are naturally incapable of such a sentiment as the love of liberty, or the hatred of oppression. If the supposition were correct, it would furnish an argument against all further effort of any kind; for the task of radically changing human nature, for the purpose of abolishing slavery, is one quite too chimerical for rational men to engage in.
If the North love slavery, why did they unite to abolish the slave trade? or to exclude slavery from the north-western States? And why do they not have slaves themselves?
The people of the North want simply to know if they can do anything for the abolition of slavery, without violating their constitutional faith. For this alternative they are not prepared, (as I admit they ought to be, if they had ever pledged themselves to the support of slavery;) but they are prepared for almost anything short of that. At any rate, they are prepared to stand by the constitution, if it supports liberty. If it he said that they are not, the speediest process by which to bring them to that state of preparation, is to prove to them that slavery is unconstitutional, and thus present to them the alternative of overthrowing the constitution for the support of slavery, or of standing by it in support of freedom.
In a speech at Charleston, on the 9th of March last, (1847,) Mr. Calhoun gave the following estimate of popular feeling at the North, on the subject of slavery:—
He said, “They, (the people of the North,) may, in reference to the subject under consideration, be divided into four classes. Of these, the abolitionists proper—the rabid fanatics, who regard slavery as a sin, and thus regarding it, deem it their highest duty to destroy it, even should it involve the destruction of the constitution and the Union—constitute one class. It is a small one, not probably exceeding five per cent. of the population of those States. They voted, if I recollect correctly, about fifteen thousand, or, at most, twenty thousand votes in the last test of their strength, in the State of New York, out of about four hundred thousand votes, which would give about five per cent. Their strength in that State, I would suppose, was fully equal to their average strength in the non-slaveholding States generally.
“Another class consists of the great body of the citizens of those States, constituting at least seven tenths of the whole, who, while they regard slavery as an evil, and as such, are disposed to aid in restricting and extirpating it, when it can be done consistently with the constitution, and without endangering the peace and prosperity of the country, do not regard it as a sin to be put down by all and every means.
“Of the two others, one is a small class, perhaps, not exceeding five per cent. of the whole, who view slavery as we do, more as an institution, and the only one, by which two races, so dissimilar as those inhabiting the slaveholding States, can live together in equal numbers, in peace and prosperity, and that its abolition would end in the expatriation of one or the other race. If they regard it as an evil, it is in the abstract, just as government and all its burdens, labor with all its toils, punishment with all its inflictions, and thousands of other things, are evils, when viewed in the abstract, but far otherwise when viewed in the concrete, because they prevent a greater amount of evil than what they inflict, as is the case with slavery as it exists with us.
“The remaining class is much larger, but still relatively a small one, less, perhaps, than twenty per cent. of the whole, but possessing great activity and political influence in proportion to its numbers. It consists of the political leaders of the respective parties, and their partisans and followers. They, for the most part, are perfectly indifferent about abolition, and are ready to take either side, for or against, according to the calculation of the political chances, their great and leading object being to carry the elections, especially the presidential, and thereby receive the honors and emolument, incident to power, both in the Federal and State governments.”
This estimate is probably sufficiently accurate for all practical purposes. Adopting it as correct, it shows that five per cent. only of the North sympathize with the South; that the other ninety-five per cent., (seventy-five per cent. acting from principle, and twenty per cent. for spoils,) “are disposed to aid in restricting and extirpating slavery, when it can be done consistently with the constitution, and without endangering the peace and prosperity of the country.”
The South has long been teaching the North, (and more of late than ever,) how much the maintenance of slavery has to do with promoting “the peace and prosperity of the country.” The lesson is learned. The only other point is the constitution. The North have but to have their eyes opened to the great constitutional fraud that has been perpetrated upon the country, to be found, ninety-five per cent. of them, on the side of liberty. When the North are united, they will control the national legislation, and the appointment of the national judiciary. Of course they will then abolish slavery. Does not this prove that the only labor the abolitionists really have to perform, is to spread the truth in regard to the constitution? And should they not adopt such measures as will compel public attention to, and a speedy decision of, that question?
How shall they do this? Probably, the most speedy and effectual mode of awaking the whole nation to the question is, by stirring up discussions of it in the national and State legislatures, by means of petitions.
The subject admits of petitions of a variety of kinds. To some of them the signatures of a very large portion of the people of the North might now be obtained: while others would be signed only by the more thoroughgoing abolitionists.
Who would not sign a petition praying Congress to inform the people whether slavery had any constitutional existence in the States at the time the United States constitution was adopted?
Who would not sign a petition praying Congress to inform the people what was the meaning of the word “free,” in the English law? In the colonial charters? In the State constitutions, existing in 1789, in the States of Georgia, South Carolina, North Carolina, Delaware, and in the Articles of Confederation? And whether Congress and the courts were not bound to give it the same meaning in the representative clause of the constitution of the United States?
