Chapter VIII: Section 2: Congress shall have power to enforce this (1)

article by appropriate legislation.”

February 17th, Mr. Sumner, inferring from the report of
the Committee a disposition to follow the Ordinance for the
Northwest Territory, and also thinking it desirable to expel
from the Constitution clauses alleged to concern Slavery,
gave notice of the following substitute, the first clause of
which is modelled precisely on the famous prohibition in the
Ordinance.

“ARTICLE 13.

“SECTION 1. There shall be neither slavery nor involuntary
servitude anywhere in the United States, or within the
jurisdiction thereof, otherwise than in the punishment of
crimes whereof the party shall have been duly convicted;
and the Congress may make all laws which shall be necessary
and proper to enforce this prohibition.

“SECTION 2. In the third paragraph of the second section
of the first article, concerning the apportionment of
Representatives, the following words shall be struck out,
so as to be no longer a part of the Constitution, namely:
‘Which shall be determined by adding to the whole number of
free persons, including those bound to service for a term
of years, and excluding Indians not taxed, three fifths of
all other persons,’ except the words ‘excluding Indians
not taxed,’ which shall be allowed to remain, so that the
whole clause shall read: ‘Representatives and direct taxes
shall be apportioned among the several States which may be
included within this Union according to their respective
numbers, excluding Indians not taxed.’

“SECTION 3. The whole of the third paragraph of the
second section of the fourth article, in the words hereto
appended, shall be struck out, so as to be no longer a part
of the Constitution, namely: ‘No person held to service or
labor in one State, under the laws thereof, escaping into
another, shall, in consequence of any law or regulation
therein, be discharged from such service or labor, but
shall be delivered up on claim of the party to whom such
service or labor may be due.’”

March 28th, the Senate, as in Committee of the Whole,
proceeded to consider the joint resolution, the pending
question being the substitute of the Committee. Mr. Trumbull
opened the debate by an elaborate speech, in which he said: “If
we are to get rid of the institution of Slavery, we must have
some more efficient way of doing it than by the Proclamations
that have been issued or the Acts of Congress which have been
passed.… Sir, in my judgment, the only effectual way of ridding
the country of Slavery, and so that it cannot be resuscitated,
is by an Amendment of the Constitution, forever prohibiting it
within the jurisdiction of the United States. It is reasonable
to suppose, that, if this proposed Amendment passes Congress,
it will within a year receive the ratification of the requisite
number of States to make it a part of the Constitution. That
accomplished, and we are forever freed of this troublesome
question.… We take this question entirely away from the
politics of the country; we relieve Congress of sectional
strifes; and, what is better than all, we restore to a whole
race that freedom which is theirs by the gift of God, but which
we for generations have wickedly denied them.” Mr. Wilson,
of Massachusetts, made an effective speech, whose character
appears in its title, as published: “The Death of Slavery
is the Life of the Nation.” Then followed, on successive
days, speeches from Mr. Davis, of Kentucky, Mr. Saulsbury,
of Delaware, Mr. McDougall, of California, Mr. Hendricks,
of Indiana, and Mr. Powell, of Kentucky, all against the
Amendment. Mr. Davis declared that “the most operative single
cause of the pending war was the intermeddling of Massachusetts
with the institution of Slavery,” and it was an “objection of
overruling weight, that no revision of the Constitution, in any
form, ought to be undertaken under the auspices of the party in
power.” Mr. Saulsbury said: “Immediately after the Flood, the
Almighty condemned a whole race to servitude. He said, ‘Cursed
be Canaan!’” In behalf of the Amendment were able speeches
by Mr. Clark, of New Hampshire, Mr. Howe, of Wisconsin, Mr.
Reverdy Johnson, of Maryland, Mr. Harlan, of Iowa, Mr. Hale, of
New Hampshire, and Mr. Henderson, of Missouri.

April 8th, the last day of debate, Mr. Sumner made the speech
which follows this Introduction.

* * * * *

During the discussion there were several votes. Mr. Davis
moved as a substitute, “No negro, or person whose mother or
grandmother is or was a negro, shall be a citizen of the United
States, or be eligible to any civil or military office or to
any place of trust or profit under the United States.” This
was lost,--Yeas 5, Nays 32. Mr. Davis then proposed to add to
the first section of the proposed article: “But no slave shall
be entitled to his or her freedom under this Amendment, if
resident, at the time it takes effect, in any State the laws of
which forbid free negroes to reside therein, until removed from
such State by the Government of the United States.” This was
rejected without a division. Mr. Davis further proposed to add
at the end of the second section, that, “when this Amendment of
the Constitution shall have taken effect by freeing the slaves,
Congress shall provide for the distribution and settlement of
all the population of African descent in the United States
among the several States and Territories in proportion to the
white population of each State and Territory.” This also was
rejected without a division, as was another Amendment by him
concerning the election of President and Vice-President. Mr.
Powell moved to add to the first section: “No slave shall be
emancipated by this article, unless the owner thereof shall be
first paid the value of the slave or slaves so emancipated.”
This was rejected,--Yeas 2, Nays 34.

Mr. Sumner offered his substitute in these terms:--

“All persons are equal before the law, so that no person
can hold another as a slave; and the Congress may make all
laws necessary and proper to carry this article into effect
everywhere within the United States and the jurisdiction
thereof.”

