Chapter VII: Front Matter (7)

1. The first position I take is this: _That slavery has no legal existence any where, unless by force of positive law._

If any man claims authority over the body, mind, and soul of one of his fellow-men, and claims this authority not only for the whole life of his victim, but a like authority over all his descendants, there is no part of the civilized world where he will not be required to show some positive law, authorizing the power and the bondage. If the claimant says, “I am stronger, or I am wiser than he;” or, “I have an Anglo-Saxon brain, while he has only an African brain;” or, “my skin is white, and his skin is not white;” or, “I descended from Shem, and he from Ham; and, therefore, he is my slave,”--there is not a court in Christendom, which, though it may admit the fact, will ratify the inference. If the claimant affirms that it is _morally_ right for him to seize his fellow-man and reduce him to slavery; if he brings the Bible into court as his law book, and cites Abraham and Isaac, and Jacob and Paul, as his authorities; still, I say, there is not a court in Christendom that will not deny the validity of the title, and rebuke the arrogance of the demand.[6] Positive law, then, is the only foundation of slavery. The authorities are numerous, if not numberless, to establish this position. I shall not encumber this argument by citing many of them. The few which I shall cite will contain a reference to the rest.

The grand reason against slavery given by Lord Mansfield, in Somerset’s case, was, “that it is so intrinsically wrong that it is incapable of being introduced into any country, on any reasons moral or political, and can only stand on positive law.” 20 State Trials, 1.

Chief Justice Marshall says, “That it [slavery] is contrary to the law of nature, will scarcely be denied. That every man has a natural right to the fruits of his own labor, is generally admitted; and that no other person can rightfully deprive him of those fruits and appropriate them against his will, seems to be the necessary result of this admission.” Antelope, 10 Wheat., 120.

“The first objection,” says Mr. Justice Best, in the case of Forbes and Cochrane, “which occurs to me, in this case, is that it does not appear, in the special case, that the right to slaves exists in East Florida. _That right is not a general but a local right_; it ought, therefore, to have been shown that it existed in Florida, and that the defendants knew of its existence. Assuming, however, that those facts did appear, still, under the circumstances of this case, this action could not be maintained.

“The question is, Were these persons slaves at the time when Sir G. Cockburn refused to do the act which he was desired to do? I am decidedly of opinion that they were no longer slaves. The moment they put their feet on board of a _British_ man-of-war, not lying within the waters of East Florida, (where undoubtedly the laws of that country would prevail,) those persons who had before been slaves were free.... Slavery is a local law, and, therefore, if a man wishes to preserve his slaves, let him attach them to him by affection, or make fast the bars of their prison, or rivet well their chains; _for the instant they get beyond the limits where slavery is recognized by the local law, they have broken their chains, they have escaped from their prison, and are free_.” 2 Barn. & Cres. 466-7; _Forbes_ vs. _Cochrane_, S. C., 3 Dowl. & Ryland, 679.

“I am of opinion,” says Holroyd, J., in the same case, “that according to the principles of the English law the right to slaves, even in a country where such rights are recognized by law, must be considered as founded, not upon the law of nature, but upon the particular law of that country.”

“The law of slavery is a law _in invitum_; _and when a party gets out of the territory where it prevails_, and out of the power of his master, and gets under the protection of another power, without any wrongful act done by the party giving that protection, the right of the master, _which is founded on the municipal law of the particular place only_, does not continue, and there is no right of action against a party who merely receives the slave in that country, without doing any wrongful act.”

The definition of slavery given by the Roman law implies that it is local: _Servitus est constitutio juris gentium, qua quis dominio alieno_, CONTRA NATURAM, _subjicitur_. _Commonwealth_ vs. _Aves_, 18 Pick. Rep., 193; _Lunsford_ vs. _Coquillon_, 14 Martin’s Rep. 402. “The relation of owner and slave is a creation of the municipal law.” _Rankin_ vs. _Lydia_, 3 Marshall, 470, Ky.; _Butler_ vs. _Hopper_, 1 Wash. C. C. Rep. 499; _Ex parte Simmons_, 4 Wash. C. C. 296; _Marie Louise_ vs. _Marot et al._, 9 Curry’s Louisiana Rep. 473.

This point may be presented in another light. By the law of nature all men are free. But in some governments the law of the state, upheld by the power of the state, overrides the law of nature, and enslaves a portion of the people. The law of nature recedes before this legalized violence; but it recedes no farther than the legalized violence drives it back. Within the jurisdictional limits of such states, then, slavery is made _legal_, though it is not made _right_. But if a slave passes out of the jurisdiction where violence overpowers right, into a jurisdiction where right is superior to violence, he is then free; not because there is any change in the man, but because there is a change in the laws to which the man is subject.

There may, however, be some further positive law which, though it does not authorize the buying or selling of a slave, still does provide that an escaped or escaping slave may be recaptured and redelivered into bondage. Such is the third paragraph of the second section of the fourth article of the constitution of the United States. Such, too, is the act of Congress of February 12, 1793, providing for the recapture of fugitive slaves. This, however, would not be without positive law.

