"While we such precedents can boast at home,Keep thy Fabricius and thy Cato, Rome!"
"While we such precedents can boast at home,Keep thy Fabricius and thy Cato, Rome!"
"While we such precedents can boast at home,Keep thy Fabricius and thy Cato, Rome!"
"While we such precedents can boast at home,
Keep thy Fabricius and thy Cato, Rome!"
They stood not alone. The convictions and earnest aspirations of the country were with them. At the North these were broad and general. At the South they found fervid utterance from slaveholders. By early and precocious efforts for "total emancipation," the author of the Declaration of Independence placed himself foremost among the Abolitionists of the land. In language now familiar to all, and which can never die, he perpetually denounced Slavery. He exposed its pernicious influence upon master as well as slave, declared that the love of justice and the love of country pleaded equally for the slave, and that "the abolition of domestic slavery was the greatest object of desire." He believed that "the sacred side was gaining daily recruits," and confidently looked to the young for the accomplishment of this good work.[133]In fitful sympathy with Jefferson was another honored son of Virginia, the Orator of Liberty, Patrick Henry, who, while confessing that he was a master of slaves, said: "I will not, I cannot justify it. However culpable my conduct, I will so far pay my devoir to Virtue as to own the excellence and rectitude of her precepts, and lament my want of conformity to them."[134]At this very period, in the Legislature of Maryland, on a bill for the relief of oppressed slaves, a young man, afterwards by consummate learning and forensic powers acknowledged head of the American bar, William Pinkney, in a speech of earnest, truthful eloquence,—better for his memory than even his professional fame,—branded Slavery as "iniquitous and most dishonorable," "founded in a disgraceful traffic," "its continuance as shameful as its origin"; and he openly declared, that "by the eternal principles of natural justice, no master in the State has a right to hold his slave in bondage for a single hour."[135]
Thus at that time spoke theNation. TheChurchalso joined its voice. And here, amidst diversities of religious faith, it is instructive to observe the general accord. Quakers first bore their testimony. At the adoption of the Constitution, their whole body, under the early teaching of George Fox, and by the crowning exertions of Benezet and Woolman, had become an organized band of Abolitionists, penetrated by the conviction that it was unlawful to hold a fellow-man in bondage. Methodists, numerous, earnest, and faithful, never ceased by their preachers to proclaim the same truth. Their rules in 1788 denounced, in formal language, "the buying or selling the bodies and souls of men, women, or children, with an intention to enslave them."[136]The words of their great apostle, John Wesley, were constantly repeated. On the eve of the National Convention, that burning tract was circulated in which he exposes American Slavery as "vilest" of the world,—"such slavery as is not found among the Turks at Algiers"; and after declaring "Liberty the right of every human creature," of which "no human law can deprive him," he pleads, "If, therefore, you have any regard to justice (to say nothing of mercy, nor the revealed law of God), render unto all their due. Give liberty to whom liberty is due,—that is, to every child of man, to every partaker of human nature."[137]At the same time the Presbyterians, a powerful religious body, inspired by the principles of John Calvin, in more moderate language, but by a public act, recorded their judgment, recommending "to all their people to use the most prudent measures, consistent with the interest and the state of civil society in the counties where they live,to procure eventually the final abolition of Slavery in America."[138]The Congregationalists of New England, also nurtured in the faith of John Calvin, and with the hatred of Slavery belonging to the great Nonconformist, Richard Baxter, were sternly united against this wrong. As early as 1776, Samuel Hopkins, their eminent leader and divine, published his tract showing it to be the Duty and Interest of the American Colonies to emancipate all their African slaves, and declaring that Slavery is "in every instance wrong, unrighteousness, and oppression,—a very great and crying sin,—there being nothing of the kind equal to it on the face of the earth."[139]And in 1791, shortly after the adoption of the Constitution, the second Jonathan Edwards, a twice-honored name, in an elaborate discourse often published, called upon his country, in "the present blaze of light" on the injustice of Slavery, to "prepare the way for its total abolition." This he gladly thought at hand. "If we judge of the future by the past," said the celebrated preacher, "within fifty years from this time it will be as shameful for a man to hold a negro slave as to be guilty of common robbery or theft."[140]