Concerning the Amendment of the Committee he remarked:--

“It starts with the idea of reproducing the Jeffersonian
Ordinance. I doubt the expediency of reproducing that
Ordinance. It performed an excellent work in its day, but
there are words in it which are entirely inapplicable to
our time. They are the limitation, ‘otherwise than in the
punishment of crimes whereof the party shall have been duly
convicted.’ Now, unless I err, there is an implication from
those words that men may be enslaved as a punishment of
crimes whereof they shall have been duly convicted. There
was a reason for that at the time; for I understand that
it was the habit in certain parts of the country to doom
persons as slaves for life as a punishment for crime, and
it was not proposed to prohibit this habit. But Slavery
in our day is something distinct, perfectly well known,
requiring no words of distinction outside of itself. Why,
therefore, add the words, ‘nor involuntary servitude,
except as a punishment for crime whereof the party shall
have been duly convicted’? To my mind they are entirely
surplusage. They do no good there, but absolutely introduce
a doubt.

“In placing a new and important text in our Constitution
we cannot be too careful. We should consider well that
the language adopted in this Chamber to-day will in all
probability be adopted in the other House, and it must be
adopted, also, by three fourths of the Legislatures of
the States. Therefore we have every motive, the strongest
inducement in the world, to make that language as perfect
as possible. I do not hesitate to say, that I object to
the Jeffersonian Ordinance, even if presented here in its
original text. But now I am brought to the point that
the proposition of the Committee is not the Jeffersonian
Ordinance, except in its bad feature. In other respects, it
discards the language of the Jeffersonian Ordinance, and
also its collocation of words.”

Mr. Trumbull replied, that the Committee, upon discussion and
examination, had come to their conclusion. “I do not know,”
he said, “that I should have adopted these precise words, but
a majority of the Committee thought they were the best words;
they accomplish the object; and I cannot see why the Senator
from Massachusetts should be so pertinacious about particular
words.” He hoped Mr. Sumner would withdraw his proposition.

Mr. Howard, of Michigan, wished as much as Mr. Sumner
to use significant language that cannot be mistaken or
misunderstood; but he preferred to dismiss all reference to
French constitutions or French codes, and “go back to the
good old Anglo-Saxon language employed by our fathers in the
Ordinance of 1787, an expression which has been adjudicated
upon repeatedly, which is perfectly well understood both by the
public and by judicial tribunals.”

Mr. Sumner withdrew his proposition, which he called a
“suggestion” only, and also “a sincere effort to contribute
as much as he could to improve the proposition in form,” but
could not resist the appeal of his friend, the Chairman of the
Committee. He forbore to press any amendment.

Mr. Sumner often regretted that he had not insisted upon a vote
on striking out the clause giving implied sanction to slavery
or involuntary servitude as “a punishment for crime.”

April 8th, on the passage of the joint resolution, the vote
stood, Yeas 38, Nays 6, when the Vice-President announced that
the joint resolution, having received the concurrence of two
thirds of the Senators present, was passed.

May 31st, the joint resolution was taken up in the House of
Representatives. Mr. Holman, of Indiana, objected to its second
reading, and the Speaker stated the question, “Shall the joint
resolution be rejected?” On this question the vote stood, Yeas
55, Nays 76; and the joint resolution was not rejected. An
excited debate occupied several days.

June 15th, the vote was taken, and it stood, Yeas 95, Nays
66, not voting 21. So the joint resolution failed, two
thirds not voting in its favor. Mr. Ashley, of Ohio, a most
strenuous supporter of the Constitutional Amendment, changed
his vote from the affirmative to the negative, so as to move
a reconsideration, which motion he made in the evening, and
it was duly entered on the Journal, thus holding the joint
resolution in suspense. The session of Congress closed without
further action.

At the next session the President in his Annual Message
reminded Congress of the pending Constitutional Amendment, and
recommended its “reconsideration and passage,” adding, that by
the recent election the will of the majority was “most clearly
declared in favor of such Constitutional Amendment.” January
6, 1865, on motion of Mr. Ashley, the House of Representatives
took up his motion to reconsider the vote of rejection.
The debate, which was opened by him in an earnest speech,
proceeded, with some interruptions, until January 31st, when
he called the previous question on the motion. Mr. Stiles,
of Pennsylvania, moved to lay the motion to reconsider on
the table, which was lost,--Yeas 57, Nays 111. The previous
question was then ordered. On the motion to reconsider, the
vote stood, Yeas 112, Nays 57, not voting 13; but, a majority
being sufficient for this purpose, the motion to reconsider
was agreed to. The question then recurred on the passage of
the joint resolution, when, on motion of Mr. Ashley, the
previous question was ordered. Before this was done, he stated
that to hasten a vote he had declined speaking. Mr. Brown,
of Wisconsin, asked him to yield, so that he might “offer a
substitute for the joint resolution.” Mr. Ashley could not
yield; he had a substitute himself, which he should much prefer
to the original joint resolution, but he did not offer it. On
its final passage the vote stood, Yeas 119, Nays 56, not voting
8. So the two thirds required by the Constitution having voted
in its favor, the joint resolution was passed.

All possible preparation had been made for the vote, and the
attendance was unusually large, both of Representatives and
spectators. The people throughout the country awaited the
result with profound interest. The announcement by the Speaker
was received with an outburst of enthusiasm in the Chamber.
The Republican Representatives sprang to their feet and
applauded with cheers and clapping of hands. The spectators in
the crowded galleries followed the example, and for several
minutes the Chamber was a scene of joy and congratulation. Mr.
Ingersoll, of Illinois, then said, “In honor of this immortal
and sublime event, I move that the House do now adjourn”; and
the House adjourned.