The debates in all the conventions for adopting the constitution of the United States, proceed upon the ground that slavery depends upon positive law for its existence. If it did not,--if a man who has a legal right to a slave in Virginia, has a legal right to him anywhere,--then the provision in the constitution, and the act of 1793 for recapturing fugitive slaves, would have been unnecessary.

On the south side of a boundary line, then, slavery may exist by force of positive law; while, on the north side, in the absence of any such law, slavery is unlawful. A slave passing out of a jurisdiction where slavery is legalized, into a jurisdiction where it is not, becomes free. It is as though a man should migrate from one of those South Sea islands, where cannibalism is legalized, and where the public authorities, according to the reports of travellers, not only condemn and execute a criminal, _but dine on him, after he is executed_,--it is, I say, as though the subject of such a government should migrate into one where cannibalism is not lawful, and where, therefore, though he should be condemned and executed for crime, it would be no part of the sentence or the ceremony that he should be eaten by his judges. He is out of cannibal jurisdiction.

The right of freedom is a natural right. It is a positive existence. It is a moral entity. Like the right to life, it pertains, by the law of nature and of God, to every human being. This moral right continues to exist until it is abolished. Some act abolishing this freedom, then, must be proved; it must be proved affirmatively, or else the fact of freedom remains. This is the solid and indestructible ground of the maxim, that slavery can exist only by positive law; that it is a _local_ institution; that the right of freedom must first be abolished before slavery can exist.

2. My second position is this: _That a man’s legal condition may be changed by a change in the government over him, while he remains in the same place, just as effectually as it can be changed by his removal to another place, and putting himself under another government._ The inhabitants of the North American colonies did not change their place of residence when they passed from under the government of Great Britain, and came under the government of the confederation. The Mexicans, inhabiting the then states of California and New Mexico, did not change their place of residence, when, on the thirtieth day of May last, they ceased to be citizens of the Mexican republic, and became citizens, or _quasi_ citizens of the United States. Their political relations were changed, not by their removal from under the canopy of one government and placing themselves under the canopy of another government, but by the withdrawal of one government from over them, and by the extension to them of certain _political_ rights and capacities under another government. Before this thirtieth day of May, they could have committed treason against Mexico, but not after it. Before it, they could not commit treason against the United States; but when they shall be citizens of the Union, they can. These vital changes in their relations are without any change in their residence. Within my recollection, an old gentleman died in Massachusetts, who had lived in five different towns, but still remained where he was born, like one of the old oak trees on the homestead. The part of the original town where he was born had been set off and incorporated into a new town; and that part of the second town where he lived, into a third; and so on, until he died in the fifth town without any change of domicile. Now, this man lived under the jurisdiction and by-laws of five towns, as they were successively incorporated over him, just as much as though he had struck his tent five times, and placed himself, by successive migrations, under five different municipal jurisdictions.

A similar thing must have happened to thousands of our fellow-citizens of the Union. Some of them at first lived under a foreign government; then under one territorial government; then under another; and at last have become citizens of a state, without any change of domicile. Indeed, it would seem that nothing can be clearer than the proposition, whether regarded as a legal or a political one, that the laws and the jurisdiction may be changed over a man who continues to reside in the same place, just as effectually and as completely as a man may change the laws and jurisdiction over himself by removing to a different place. In many cases, the former works a more thorough change than the latter. The laws of Great Britain do not acknowledge the right of self-expatriation; while, at the same time, it is held, that the inhabitants of a foreign province, incorporated into the kingdom, change their allegiance without changing their residence.

3. My third proposition is this: _That the jurisdiction under which the inhabitants of what is now the District of Columbia lived, prior to the cession of the District by Maryland to the United States, was utterly and totally changed, at the moment of the cession,--at the moment when, according to the provisions of the constitution, they ceased to be citizens of the state of Maryland, and became citizens of the District of Columbia._

By the 17th paragraph, (Hickey’s Constitution,) of the 8th section of the 1st article, it is provided that Congress shall have power “to exercise exclusive legislation in all cases whatsoever over such District, (not exceeding ten miles square,) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States.”

Congress, then, has the power of sole and exclusive legislation, “in all cases whatsoever,” in regard to the District of Columbia. What is the meaning of the word “exclusive” in this connection? It cannot mean _absolute_ and _uncontrolled_; for, if it did, it would make Congress as sovereign as the Russian autocrat. It means that no other government, no other body of men whatever, shall have concurrent power of legislation over the District; nor, indeed, any subordinate power, except what may be derived from Congress. Over every man who is a citizen of one of the United States, there are two jurisdictions,--the jurisdiction of the general government, and the jurisdiction of the state government. There are two governments that have the power to legislate for him; but there is only one power,--the Congress of the United States,--that can legislate for a citizen of the District of Columbia.

In _Kendall_ vs. _The United States_, 12 Peters, 524, it is said, “There is in the District of Columbia no division of powers between the general and state governments. Congress has the entire control over the District, for every purpose of government.”