Who would not sign a petition praying Congress to inform the people whether any person, born in the country since the adoption of the constitution of the United States, can, consistently with that constitution, be held as a slave?
Who would not sign a petition praying Congress to inform the people whether the Supreme Court of the United States have ever given any, and if any, what, valid reasons for holding slavery to be constitutional?
Other petitions would be signed by smaller numbers of the people, such as the following:—
1. Petitions praying Congress to establish courts throughout the slaveholding States, in such numbers, and aided by such agents and attorneys, as may be necessary to bring the privileges of the writ of habeas corpus within the reach of every slave.
2. Petitions for the suppression of the slave trade between the States.
3. Petitions for organizing, arming, and disciplining the slaves as militia.
4. Petitions for having the next census distinguish the respective numbers of citizens and unnaturalized persons, and for basing the next representation upon them, counting the citizens as units, and the unnaturalized persons as three fifths units.
5. Petitions for the abolition of indirect taxation, and the apportionment of direct taxation among the States, counting the citizens as units, and the unnaturalized persons as three fifths.
The general question of the unconstitutionality of slavery should also be pressed upon the consideration of the State legislatures, by means of petitions. The opinions of these legislatures are important for these reasons:
1. The State legislatures choose the U. S. senators, and thus have a voice in the national legislation, and in the appointment of the national judiciary.
2. The free States, so called, are not free. They are liable to the incursions of the slave-hunter. They should be made free.
3. Several of the nominally free States have, on their statute-books, what are called “Black Laws,” which are all unconstitutional.*
It is not very infrequent for legislative bodies to ask the opinions of their co-ordinate judiciaries on important questions of law. Let the State legislatures be petitioned to ask the opinions of the State judges, that we may have the opinions of the entire judiciary of the North, on this question of the constitutionality of slavery; each judge being requested to give his opinion separately, and independently of precedents.
If only a small number should at first give their opinions in favor of liberty, it would awaken universal interest in the question.
If any considerable number, influential for their talents and integrity, should give their opinions in favor of liberty, it would change the opinions of the North on this question, as it were, instantaneously.
If they should give their opinions in favor of slavery, and should give their reasons for their opinions, their reasons will be likely to pass for what they are worth. If sound, they will stand; if false, they will expose the weakness of their position, and will speedily be swept away.
If they should give their opinions in favor of slavery, and should give no reasons for their opinions, they will thereby disclose their own characters, and indicate the falsehood of their assumptions for slavery.
In order that these appeals to Congress, the State legislatures, and the courts, may be effectual, all representatives, senators, and judges should be furnished with all the evidence on which abolitionists rely for proving slavery unconstitutional.
Senators, representatives, and judges are but the servants of the people. They all swear to support the constitution of the United States. The people have a right to know how these servants understand that constitution; and to know specifically their reasons, if they have any, for officially conceding that it legalizes slavery. They are especially responsible for the freedom of their own States, and should be held to that responsibility. These agents, then, have no right to complain at having these questions addressed to them. Should they complain of it, or refuse to answer, they will thereby furnish evidence of the necessity there was for asking the questions.
Another reason why these public servants ought not to be embarrassed at having these questions addressed to them, is, that in making their answers, they will have the benefit of all the reasons ever given in support of the constitutionality of slavery, by the Supreme Court of the United States, if they can find them.
Some timid persons may imagine that if this question be pressed to a decision, and that decision should be against slavery, the result will be a dissolution of the Union. But this is an ignorant and ridiculous fear. The actual slaveowners are few in number, compared with the slaves and non-slaveholders of the South. The supposed guaranty of the constitution to slavery is the great secret of their influence at home, as well as at the North. It is that that secures their wealth and their political power. The simple agitation of the question of the unconstitutionality of slavery will strike a blow at their influence, wealth, and power, that will be felt throughout the South, and tend to separate the non-slaveholders from them. It is idle to suppose that the non-slaveholders of the South are going to sacrifice the Union for the sake of slavery. Many of them would hail as the highest boon a constitutional deliverance from slaveholding oppressions. And when the question shall be finally settled against the constitutionality of slavery, the slaveholders will find themselves deserted of all reliable support; the pecuniary value of their slaves will have vanished before the prospect of a compulsory emancipation; and this slave power, that has so long strode the country like a colossus, will sink into that contempt and insignificance, both at home and abroad, into which tyrants, so mean and inhuman, always do sink, when their power is broken. They will hardly find a driver on their plantations servile enough, or fool enough, to go with them for a dissolution of the Union.
[† ] The Supreme Court of the United States say, the “powers” of the general government “are to be exercised directly on the people, and for their benefit.”—4 Wheaton, 205.
[* ] The doctrine that the government has all power except what is prohibited to it, is of despotic origin. Despotic government is supposed to originate, and does in fact originate, with the despot, instead of the people; and he claims all power over them except what they have from time to time wrested from him. It is a consistent doctrine that such governments have all power except what is prohibited to them. But where the government originates with the people, precisely the opposite doctrine is true, viz., that the government has no power except what is granted to it.