The joint resolution submitting the Constitutional Amendment
bears date February 1, 1865. It now remained that the Amendment
should be ratified by the Legislatures of three fourths of
the several States, there being at the time thirty-six. A
certificate, announcing that this had been done, was issued
by the Secretary of State, December 18, 1865, and from this
date the Amendment became part of the Constitution. President
Lincoln, who had watched this event with absorbing interest,
did not live to witness the final result.

* * * * *

Mr. Sumner saw so clearly the delay incident to a
Constitutional Amendment, and even the uncertainty with regard
to its passage by Congress and adoption by the States, that,
while supporting it cordially, he did not relax meanwhile his
efforts for Congressional legislation against Slavery. Even if
Congress could not be induced, in the exercise of its powers,
to decree the death of the public enemy, he hoped that at least
it would not hesitate to use all other powers to limit and
weaken it, so that, should the Constitutional Amendment fail,
or be postponed, Slavery would be in a condition from which
it could not recover. His main postulate, that Slavery was
contrary to Nature, and an outlaw, was important in sustaining
action against it, whether by Constitutional Amendment or
Congressional legislation. In the course of debate on another
question, Mr. Sherman spoke incidentally of the Constitutional
Amendment as “the main proposition,” when Mr. Sumner at once
remarked:--

“The main proposition, Sir, is to strike Slavery wherever
you can hit it; and I tell the Senator he will not
accomplish his purpose, if he contents himself merely with
a Constitutional Amendment. I am for a Constitutional
Amendment; I have made the proposition in several forms:
but how long will it take to carry that Amendment
through both Houses of Congress, and then carry it to
its final consummation in the votes of the Legislatures
of three fourths of the several States, according to the
requirements of the Constitution? Are we to postpone action
on all these questions until that possibly distant day? No,
Sir!”[273]

The speech which follows was published originally under the
title, “Universal Emancipation without Compensation.” In the
edition of the Loyal Publication Society of New York the title
was “No Property in Man.” These two titles present fundamental
principles of special significance at that time. They were in
the nature of answer to the clamor for compensation.

SPEECH.

MR. PRESIDENT,--If an angel from the skies or a stranger from another planet were permitted to visit this earth and to examine its surface, who can doubt that his eyes would rest with astonishment upon the outstretched extent and exhaustless resources of this republic, young in years, but already rooted beyond any dynasty in history? In proportion as he considered and understood all that enters into and constitutes the national life, his astonishment would increase, for he would find a numerous people, powerful beyond precedent, without king or noble, but with the schoolmaster instead. And yet the astonishment he confessed, as all these things unrolled before him, would swell into marvel, as he learned that in this republic, arresting his admiration, where is neither king nor noble, but the schoolmaster instead, there are four million human beings in abject bondage, degraded to be chattels, under the pretence of property in man, driven by the lash like beasts, despoiled of all rights, even the right to knowledge and the sacred right of family, so that the relation of husband and wife is impossible and no parent can claim his own child, while all are condemned to brutish ignorance. Startled by what he beheld, the stranger would naturally inquire by what authority, under what sanction, and through what terms of law or constitution, this fearful inconsistency, so shocking to human nature itself, continues to be upheld. His growing wonder would know no bound, when he was pointed to the Constitution of the United States, as final guardian and conservator of this peculiar and many-headed wickedness.

“And is it true,” the stranger would exclaim, “that, in laying the foundations of this republic dedicated to human rights, all these wrongs were positively established?” He would ask to see that Constitution, and to know the fatal words by which the sacrifice was commanded. The trembling with which he began its perusal would be succeeded by joy as he finished; for he would find nothing in that golden text, not a single sentence, phrase, or word even, to serve as origin, authority, or apology for the outrage. And then his wonder, already knowing no bound, would break forth anew, as he exclaimed, “Shameful and irrational as is Slavery, it is not more shameful or irrational than the unsupported interpretation which makes your Constitution final guardian and conservator of this terrible and unpardonable apostasy.”

Such a stranger, coming from afar, with eyes that no local bias had distorted, and with understanding no local custom had disturbed, would naturally see the Constitution in its precise text, and would interpret it in its true sense, without prepossession or prejudice. Of course he would know, what all jurisprudence teaches and all reason confirms, that human rights cannot be taken away by any indirection, or by any vain imagining of something intended, but not said, and, as a natural consequence, that Slavery exists, if exist it can at all, only by virtue of _positive text_, and that what is true of Slavery is true also of all its incidents; and the enlightened stranger would insist, that, in every interpretation of the Constitution, that cardinal principle must never for a moment be out of mind, but must be kept ever forward as guide and master, that _Slavery cannot stand on inference_, nor can any support of Slavery stand on inference. Thus informed, and in the light of pervasive principle,--

“How far that little candle throws his beams!”--

he would peruse the Constitution from beginning to end, from its opening Preamble to its final Amendment, and then the joyful opinion would be given.