So it has been held that a justice of the peace in the District of Columbia is an officer of the government of the United States, and is therefore exempt from militia duty. _Wise_ vs. _Withers_, 3 Cranch, 331; 1 Cond. Rep. 552.

A citizen of the District of Columbia is not a citizen of any one of the United States. _Hepburn et al._ vs. _Ellery_, 2 Cranch, 445; _Westcott’s Lessee_ vs. _Inhabitants ----_, Peters, C. C. R. 45.

Up to the time of the cession, the inhabitants of this District were under two jurisdictions--that of Maryland and that of Congress; but after the cession, under that of Congress alone. Now, when the inhabitants of this District passed out of the jurisdiction of Maryland, and came under the exclusive jurisdiction of Congress, let us see what was the effect of such change of jurisdiction upon them.

In the act of Congress of 1790, c. 28, sect. 1, which was an act for establishing the seat of government of the United States, there is the following clause: “_Provided, nevertheless_, That the operation of the laws of the state [of Maryland] within such District shall not be affected by this acceptance, _until the time fixed for the removal of the government thereto, and until Congress shall otherwise by law provide_.”

Here, then, Congress _expressly_ provided and contracted with the state of Maryland, that the laws of Maryland in this District should not be interfered with until the removal of the seat of government to this place; and Congress likewise _impliedly_ provided and contracted, that when the seat of government should be removed to this place, it would discharge the duty imposed upon it by the constitution of the United States, and would assume and exercise the “exclusive legislation” provided for in that instrument. This act of Congress was approved on the 16th of July, 1790.

By the Maryland laws of 1791, c. 45, sect. 2, that state ceded to the United States the territory which now constitutes the District of Columbia, and the words of the cession are these: “In full and absolute right, as well of soil as of person, residing or to reside thereon,” &c. ... provided that the jurisdiction of the laws of Maryland “shall not cease or determine _until Congress shall by law provide for the government thereof_.”

The state of the case, then, was simply this: 1. The constitution gave Congress power of “exclusive legislation” over such district as might be ceded for the seat of government. 2. Congress, by the act of 1790, above referred to, proposed to the state of Maryland to accept a portion of her territory for this purpose, but engaged not to interfere with her laws until after it had taken actual possession of the ceded territory. 3. Maryland accepted the proposition, rehearsing the condition in these words; namely, that “the laws of Maryland shall not cease or determine until Congress shall by law provide for the government thereof.”

By the 6th section of the act of 1790, c. 28, Congress provided that it would remove to this District, and make this the seat of government, on the first Monday of December, 1800. It did so; and now its express duty under the constitution, and its implied promise to the state of Maryland, were to be fulfilled, by exercising “exclusive legislation” over this District.

In fulfilment of this duty and promise, Congress, on the 27th of February, 1801, by the act of 1801, c. 15, proceeded to legislate for the District of Columbia; and, in the first section of that act, it provided as follows:--

“_Be it enacted, &c._, That the laws of the state of Virginia, as they now exist, shall be and continue in force in that part of the District of Columbia which was ceded by the said state to the United States, and by them accepted for the permanent seat of government; and that the laws of the state of Maryland, as they now exist, shall be and continue in force in that part of the said District which was ceded by that state to the United States, and by them accepted, as aforesaid.”

By this act, then, Congress assumed to exercise, and did exercise, that exclusive legislation over the District of Columbia which had been provided for by the constitution.

That portion of the District which was ceded to Congress by Virginia, having been receded to that state by the act of Congress of July 9, 1846, (stat. 1846, c. 35,) all that relates to it may, for the purposes of this argument, be laid out of the question.

On the 27th day of February, 1801, then, the laws of Maryland, _as such_, were abrogated in this District. The legislative power of Congress was _de facto_ exclusive. All legislative power previously possessed by Maryland over it, then ceased. The connection of Maryland with this District, as a part of its former territory, and occupied by its former citizens, was dissolved. It had no longer any more legislative power over the District than Maine or Georgia had. Historically, we may talk about the laws of Maryland, as they once existed here; but practically, and as a matter of strict law and fact, her laws were no longer known within the District. The laws which governed the people of this District after the 27th day of February, 1801, were the laws of Congress, and not the laws of Maryland.

To show that this part of the District passed out from under the government of Maryland, and came under the government of the United States, I refer to _Reilly, appellant_, vs. _Lamar et al._, 2 Cranch, 344; 1 Cond. Rep. 322, where it is said, “By the separation of the District of Columbia from the State of Maryland, the residents in that part of Maryland which became a part of the District, ceased to be citizens of the state.” It was held, in that case, that a citizen of the District of Columbia could not be discharged by the insolvent law of Maryland.

A citizen of the District of Columbia cannot maintain an action in the circuit court of the United States out of the District, he not being a citizen of the state within the meaning of the provision of the law of the United States regulating the jurisdiction of the courts of the United States. _Hepburn et al._ vs. _Ellzey_, 2 Cranch, 445; 1 Cond. Rep. 444. See also _Loughborough_ vs. _Blake_, 5 Wheat. 317, and _Levy Court of Washington_ vs. _Ringgold_, 5 Peters, 451.