[† ] If, however, they had not known that the existing slavery was unconstitutional, and had proceeded upon the mistaken belief that it was constitutional, and had intended to recognize it as being so, such intended recognition would have availed nothing; for it is an established principle, recognized by the Supreme Court of the United States, that “a legislative act, founded upon a mistaken opinion of what was law, does not change the actual state of the law, as to pre-existing cases.”—1 Cranch, 1; Peter’s Digest, 578.
[* ] Sec Part First, pages 90 to 94, sec. edition. Also the argument under the “Sixth Rule of Interpretation,” p. 182 to 189 of this part, and under the “Second Rule cited for Slavery,” p. 214 to 216.
[* ] It is not necessary, as some imagine, for Congress to enact a law making slavery illegal. Congress have no such power. Such a power would imply that slavery was now legal. Whereas it is now as much illegal as it is possible to be made by all the legislation in the world. Congress, assuming that slavery is illegal, are constitutionally bound to provide all necessary means for having that principle maintained in practice.
[† ]Part First, ch. 8, p. 101, 2d ed.
[* ] In a speech, in the Senate of the United States, upon the Fugitive Slave bill, so called, on the 19th day of August, 1850, (as reported in the Washington Union and National Intelligencer,) senator Mason, of Virginia, the chairman of the committee that reported the bill, and the principal champion of the bill in the Senate, in describing “the actual evils under which the slave States labor in reference to the reclamation of these fugitives,” said:
“Then, again, it is proposed [by one of the opponents of the bill], as a part of the proof to be adduced at the hearing, after the fugitive has been recaptured, that evidence shall be brought by the claimant to show that slavery is established in the state from which the fugitive has absconded. Now, this very thing, in a recent case in the city of New York, was required by one of the judges of that state, which case attracted the attention of the authorities of Maryland, and against which they protested, because of the indignities heaped upon their citizens, and the losses which they sustained in that city. In that case, the judge of the state court required proof that slavery was established in Maryland, and went so far as to say that the only mode of proving it was by reference to the statute-book. Such proof is required in the senator’s amendment; and, if he means by this that proof shall be brought that slavery is established by existing laws, it is impossible to comply with the requisition, for no such proof can be produced, I apprehend, in any of the slave states. I am not aware that there is a single state in which the institution is established by positive law. On a former occasion, and on a different topic, it was my duty to endeavor to show to the senate that no such law was necessary for its establishment; certainly none could be found, and none was required, in any of the states of the Union.”
I am confident that Mr Calhoun made the same admission within two or three years last past, but I have not the paper containing it at hand.
[* ]Servants were, at that time, a very numerous class in all the states; and there were many saws respecting them, all treating them as a distinct class from slaves.
[* ] Washburn, in his “Judicial History of Massachusetts,” (p. 202,) says:
“As early as 1770, and two years previous to the decision of Somersett’s case, so famous in England, the right of a master to hold a slave had been denied, by the Superior Court of Massachusetts, and upon the same grounds, substantially, as those upon which Lord Mansfield discharged Somersett, when his case came before him. The case here alluded to was James us. Lechmere, brought by the plaintiff, a negro, against his master, to recover his freedom.”
[† ] Perhaps it may be claimed by some that the constitution of South Carolina was an exception to this rule. By that constitution it was provided that the qualifications of members of the Senate and House of Representatives “shall be the same as mentioned in the election act.”
“The election act” was an act of the Provincial Assembly, passed in 1759, which provided that members of the Assembly “shall have in this province a settled plantation, or freehold estate, of at least five hundred acres of land, and twenty slaves.”
But this act was necessarily void, so far as the requirement in regard to slaves was concerned; because, slavery being repugnant to the laws of England, it could have no legal existence in the colony, which was restricted from making any laws, except such as were conformable, as nearly as circumstances would allow, to the laws, statutes, and rights, of the realm of England.
This part of the act, then, being void at the time it was passed, and up to the time of the adoption of the constitution of the state, the provision in that constitution could not legally be held to give force to this part of the act. Besides, there could be no slaves, legally speaking, in 1778, for the act to refer to.
[* ] No one, I trust, will suppose I am actually accusing abolitionists of seeking power for their own gratification. I am only showing their political position, so long as they concede that slavery is constitutional.
[† ] If abolitionists think that the constitution supports slavery, they ought not to ask for power under it, nor to vote for any one who will support it. Revolution should be their principle. And they should vote against all constitutional parties, block the wheels of government and thus compel revolution.
[* ] If slavery be unconstitutional, all the colored persons in the United States are citizens of the United States, and consequently citizens of the respective States. And when they go from one State into another, they are “entitled to all the privileges and immunities of citizens” in the latter State. And all statutes forbidding them to testify against white persons, or requlring them to give bail for good behavior, or not to become chargeable as paupers, are unconstitutional