There are three things he must observe: first and foremost, that the dismal words “Slave” and “Slavery” do not appear in the Constitution; so that, if the unnatural pretension of property in man lurk anywhere in that text, it is under a feigned name, or an _alias_, which is cause of suspicion, while an imperative rule renders its recognition impossible. Next, he would consider the Preamble, which is the key to open the whole succeeding instrument; but here no single word is found which does not open the Constitution to Freedom and close it to Slavery. The object of the Constitution is announced to be “in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of _liberty_ to ourselves and our posterity”; all of which, in every particular, is absolutely inconsistent with Slavery. And, thirdly, he would observe those time-honored, most efficacious, chain-breaking words in the Amendments: “_No person shall be deprived of_ life, _liberty_, or property, _without due process of law_.” Scorning all false interpretations and glosses fastened upon the Constitution in support of Slavery, and with these three things before him, he would naturally declare that there was nothing in the original text on which this appalling wrong could be founded anywhere within the sphere of its operation. With wonder he would ask again by what strange delusion or hallucination the reason had been so far overcome as to recognize Slavery in the Constitution, when plainly it is not there, and cannot be there. The answer is humiliating, but easy.

People find in texts of Scripture the support of their own religious opinions or prejudices; and, in the same way, they find in texts of the Constitution the support of their political opinions or prejudices. And this may not be in either case because Scripture or Constitution, when truly interpreted, supports such opinions or prejudices, but because people are apt to find in texts simply a reflection of themselves. Most clearly and indubitably, whoever finds support of Slavery in the National Constitution has first found such support in himself: not that he will hesitate, perhaps, to condemn Slavery in words of approved gentleness, but because, from unhappy education, or more unhappy insensibility to the wrong, he has already conceded to it a certain traditional foothold of immunity, which he straightway transfers from himself to the Constitution. In dealing with this subject, it is not the Constitution, so much as human nature itself, which is at fault. Let the people change, and the Constitution will change also; for the Constitution is but the shadow, while the people are the substance.

Thank God, under influence of the struggle for national life, and in obedience to its incessant exigencies, the people have changed, and in nothing so much as on Slavery. Old opinions and prejudices have dissolved, and that traditional foothold Slavery once possessed is gradually weakening, until now it scarcely exists. Naturally this change must sooner or later show itself in the interpretation of the Constitution. But it is already visible even there, in the concession of powers over Slavery formerly denied. The time, then, has come when the Constitution, so long interpreted for Slavery, may be interpreted for Freedom. This is one stage of triumph. Universal emancipation, which is at hand, can be won only by complete emancipation of the Constitution itself, which has been so long degraded to wear chains that its real character is scarcely known.

Sometimes the concession is made on the ground of _military necessity_. The capacious war powers of the Constitution are invoked, and it is said that in their legitimate exercise Slavery may be destroyed. There is much in this concession,--more even than is imagined by many from whom it proceeds. It is war, say they, which puts these powers in motion; but they forget, that, wherever Slavery exists, there is perpetual war,--that Slavery itself is a _state of war_ between two races, where one is for the moment victor,--pictured accurately by Jefferson as “permitting one half the citizens to trample on the rights of the other, transforming those into despots and these into enemies.”[274] Therefore, wherever Slavery exists, even in seeming peace, the war powers may be invoked to terminate a condition which is internecine, and to overthrow pretensions hostile to every attribute of the Almighty.

It is not on military necessity alone that the concession is made. Many, as they read the Constitution now, see its powers over Slavery more clearly than before. The old superstition is abandoned; and they join with Patrick Henry, when, in the Virginia Convention, he declared the power of manumission accorded to Congress. He did not hesitate to argue against the adoption of the Constitution, because it accorded this power. And shall we be less perspicacious for Freedom than this Virginia statesman for Slavery? Discerning the power, he confessed his dismay: let us confess our joy.

We have already seen that Slavery finds no support in the Constitution. Glance now at positive provisions by which it is brought completely under control of Congress.

* * * * *

1. First among the powers of Congress, and associated with the power to lay and collect taxes, is that to “provide for the common defence and general welfare.” It is questioned whether this is a substantive power, or simply incident to that with which it is associated. But it is difficult, if not absurd, to insist that Congress has not this substantive power. Shall it not provide for the common defence? Shall it not regard the general welfare? If powerless to do these things in a great crisis, it had better abdicate. In the Virginia Convention, Mr. George Mason, a most decided opponent of the Constitution, said: “That Congress should have power to provide for the general welfare of the Union _I grant_.”[275] The language of Patrick Henry, to which allusion has just been made, was more explicit. He foresaw that this power would be directed against Slavery, and did not hesitate to declare:--

“Slavery is detested. We feel its fatal effects. We deplore it
with all the pity of humanity. Let all these considerations,
at some future period, press with full force on the minds of
Congress; let that urbanity which, I trust, will distinguish
America, and the necessity of national defence,--let all these
things operate on their minds; they will search that paper [the
Constitution] and see if they have power of manumission. And
have they not, Sir? Have they not power _to provide for the
general defence and welfare_? May they not think that these
call for the abolition of slavery? May they not pronounce all
slaves free? And will they not be warranted by that power? This
is no ambiguous implication or logical deduction. _The paper
speaks to the point. They have the power in clear, unequivocal
terms, and will dearly and certainly exercise it._”[276]

Language could not be more positive. To all who ask for the power of Congress over Slavery, here is a sufficient answer; and remember that this is not my speech, but the speech of Patrick Henry, who says that the Constitution “speaks to the point.”

* * * * *

2. Next comes the fountain, “Congress shall have power to declare war, to raise and support armies, to provide and maintain a navy.” A power like this is from its nature unlimited. In raising and supporting an army, in providing and maintaining a navy, Congress is not restricted to any particular class or color. It may call upon all, and authorize that _contract_ which the Government makes with an enlisted soldier. But such contract would be in itself an act of manumission; for a slave cannot make a contract. And if the contract be followed by actual service, who can deny its completest efficacy in enfranchising the soldier-slave and his whole family? Shakespeare, immortal teacher, gives expression to an instinctive sentiment, when he makes Henry the Fifth, on the eve of the victory at Agincourt, encourage his men by promising,--

“For he to-day that sheds his blood with me
Shall be my brother; be he ne’er so vile,
This day shall gentle his condition.”