4. The next point of inquiry is, _What is the legal force and effect, upon the subject of slavery, of the act of Congress of 1801, before cited?_ Its words are, “That the laws of the state of Maryland, as they now exist, shall be continued in force in that part of said District which was ceded by that state to the United States,” &c. And here, I acknowledge that the operation of this clause is precisely the same as though Congress had transcribed all the Maryland laws, word for word, and letter for letter, into its own statute book, with the clause prefixed, “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,” and the President of the United States had affixed his signature thereto. I acknowledge further, that the laws of Maryland had legalized slavery within the state of Maryland, and had defined what classes of persons might be held as slaves therein.

But it by no means follows, because Congress proposed to reënact, in terms, for this District, all the laws of Maryland, that, therefore, it did reënact them. It does not follow, that because two legislatures use the same words, that the words must necessarily have the same effect. It makes all the difference in the world, whether words are used by one possessed of power, or by one devoid of power. Congress might pass a law in precisely the same words as those used by the Parliament of Great Britain, and yet the law of Congress be invalid and inoperative, while the act of Parliament would be valid and binding. We have a written constitution; Great Britain has no written constitution. The British Parliament, on many subjects, has an ampler jurisdiction than the American Congress. The law of Congress might be unconstitutional and void, while that of the British Parliament, framed in precisely the same language, might be constitutional and binding.

So the law of Maryland might be valid under the constitution of Maryland, and, therefore, binding upon the citizens of Maryland; while the law of Congress, though framed in precisely the same words, would be repugnant to the constitution of the United States, and therefore have no validity.

Now this is precisely the case before us. Congress, in attempting to reënact the Maryland laws, to uphold slavery in this District, transcended the limits of its constitutional power. It acted unconstitutionally. It acted in plain contravention of some of the plainest and most obvious principles consecrated by the constitution. If so, no one will dispute that its act is void. I do not deny, then, that Congress used words of sufficient amplitude to cover slavery; but what I deny is, that it had any power to give legal force to those words.

5. My next proposition, therefore, is this: _That as Congress can do nothing excepting what it is empowered to do by the constitution, and as the constitution does not empower it to establish slavery here, it cannot establish slavery here, nor continue it._

Where is there any _express_ power given to Congress by the constitution to establish slavery? Where is the article, section, or clause? I demand to have the title shown. Thousands of human beings are not to be robbed of all their dearest rights, and they and their children, forever, by strained constitutions, or apocryphal authority, doomed to bondage. Will those who say that Congress cannot establish a banking institution by construction, nor aid internal improvements, nor enact a tariff,--will they say that Congress can make a man a slave, and all his posterity slaves, by construction?

Nor can any power to establish slavery be deduced from the 18th clause of the 8th section of the 1st article of the constitution, which gives Congress power “to make all laws which shall be necessary and proper for carrying into execution” the powers that are granted.

What power is granted to Congress, for the exercise of which the establishment of slavery in this District is a necessary means or a preliminary? Congress has power to lay and collect taxes; to borrow money; to regulate commerce; to establish uniform rules of naturalization; to coin money; to punish counterfeiters; to establish post offices and post roads; to promote the progress of science and the arts; to establish courts; to define and punish piracies on the high seas; to declare war; to raise and support armies; to provide and maintain a navy; to organize and maintain a militia; and so forth, and so forth. But to what one of all these powers is the power to establish slavery in the District of Columbia a necessary incident? If slavery in the District of Columbia were to cease to-day, could not the government continue to exercise every function which it has heretofore exercised? If so, then the existence of slavery in this District is not “necessary” to the exercise of any of the expressly granted powers. I call upon any gentleman to name any one power of this government which cannot be exercised, which must necessarily cease, if slavery should cease to be, in this District of Columbia? “I pause for a reply.”

Well, then, if a power to establish slavery in this District is not among the granted powers, and if it is not necessary for the exercise of any one of the granted powers, then it is--no where;--it does not exist at all. No power of Congress, then, exists, either for the creation or for the continuance of slavery in this District; and all the legislation of Congress upon this subject is beyond or against the constitution.

Let me illustrate this in another way. Suppose there had been a religious establishment in Maryland at the time of the cession; suppose, under the auspices of Lord Baltimore, the Catholic religion had been established as the religion of the state; and that, in order to punish heresy and secure conformity to the religion of the state, an inquisition had been founded, and that the seat of that inquisition had been within the limits of the District of Columbia, at the time of the cession; could Congress, in the absence of all express or implied authority on the subject of establishing a state religion, have upheld the Catholic religion here, and appointed the officers of the inquisition to administer it? The idea is abhorrent to the whole spirit of the constitution. But Congress had as much power to establish a national religion here, in the absence of all express or implied authority to do so, as to establish slavery here.

Congress, then, does not and cannot legalize slavery in this District. It found slavery in existence in the states; and it does not abolish it, or interfere with it, because it has no power of “exclusive legislation” in them. But Congress has as much right to go into any state and abolish slavery there, as any state, even Virginia or Maryland, has to come into this District with its laws and establish slavery here. I suppose that no jurist will contend that Congress could have passed the act of 1793, for the recapture of fugitive slaves, had it not been for the third clause in the second section of the fourth article of the constitution, which provides for the redelivery of a fugitive slave, on the claim of his master. By this article in the constitution, the case of _fugitive_ slaves only is provided for. If a master voluntarily carries his slave into a free state, and the slave departs from his possession, he cannot reclaim him. Why not? Why cannot Congress pass a law, that if a man takes a dozen slaves to Boston, and they there see fit to strike for wages, and to leave his possession because their terms are not complied with,--why is it, I ask, that Congress cannot pass a law authorizing their seizure and delivery into the master’s hands? The reason is, that the constitution has conferred upon Congress no such express power, nor is any such power implied as being necessary to the exercise of any power that is expressed. And if Congress cannot so much as restore a slave to a master, who has voluntarily carried him into a free state, how can it continue slavery in this District, after Maryland has ceded it to this government, whose fundamental, organic law gives it no power to create or continue slavery here?

Suppose Maryland had ceded her share of the District to Massachusetts, would not every slave in it have been instantaneously free by the constitution of Massachusetts? They would have been transferred to a free jurisdiction,--just as much as an individual owner of a slave transfers him to a free jurisdiction, when he voluntarily takes him to the north. The legal existence of slavery was annulled in this District when Congress exercised its “exclusive” power over it, just as much as the debtor’s right to be discharged under the Maryland bankrupt law was annulled.

But I go further than this; and I say that the constitution not only does not empower Congress to establish or continue slavery in this District, but again and again, by the strongest implications possible, it prohibits the exercise of such a power.

In regard to this whole matter of slavery, the constitution touches the subject with an averted face. The abhorred word “_slave_” is nowhere mentioned in it. The constitution is ashamed to utter such a name. The country, coming fresh from that baptism of fire,--the American Revolution,--would not profane its lips with this unhallowed word. Hence, circumlocution is resorted to. It seeks to escape a guilty confession. Like a culprit, in whom some love of character still survives, it speaks of its offence without calling it by name. It uses the reputable and honorable word “persons,” instead of the accursed word “slaves.” As the Tyrian queen, about to perpetrate a deed which would consign her character to infamy, called it by the sacred name of “marriage,” and committed it,--

“_Hoc prætexit nomine culpam_;”

so the constitution, about to recognize the most guilty and cruel of all relations between man and man, sought to avert its eyes from the act, and to pacify the remonstrances of conscience against every participation in the crime, by hiding the deed under a reputable word.

But let us look to the prohibitions of the constitution; for I maintain that there is not only no power, express or implied, in the constitution authorizing Congress to create or continue slavery in this District, but that it is debarred and prohibited from doing so, again and again.

I suppose no one will deny that the positive prohibitions, against the exercise of certain enumerated powers, apply to Congress, when legislating for this District, just as much as when legislating for the union at large. This doctrine has recently been strongly asserted by Mr. Calhoun in the Senate of the United States; and, as I would gladly produce conviction in southern minds, I make use of this southern authority. He affirms that Congress, in legislating for the territories, “is subject to many and important restrictions and conditions, of which some are expressed and others implied. Among the former may be classed all the general and absolute prohibitions of the constitution; that is, all those which prohibit the exercise of certain powers under any circumstances. In this class is included the prohibition of granting titles of nobility; passing _ex post facto_ laws and bills of attainder; the suspension of the writ of _habeas corpus_, except in certain cases; making laws respecting the establishment of religion, or its free exercise, and every other of like description.”

Will any man say that Congress can pass an _ex post facto_ law for this District, and defend itself by referring to its power of “exclusive legislation” over it? Can Congress pass a bill of attainder corrupting the blood of an inhabitant of this District, or repeal or suspend at any time his right to a writ of _habeas corpus_, or establish a religion here, or interdict the free exercise thereof? No jurist, no statesman, will pretend it.

But there is another prohibition in the constitution every whit as full and explicit as any of these. The fifth article of amendment declares that “no person shall be deprived of life, liberty, or property, without due process of law.”