* * * * *

3. There is still another clause: “The United States shall guaranty to every State in this Union _a republican form of government_.” Here again is a plain duty. But the question recurs, What is a republican form of government? John Adams, in the correspondence of his old age, says:--

“The customary meanings of the words _republic_ and
_commonwealth_ have been infinite. They have been applied to
every government under heaven,--that of Turkey and that of
Spain, as well as that of Athens and of Rome, of Geneva and San
Marino.”[277]

But the guaranty of a republican form of government must have a meaning congenial with the purposes of the Constitution. If a government like that of Turkey, or even that of Venice, could come within the scope of this guaranty, it would be of little value; it would be words, and nothing more. Evidently, it must be construed so as to uphold the Constitution, according to all the promises of its Preamble; and Mr. Madison has left a record, first published to the Senate by the distinguished Senator from Vermont [Mr. COLLAMER], of the Committee on the Library, showing that it was originally suggested in part by the fear of Slavery,[278] so that in construing it we must not forget the disturbing influence. The Preamble and the record are important, disclosing the real intention. But no American need be at loss to designate some of the distinctive elements of a republic, according to the idea of American institutions. These are found, first, in the Declaration of Independence, by which it is solemnly announced “that all men are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.” And they are found, secondly, in that other guaranty and prohibition of the Constitution, in harmony with the Declaration: “_No person_ shall be deprived of life, _liberty_, or property, _without due process of law_.” Such are essential elements of “a republican form of government,” which cannot be disowned without disowning the very muniments of our liberties; and these the United States are bound to guaranty. But all these, when set in motion, make Slavery impossible. It is idle to say that this result was not anticipated. It would be, then, only another illustration that our fathers “builded better than they knew.”

* * * * *

4. Independent of the guaranty, there is the other clause just quoted, in itself a source of power: “_No person_ shall be deprived of life, _liberty_, or property, _without due process of law_.” This was part of the Constitutional Amendments proposed by the First Congress, under the popular demand for a Bill of Rights. Though brief, it is a whole Bill of Rights. Liberty can be lost only by “due process of law,”--words borrowed from the ancient liberty-loving Common Law, illustrated by our master in law, Lord Coke, but best explained by the late Mr. Justice Bronson, of New York, in a judicial opinion:--

“The meaning of the section, then, seems to be, that _no member
of the State shall be disfranchised, or deprived of any of his
rights or privileges_, unless the matter shall be adjudged
against him upon trial had according to the course of the
Common Law.… The words ‘due process of law,’ in this place,
cannot mean less than a prosecution or suit instituted and
conducted according to the prescribed forms and solemnities for
ascertaining guilt or determining the title to property.”[279]

Such is the protection thrown by the Constitution over every “person,” without distinction of race or color, class or condition. There can be no doubt about the universality of the protection. All, without exception, come within its scope. The natural meaning is plain; but there is an incident of history which makes it plainer still, excluding all possibility of misconception. A clause of this character was originally recommended as an Amendment by two Slave States, Virginia and North Carolina, and by a slave-trading State, Rhode Island; but it was restricted by them to _freemen_, thus: “No _freeman_ ought to be deprived of his life, _liberty_, or property, but by _the law of the land_.”[280] When the recommendation came before Congress, the word “person” was substituted for “freeman,” and the more searching phrase “due process of law” was substituted for “the law of the land.” In making this change, rejecting the recommendation of slave-owning and slave-trading States, the authors of this Amendment revealed their purpose, that _no person_ wearing the human form should be deprived of _liberty_ without due process of law; and the proposition was adopted by the votes of Congress, and then of the States, as part of the Constitution. Clearly, on its face, it is an express guaranty of personal liberty, and an express prohibition of its invasion anywhere.

In the face of this guaranty and prohibition,--for it is both,--how can any “person” be held as slave? Sometimes it is argued that this provision must be restricted to places within the exclusive jurisdiction of the National Government. Such formerly was my own impression, often avowed in this Chamber; but I never doubted its complete efficacy to render Slavery unconstitutional in all such places, so that “no person” could be held as a slave at the national capital or in any national territory. Constitutionally, Slavery has always been an outlaw, wherever that provision of the Constitution was applicable. Nobody doubted that it was binding on the national courts; and yet it was left unexecuted, a dead letter, killed by the predominant influence of Slavery, until at last Congress was obliged by legislative act to do what the courts failed to do, and to terminate Slavery in the national capital and national territories.

In this transcendent guaranty and prohibition there are no words of exclusive jurisdiction. All is broad and general as the Constitution itself; and since this provision is in support of human rights, it cannot be restricted by any interpretation. There is no limitation in it, and nobody can supply any such limitation, without encountering the venerable maxim of law, _Impius et crudelis qui Libertati non favet_,--“Impious and cruel is he who does not favor Liberty.” Long enough have courts and Congress merited this condemnation. The time has come when they should merit it no longer. The Constitution should become a living letter under the predominant influence of Freedom. This conviction has brought petitioners to Congress, during the present session, asking that the Constitution shall be simply executed against Slavery, and not altered. Ah, Sir, it would be a glad sight to see that Constitution, which we have all sworn to support, interpreted generously, nobly, gloriously for Freedom, so that everywhere within its influence the chains should drop from the slave! If it be said that this was not anticipated at its adoption, I remind you of Patrick Henry, when, at the time, he said, “The paper speaks to the point.” No doubt, it does speak to the point, especially with the Amendments immediately thereafter adopted. Cicero preferred to err with Plato rather than to think right with other men. And pardon me, if, when my country is in peril from Slavery, and human rights are to be rescued, I prefer to err with Patrick Henry, in assuming power for Freedom, rather than to think right with Senators who hesitate in such a cause.