Here the constitution uses the word “person,”--the most comprehensive word it could find. “No PERSON shall be deprived of life, liberty, or property, without due process of law.” Now, what does this word “person” mean? Or who, under the constitution, is such a “person” as cannot be deprived of life, liberty, or property, by virtue of an act of Congress, _without due process of law_? Let us take our definition of the word “_person_” from the constitution itself. “No _person_ shall be a representative, who shall not have attained the age of twenty-five years,” &c., (see 2d clause of the 2d section of the 1st article.) “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, 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_.” (3d clause of the same section.) “No _person_ shall be a senator who shall not have attained the age of thirty years,” &c. (1st art., 3d section, 3d clause.) “No _person_ shall be convicted [of an impeachable offence, by the Senate] without the concurrence of two thirds.” (1st art., 3d section, 6th clause.) “No _person_ holding any office under the United States, shall be a member of either House, during his continuance in office.” (1st art., 6th section, 2d clause.) “The migration or importation of such _persons_ as any of the states now existing shall think proper to admit, shall not be prohibited,”--“but a tax, or duty, may be imposed on such importation, not exceeding ten dollars for each _person_,” &c. (1st art., 9th section, 1st clause.) “No _person_ holding any office of profit or trust,” “shall accept any present,” &c. (1st art., 9th section, 8th clause.) “No _person_ holding an office of trust or profit under the United States, shall be appointed an elector.” (2d art., 1st section, 2d clause.) “The electors shall meet in their respective states and vote by ballot for two _persons_,” &c. “The _person_ having the greatest number of votes shall be the President,” &c. “If no _person_ have a majority,” &c. “In every case, after the choice of the President, the _person_ having the greatest number of votes of the electors, shall be Vice President.” (2d art., 1st section, 2d clause.[7]) “No _person_ except a natural born citizen,” &c., “shall be eligible to the office of President; neither shall any _person_ be eligible to that office, who shall not have attained the age of thirty-five years,” &c. “No _person_ shall be convicted of treason, unless on the testimony of two witnesses,” &c. (3d art., 3d sect., 3d clause.) “A _person_ charged in any state with treason,” &c. (4th art., 2d section, 2d clause.) “No _person_ held to service or labor,” &c. (4th art., 2d section, 3d clause.)

Now, it will be seen from all this, that the word “_person_” is used in the constitution in the most comprehensive sense. It embraces Indians, if taxed; it embraces natives of Africa; it embraces apprentices and slaves, or those held to service or labor; and it embraces every citizen, from the humblest to the highest, from the most true to the most treasonable. It embraces all, from the slave to the President of the United States. And after having used the word to embrace all these classes and descriptions of men, it proceeds to say, in an amendment, that “_no_ PERSON _shall be deprived of life, liberty, or property, without due process of law_.” (_Amendment, Article 5._)

The law of Maryland ceded this District to Congress, “in full and absolute right, as well of soil as of person, residing, or to reside therein.”

Now Congress, in attempting to legalize slavery in the District of Columbia, has provided in terms, by its adoption of the Maryland laws, that one man may hold another man in bondage in this District, “WITHOUT DUE PROCESS OF LAW,” and indeed without any process of law; may hold him in bondage from his birth; may beget him, and still hold him and his posterity in bondage. “Process of law” means legal proceedings and a jury trial. It is a phrase that does not pertain to the legislature, but to the courts. It means the institution of a suit in civil matters; the finding of an indictment, or an information in criminal ones; the issuing of subpœnas for witnesses, &c., in both. (See _Art. 6 of Amendments to the Constitution_.)

Now, a slave is a _person_ deprived of his liberty and property, without any process of law. There has been no “due” process of law to reduce him to this miserable condition; there has been no process of law at all. A slave, therefore, in this District, is deprived of his liberty and property, in pursuance of the laws of Congress, without _any_ legal process whatever, and therefore in flagrant contradiction of the fifth article of the Amendments to the Constitution of the United States. Hence, the act of Congress, purporting to continue the Maryland laws respecting slavery in this District, was, and is, and forever must be, until the constitution is altered, null and void.

There is a striking historical fact in regard to the phraseology of this fifth article of amendment. Its substance was proposed by several states. Virginia proposed it in the following words: “No _freeman_ ought to be taken, imprisoned, or disseized of his freehold liberties, privileges, or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the law of the land.” (See _3 Elliot’s Debates, 593--Proceedings of June 27, 1788_. _Also, 4 Elliot’s Debates, 216, for the same amendment, as proposed by the State of New York_.)

The Virginia amendment used the word “freeman.” It proposed that no “freeman” should be deprived, &c. The New York amendment used the word “_person_.” And the amendment was adopted and ratified, almost in the words of the New York phraseology. The word _person_ was chosen, and therefore Congress has no constitutional power to deprive of life, liberty, or property, _without due process of law_, any being embraced in the definition of that word. By its own selection of words it is debarred not merely from depriving a “_freeman_,” but from depriving a “_person_” of this right.

When Congress attempted to legalize and perpetuate slavery in this District, it violated the fourth article of the Amendments, which declares “the right of the people to be _secure_ in their persons, houses, papers, and effects, against unreasonable searches and seizures.” If Congress cannot authorize domiciliary searches and seizures against a single individual, can it degrade a whole race of men to the condition of slaves, and then say that _because they are slaves_, they shall not be “secure;” but shall be at the mercy of any alleged master, in regard to their persons,--to be commanded and restrained, to be bought and sold? If Congress cannot authorize searches and seizures of houses, papers, and effects, can it get round the constitution, by saying we will create a class of persons who shall have no power of owning any houses, papers, or effects, to be searched or seized?