* * * * *

Mr. President, thus stands the case. There is nothing in the Constitution on which Slavery can rest, or find any the least support. Even on the face of that instrument it is an _outlaw_; but if we look further into its provisions, we find at least four distinct sources of power, which, if executed, must render Slavery impossible, while the Preamble makes them all vital for Freedom: first, the power to provide for the common defence and general welfare; secondly, the power to raise armies and maintain navies; thirdly, the power to guaranty a republican form of government; and, fourthly, the power to secure _Liberty_ against all restraint without due process of law. But all these provisions are something more than powers; _they are duties also_. And yet we are constantly and painfully reminded that pending measures against Slavery are unconstitutional. Sir, this is an immense mistake. _Nothing against Slavery can be unconstitutional._ It is hesitation that is unconstitutional.

And yet Slavery still exists, in defiance of all these requirements; nay, more, in defiance of reason and justice, which can never be disobeyed with impunity, it exists, the perpetual spoiler of human rights and disturber of the public peace, degrading master as well as slave, corrupting society, weakening government, impoverishing the very soil itself, and impairing the natural resources of the country. Such an outrage, so offensive in every respect, not only to the Constitution, but also to the whole system of order by which the universe is governed, can be nothing but _a national nuisance_, which, for the general welfare, and in the name of justice, ought to be abated. But at this moment, when it menaces the national life, it is not enough to treat Slavery merely as a nuisance, for it is much more. It is a public enemy and traitor, wherever it shows itself, to be subdued, in the discharge of solemn guaranties of Government, and in the exercise of unquestionable and indefeasible rights of self-defence. All now admit that in the Rebel States it is _a public enemy and traitor_, so that the Rebellion is seen in Slavery, and Slavery is seen in the Rebellion. But Slavery throughout the country, everywhere within the national limits, is a living Unit, one and indivisible,--and thus even outside the Rebel States it is the same public enemy and traitor, lending succor to the Rebellion, and holding out “blue lights” to encourage and direct its operations. But whether national nuisance or public enemy and traitor, it is obnoxious to the same judgment, and must be abolished.

If, in abolishing Slavery, injury were done to the just interests of any human being, or to rights of any kind, there might be something to “give us pause,” even against these irresistible requirements. But nothing of the kind can ensue. No just interests and no rights can suffer. It is the rare felicity of such an act, as well outside as inside the Rebel States, that, while striking a blow at the Rebellion, and assuring future tranquillity, so that the Republic shall be no longer a house divided against itself, it will add at once to the value of the whole fee simple wherever Slavery exists, will secure individual rights, and will advance civilization itself.

There is another motive at this time. Embattled armies stand face to face, one side fighting for Slavery. The gauntlet that has been flung down we have taken up in part only. Abolishing Slavery entirely, we take up the gauntlet entirely. Then can we look with confidence to Almighty God for His blessing upon our arms. “Till America comes into this measure,” said John Jay during the Revolution, “her prayers to Heaven for Liberty will be impious.”[281] So long as we sustain Slavery, so long as we hesitate to strike at Slavery, the heavy battalions of our armies will fail. Sir Giles Overreach, attempting to draw his sword, found it “glued to the scabbard with wronged orphans’ tears.” God forbid that our soldiers shall find their swords “glued” with the tears of the slave!

One question, and only one, rises in our path,--and this simply because the national representatives have been so long drugged and drenched with Slavery, which they have taken in all forms, whether of dose or douche, that, like a long-suffering patient, they are still sunk under its influence. I refer, of course, to the talk of compensation, under the shameful assumption that there can be property in man. Sir, there was a moment when I was willing to pay for Emancipation largely, or at least to any reasonable amount; but it was _as ransom_, and never as compensation. Thank God, that time has passed, never to return,--and simply because money is no longer needed for the purpose. Our fathers, under Washington, never paid the Algerines for our enslaved fellow-citizens, except as ransom; and they ceased all such tribute, when emancipation could be had without it. Such must be our rule. Any other would impoverish the Treasury for nothing. The time has come for the old tocsin to sound, “Millions for defence, not a cent for tribute!” Ay, Sir; millions of dollars--with millions of strong arms also--for defence against Slave-Masters; but not a cent for tribute to Slave-Masters.

If money is paid as compensation, clearly it cannot be awarded to the master, who for generations robbed the slave of his toil and all its fruits, so that, in justice, he may be treated as trustee of accumulated earnings with interest never paid over. Any money as compensation must belong, every dollar, to the slave. If the case were audited in Heaven’s chancery, there must be another allowance for prolonged denial of inestimable rights. Loss of wages may be estimated; but where is the tariff or price-current by which to determine those greater losses which have been the lot of every slave? Mortal arithmetic is impotent to assess the fearful sum-total. In presence of this infinite responsibility, the whole question must be referred to that other tribunal where master and slave are equal, while Infinite Wisdom tempers justice with mercy. There is a Persian tradition of Mahomet once saying that the greatest mortification at the Day of Judgment will be when the pious slave is carried to Paradise and the wicked master condemned to Hell.[282] It is only with finite powers that we on earth can imitate Divine Justice.

The theory of compensation is founded on the intolerable assumption of property in man, an idea which often intrudes into these debates, sometimes from open vindicators, and sometimes from others, who, while yielding, yet reluctantly yield, and thus their conduct is “sicklied o’er” with Slavery. Sir, parliamentary law must be observed; but, if in a parliamentary assembly indignant hisses are ever justifiable, they ought to break forth at every mention of this thing, whatever form it takes,--whether of arrogant claim, or mildest suggestion, or equivocal hint. Impious toward God, and infidel toward man, it is disowned by conscience and reason alike; nor is there any softness of argument or of phrase by which its essential wickedness can be disguised. “The fool hath said in his heart there is no God”; but it is kindred folly to say there is no Man. The first is Atheism, and the second is like unto the first. If in this world a man owns anything, it is himself. This is his great patrimony, alike from his earthly father and his Father in Heaven. It is indefeasible and perpetual,--not to be sold, not to be bought. Always owning himself, he cannot be owned by another.[283]

No man can make black white or wrong right; nor can any Congress or any multitude overcome the everlasting law of justice.

According to a well-known and capital principle of jurisprudence, stolen property cannot be sold, and the attempt to sell it, knowing the primary abstraction, is a crime. The form of sale is impotent, and the title does not pass. Wherever he finds his property, the original owner may resume it as his own. The pawnbroker who has received it in pledge must release his hold; the purchaser who has paid the price must give it up. But can a stolen man be sold? Is there any form of sale which is not impotent to complete this great transfer, so as to give it the semblance of validity against the original owner? Can the title pass? Infinitely absurd and unnatural is the pretext that a man may reclaim his stolen coat wherever he finds it, but cannot reclaim himself! Is the coat more than the man? Slavery asserts that it is; and the whole country says the same, when it sanctions the return of a fugitive slave. But this pretension is only a further outgrowth of that appalling tyranny which begins by denying the right of a man to himself.

The Christian Church, by beautiful, glorious example, testifies from earliest days against this pretension. Hermes, Prefect of Rome, converted to Christ, comes to church on Easter with twelve hundred and fifty slaves, whom after baptism he sets free. Chromatius, another Prefect of Rome, under Diocletian, also a convert, gives liberty after baptism to fourteen hundred, while he proclaims, “They who begin to be children of God must not be slaves of men.” St. Germain, the admirable Bishop of Paris, on receiving alms, cries out, “Thanks be to God, we can now ransom a slave!” This list might be extended. Better even than such personal testimony is the same sentiment manifest in social institutions. St. Theodore, illustrious in the Eastern Church, imposed this rule upon its monasteries: “You must never employ slaves, neither in personal service, nor in affairs of the convent, nor in culture of the earth; _the slave is a man created in the image of God_.” The Church of the West was not less earnest. St. Benedict of Aniane, the second of the name in canonization, would not allow convents to be served by a slave. In the bosom of these retreats, as also in the priesthood, the former slave mingled with the former lord, nor was there any obstacle between him and the bishop’s crosier. Onesimus, once the slave of Philemon, and hailed as brother beloved by Paul, is said to have become bishop of Ephesus.[284]

In the testimony of the Christian Church there is one character of precious example: I refer to Pope Gregory, justly meriting by his life the title of Great, which has been preserved by history. Through him England first tasted the blessings of Christianity. Fair-haired Saxons from the distant island, standing for sale in the market of Rome, enlisted his sympathy. When told that they were Angles, he exclaimed, “Not Angles, but Angels,”--“_Non Angli, sed Angeli_”--and he insisted on their ransom and instruction to become the apostles of their countrymen. Under his auspices St. Augustin commenced the work, so that the conversion of England may be traced to the sympathies aroused by English slaves on the banks of the Tiber. A letter from St. Gregory shows the spirit in which he acted. Giving freedom to two bondmen, he wrote these commanding words: “Since our Redeemer, Maker of the whole creation, being hereto propitiated, has been pleased to assume human flesh, that, by the grace of his divinity, the chain of slavery wherewith we were held captive being broken, he might restore us to pristine liberty, it is well that men whom Nature from the beginning has brought forth free and the law of nations has subjected to the yoke of servitude, should by benefit of manumission be restored to the liberty wherein they were born.”[285] And do not these words speak to us now?

Foremost of all in history who have vindicated human liberty, and associated their names with it forevermore, stands John Milton, Secretary of Oliver Cromwell, and author of “Paradise Lost.” Cradled under a lawless royalty, he helped to found and support the English Commonwealth, while in all that he wrote he pleaded for human rights,--now in defence of the English people, who had beheaded their king, and now in immortal poems which show how wisely and well he loved the cause he had made his own. Nowhere has the assumption of property in man been encountered more completely than in the conversation between the Archangel and Adam, after the former had pictured a hunter whose game was “men, not beasts”:--

“O execrable son, so to aspire
Above his brethren, to himself assuming
Authority usurped, from God not given!
He gave us only over beast, fish, fowl
Dominion absolute; that right we hold
By His donation; but man over men
He made not lord, such title to Himself
Reserving, human left from human free.”[286]

Every assertor of this property puts himself in the very place of the hunter of “men, not beasts,” described as “execrable son, so to aspire.” The language is not too strong. “Execrable” is the assumption,--“execrable” wherever made: “execrable” on the plantation, “execrable” in this Chamber, “execrable” in every form it takes, “execrable” in all its consequences, especially “execrable” as an apology for hesitation against Slavery. The assumption, wherever it shows itself, must be beaten down under our feet, like Satan himself, in whom it has its origin.