Again; Congress shall pass “no bill of attainder.” What is a bill of attainder? It is a bill that works corruption of blood. It disfranchises its object. It takes away from him the common privileges of a citizen. It makes a man incapable of acquiring, inheriting, or transmitting property; incapable of holding office, or acting as attorney for others; and it shuts the door of the courts against him. These disabling consequences may descend to a man’s children after him, though this is not necessary. Now, to pass such a bill is a thing which Congress cannot do. But when Congress undertook to legalize slavery in this District, it undertook to do all this, and worse than all this. It attainted, not individuals merely, but a whole race. A slave is an outlaw; that is, he cannot make a contract; he cannot prosecute and defend in court; property cannot be acquired by him, or devised to him, or transmitted through him. A white man may give his testimony against him, but he cannot give his testimony against a white man. He is despoiled of his _liberam legem_,--his birthright. He cannot own the food or clothes he has earned. What is his, is his master’s. And this corruption of blood, which the law of slavery works, does not stop with the first, nor with the second generation,--not with the tenth nor the ten thousandth; but by the theory of the law, goes on forever. Bills of attainder, during the history of the worst periods of the world, have applied to individuals only, or at most to a family. But here, Congress, in defiance of the constitution, has undertaken to establish a degraded caste in society, and to perpetuate it through all generations. Now, can any reasonable man for a moment suppose that the constitution meant to debar Congress from passing acts of attainder against individuals, but to permit it to pass wholesale, sweeping laws, working disfranchisement of an entire race, and entailing degradation forever?

Let us look at another general prohibition of the constitution: “No title of nobility shall be granted by the United States.” (art. 1, § 9, clause 8.) “The distinction of rank and honors,” says Blackstone, “is necessary in every well-governed state, in order to reward such as are eminent for their services to the public.” But the framers of the constitution did not think so; the people of the United States did not think so; and therefore they incorporated a provision into their organic law that “no title of nobility should be granted.” But it matters not whether the favored individual is called “Marquess” or “Master.” If he is invested by the government with a monopoly of rights and privileges, in virtue of his title and its legal incidents, without any corresponding civil duties, he belongs to an order of nobility,--he is a nobleman. Mr. McDuffie defends the institution of slavery, on the ground that it establishes the highest of all ranks and the broadest of all distinctions between men. He says no nation has yet existed which has not in some form created the distinction of classes,--such as patrician and plebeian, or citizen and helot, or lord and commoner,--and that the institution of slavery stands here instead of these orders, and supersedes them all, by being equivalent to them all. Now, is it not inconceivable that the constitution should interdict the bestowment of special favors to distinguished individuals for meritorious services, and yet should authorize Congress to confer the highest of all earthly prerogatives,--the prerogative over property, liberty, and volition itself, upon one class of men over another class of men? Yet if Congress can create or legalize slavery, it can establish the worst order of nobility that ever existed. It can give to one class of men the power to own and to control, to punish and to despoil another class; to sell father, mother, wife, and children, into bondage. To prohibit Congress from doing one of these things, and to permit it to do the other, is straining at a gnat and swallowing a camel,--a whole caravan of camels!

But the same clause in the constitution which gives Congress the power of exclusive legislation over this District, also empowers it “to exercise like authority over all places purchased by the consent of the legislature of the state, in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” If, then, Congress has any constitutional power to legalize slavery in this District, it has the same power to legalize it, (that is, to create it,) in all places in the state of Massachusetts, or New York, or any other, where it may have obtained territory from a state for a fort, magazine, arsenal, dock-yard, or other needful building. Where it has obtained land in the middle of a city,--Philadelphia, New York, Boston, or Chicago,--for a custom-house, it may create slavery there. The power to do this is conferred in precisely the same words as the power by which it has been held that slavery can be established in the District of Columbia.

And now I will occupy the few minutes that are left me, in considering what seems to me the only plausible argument that can be urged in favor of the constitutionality of slavery in this District.