Again, we are brought by learned Senators to the Constitution, which requires that there shall be “just compensation,” where “private property” is taken for public use. But, plainly, here the requirement is absolutely inapplicable, for there is no “private property” to take. Slavery is but a bundle of barbarous pretensions, from which certain persons are to be released. At what price shall the bundle be estimated? How much shall be paid for the controlling pretension of property in man? How much allowed for that other pretension to shut the gates of knowledge, and keep the victim from the Book of Life? How much given for ransom from the pretension to rob a human being of his toil and all its fruits? And, Sir, what “just compensation” shall be voted for renouncing that Heaven-defying pretension, too disgusting to picture, which, trampling on the most sacred relations, makes wife and child the wretched prey of lust and avarice? Let these pretensions be renounced, and Slavery ceases to exist; but there can be no “just compensation” for any such renunciation. Heart, reason, religion, the Constitution itself, rise in judgment against it. As well vote “just compensation” to the hardened offender who renounces disobedience to the Ten Commandments, and promises that he will cease to steal, cease to commit adultery, and cease to covet his neighbor’s wife! Ay, Sir, there is nothing in the Constitution to sanction any such outrage. Such an appropriation would be unconstitutional.

Mr. Madison said in the Convention that it was “wrong to admit in the Constitution the idea that there could be property in men.”[287] Of course it was wrong. It was criminal and unpardonable. Thank God, it was not done. But Senators admit this “idea” daily. They take it from themselves, and then introduce it where Mr. Madison said it was “wrong.” But if “wrong” at the adoption of the Constitution, how much worse now! There is no instinct of patriotism, as there is no conclusion of reason, which must not be against the abomination; and yet, Sir, it is allowed to enter into these debates. Sometimes it stalks, and sometimes it skulks; but whether stalking or skulking, it must be encountered with the same indignant rebuke, until it ventures no longer to show its head.

Putting aside, then, all objection, whether from open opposition or lukewarm support, the great question recurs, that question which dominates this debate, How shall Slavery be overthrown? The answer is threefold: first, by the courts, declaring and applying the true principles of the Constitution; secondly, by Congress, in the exercise of the powers belonging to it; and, thirdly, by the people, through an Amendment of the Constitution. Court, Congress, people, all may be invoked; and the occasion justifies the appeal.

* * * * *

1. Let the appeal be made to the courts. But, alas! one of the saddest chapters in our history is the conduct of judges, lending themselves to the support of Slavery. Injunctions of the Constitution, guaranties of personal liberty, and prohibitions against its invasion have all been forgotten. Courts, which should be asylums of Liberty, have been changed into strongholds of Slavery; and the Supreme Court of the United States, by final decision as shocking to the Constitution as to the public conscience, proclaimed itself tutelary stronghold of all. It was part of the national calamity, that, under the influence of Slavery, Justice, like Astræa of old, fled. But now, at last, in a regenerated Republic, with Slavery waning, and the people rising in judgment against it, let us hope that the judgments of courts may be reconsidered, and the powers of the Constitution in behalf of Liberty fully exercised, so that human bondage shall no longer find an unnatural support from the lips of judges,--

“and ancient fraud shall fail,
Returning Justice lift aloft her scale.”

Sir, no court can afford to do an act of wrong. Its business is justice; and when, under any apology, it ceases to do justice, it loses those titles to reverence otherwise so willingly bestowed. There are instances of great magistrates openly declaring disobedience to laws “against common right and reason,” and their names are mentioned with gratitude in the history of jurisprudence. There are other instances of men holding the balance and the sword, whose names are gathered into a volume as “atrocious judges.” If our judges, cruelly interpreting the Constitution in favor of Slavery, do not come into the latter class, they can claim no place among those others who have stood for justice, like the rock on which the sea breaks in idle spray. Vainly do you attempt to frame injustice into a law, or to sanctify it by any judgment of court. From Cicero we learn, that, “if commands of the people, if decrees of princes, if _opinions of judges_ were sufficient to constitute right, then were it right to commit highway robbery, right to commit adultery, right to set up forged wills.”[288] And Augustine tells us, with saintly authority, that what is unjust cannot be law.[289] Every law and every judgment of court, to be binding, must have at its back the everlasting, irrepealable law of God. Doubtless the model decision of the American bench, destined to be quoted hereafter with most honor, because the boldest in its conformity with great principles of humanity and social order, was that of the Vermont judge who refused to surrender a fugitive slave _until his pretended master could show a title-deed from the Almighty_.

But courts have no longer occasion for such boldness. They need not step outside the Constitution. It is only needed that they should follow just principles in its interpretation. Let them be guided by a teacher like Edmund Burke, who spoke as follows:--

“_Men cannot covenant themselves out of their rights and their
duties_; nor by any other means can arbitrary power be conveyed
to any man. _Those who give to others such rights perform acts
that are void as they are given.…_ Those who give and those who
receive arbitrary power are alike criminal, and there is no man
but is bound to resist it to the best of his power, wherever
it shall show its face to the world. It is a crime to bear it,
when it can be rationally shaken off.”[290]