It may be said, that when a territory is obtained by one nation from another, whether by conquest or by treaty, the laws which governed the inhabitants at the time of the conquest or cession, remain in force until they are abrogated by the laws of the conquering or purchasing power. For this principle, the authority of Lord Mansfield, in the case of _Campbell_ v. _Hall_, 1 Cowper, 208, may be cited. The decision of our own courts are to the same effect. (See _United States, appellant_, vs. _Juan Percheman_, 2 Gallison’s Reports, 501; _Johnson_ vs. _McIntosh_, 7 Peters, 51; 8 Wheat. 543.) I do not dispute the authority of this case. But it does not touch the question I am arguing; or, so far as it bears upon it at all, it confirms the views I would enforce. The principle is, that the existing laws remain in force _until_ they are abrogated. I agree to this. But in the case of the District of Columbia, there was a special agreement between Maryland and the United States, that as soon as the United States should legislate for the District, the laws of Maryland, _as such_, should cease to be operative here. On the 27th day of February, 1801, therefore, all the rights which the citizens of this District possessed, they possessed under the law of Congress, and not under the law of Maryland. On the day preceding, a citizen could have voted for governor or other state officers of Maryland; but on the day following, he could no longer vote for any such officer. On the day preceding, he could have voted for electors of President and Vice President of the United States; but on the day following, he was bereft of all such right of the elective franchise, and must accept such officers and legislators as the rest of the country might choose to elect for him. On the day preceding, he might, in the character of an insolvent debtor, have been discharged under the insolvent laws of Maryland; but on the day following, he could no longer be so discharged. On the day preceding, he might have been required, though a justice of the peace of the State of Maryland, to perform militia duty; but on the day following, if commissioned as a justice of the peace of the District of Columbia, he could not be compelled to perform militia duty, because he would, in such case, be an officer of the United States. On the day preceding, he might have sued in the circuit court of the United States, as being a citizen of Maryland; but, on the day following, he could not so sue, because he had ceased to be a citizen of a state. Thus the change of jurisdiction over him deprived him of some privileges, and relieved him from some burdens. It deprived him of these privileges, and relieved him from these burdens, notwithstanding the act of Congress had said, in unambiguous words, “the laws of the State of Maryland, AS THEY NOW EXIST, _shall be and continue in force_ in that part of the said District which was ceded by that state to the United States.” But the most momentous change which was wrought by the transfer of the citizen from the jurisdiction of Maryland to the jurisdiction of the United States, was that which made it impossible for him any longer to hold a slave. Under the laws of Maryland, he might have held his slave, for her statutes had legalized slavery; but under the constitution of the United States, he could not hold a slave; for that constitution had given Congress no power to legalize slavery in this District, and had gone so far as to make prohibitions against it. His right to hold slaves then expired, or fell, like his right to vote for United States’ officers, or for state officers, or his right to be discharged under the Maryland insolvent law, or his right to sue in certain courts, &c., &c.

One point more, sir, and I have done. Why, says my opponent, did not the right to hold slaves continue after the change of jurisdiction, as well as the right to hold horses? For the plainest of all reasons, I answer: for the reason that a horse is _property_ by the universal consent of mankind, by the recognition of every civilized court in Christendom, without any positive law declaring it to be the subject of ownership. But a _man_ is not property, without positive law; without a law declaring him to be the subject of ownership. There was such a positive law in Maryland; but Congress, for want of constitutional authority, could not enact, revive, or continue it. And such I verily believe would have been the decision of the Supreme Court of the United States, had the question been carried before them immediately subsequent to the act of 1801. But now, as slavery has existed practically in this District for half a century, it is proper to pass a law abolishing it. It is better, under the present circumstances, that slavery should be abolished here by a law of Congress, than by the decision of a court; because Congress can provide an indemnity for the owners, and let the slaves go free. But should it be abolished by a legal adjudication, every slave would be hurried away to the south, and sold, he and his descendants, into perpetual bondage.

In justice, then, to the north, which ought not to bear the opprobrium of slavery in this capital of the nation; in justice to the slaves who are here held in bondage against legal, as well as natural right; and, in more than justice to the masters, whose alleged claims I am willing, under all the circumstances, to satisfy, let a law be forthwith passed for ascertaining and paying the market value of the slaves, and for repealing all laws which uphold slavery in this District.

FOOTNOTES:

[5] Lecture on the North and South. Delivered in College Hall, January 16, 1849, before the Young Men’s Mercantile Library Association of Cincinnati. By Ellwood Fisher.

[6] An anecdote, which I have on the best authority, is not inappropriate. A few years ago, a citizen of the State of Connecticut absconded, leaving a wife behind him. He went to the State of Mississippi, where he took a colored woman as his concubine, had children by her, acquired property, and died. The wife and heirs in Connecticut claimed the property acquired in Mississippi. The claim was contested. The honorable HENRY S. FOOTE, now a senator from that state, conducted the defence. He denied the title of the wife in Connecticut, affirmed that of the concubine and her children in Mississippi, and cited the case of Abraham and Sarah and Hagar, to prove the legality and the propriety of the concubinage, and the divine authority for it. And surely, if the Bible argument in favor of slavery is sound, Mr. FOOTE’S argument in favor of concubinage is equally so.

[7] This clause in the constitution is annulled; but for all purposes of determining the true interpretation of words, it is as good as ever.

SPEECH

DELIVERED IN THE UNITED STATES HOUSE OF REPRESENTATIVES. FEBRUARY 15, 1850, ON THE SUBJECT OF SLAVERY IN THE TERRITORIES, AND THE CONSEQUENCES OF A DISSOLUTION OF THE UNION.

MR. CHAIRMAN;

Ever since the organization of this House,--before its organization, and even in a preliminary caucus that preceded the commencement of the session, southern gentlemen have pressed the cause, not only of human slavery, but of slavery extension, upon us. From motives of forbearance, and not from any question as to our rights, we of the north have maintained an unbroken silence. The time has surely come when the voice of freedom should find an utterance. Would to God that on the present occasion it might find an abler defender than myself, although if my ability to defend it were equal to the love I bear it, it could ask no stronger champion.