Thus, at this time, the Church, in harmony with the Nation, by its leading denominations, Quakers, Methodists, Presbyterians, and Congregationalists, thundered against Slavery. TheCollegeswere in unison with the Church. Harvard University spoke by the voice of Massachusetts, which already had abolished Slavery. Dartmouth College, by one of its learned Professors, claimed for the slaves "an equal standing, in point of privileges, with the whites."[141]Yale College, by its President, the eminent divine, Ezra Stiles, became the head of the Abolition Society of Connecticut.[142]And the University of William and Mary, in Virginia, at this very time testified its sympathy with the cause by conferring upon Granville Sharp, the acknowledged chief of British Abolitionists, the honorary degree of Doctor of Laws.[143]
TheLiteratureof the land, such as then existed, agreed with the Nation, the Church, and the College.Franklin, in the last literary labor of his life,[144]—Jefferson, in his "Notes on Virginia,"—Barlow, in his heroic verse,—Rush, in a work which inspired the praise of Clarkson,[145]—the ingenious author of the "Algerine Captive," the earliest American novel, and, though now but little known, one of the earliest American books republished in London,—were all moved by the contemplation of Slavery. "If our fellow-citizens in the Southern States are deaf to the pleadings of Nature," exclaims the last earnestly, "I will conjure them, for the sake of consistency, to cease to deprive their fellow-creatures of freedom, which their writers, their orators, representatives, senators, and even their Constitutions of Government, have declared to be the unalienable birthright of man."[146]A female writer and poet, earliest in our country among the graceful throng, Sarah Wentworth Morton, at the very period of the National Convention, admired by the polite society in which she lived, poured forth her sympathies also. The generous labors of John Jay in behalf of the crushed African inspired her muse; and in another poem, commemorating a slave who fell while vindicating his freedom, she rendered a truthful homage to his inalienable rights, in words which I now quote as testimony of the times:—
"Does not the voice of Reason cry,'Claim the first right that Nature gave,From the red scourge of bondage fly,Nor deign to live a burdened slave'?"[147]
"Does not the voice of Reason cry,'Claim the first right that Nature gave,From the red scourge of bondage fly,Nor deign to live a burdened slave'?"[147]
"Does not the voice of Reason cry,'Claim the first right that Nature gave,From the red scourge of bondage fly,Nor deign to live a burdened slave'?"[147]
"Does not the voice of Reason cry,
'Claim the first right that Nature gave,
From the red scourge of bondage fly,
Nor deign to live a burdened slave'?"[147]
Such, Sir, at the adoption of the Constitution and the firstorganization of the National Government, was the outspoken, unequivocal heart of the country. Slavery was abhorred. Like the slave-trade, it was regarded as transitory; and by many it was supposed that they would disappear together. As the oracles grew mute at the coming of Christ, and a voice was heard, crying to mariners at sea, "Great Pan is dead!" so at this time Slavery became dumb, and its death seemed to be near. Voices of Freedom filled the air. The patriot, the Christian, the scholar, the writer, the poet, vied in loyalty to this cause. All were Abolitionists.
The earliest Congress under the Constitution attests this mood. One of its first acts was to accept the Ordinance of Freedom for the Northwestern Territory, thus ratifying the prohibition of Slavery in allexistingterritory. It is impossible to exaggerate the importance of this act as a national landmark, especially when we consider that on the list of those who sanctioned it were men fresh from the National Convention, and therefore familiar with the Constitution which it framed. The same Congress entertained the question of Slavery in other forms,—sometimes on memorials duly presented, and then again in debate. Virginia was heard by her Abolition Society denouncing Slavery as "not only an odious degradation, but an outrageous violation of one of the most essential rights of human nature, and utterly repugnant to the precepts of the Gospel."[148]There was another petitioner, whose illustrious services at home and abroad entitled him to speak with authority rather than with prayer. It was none other than Benjamin Franklin. After a long life of various effort,—representing his country in England during the controversies that preceded the Revolution,—returning to take his great part in the Declaration of Independence,—then representing his country in its European negotiations,—then again returning to take his great part in the formation of the National Constitution, while all the time his life was elevated by philosophy and the peculiar renown he had won,—this Apostle of Liberty, recognized as such in the two hemispheres, whose name was signed to the Declaration of Independence, was signed to the Treaty of Alliance with France, was signed to the Treaty of Independence with Great Britain, was signed to the National Constitution, now set this same name to another instrument, a simple petition to Congress. At the age of eighty-four, venerable with years, and with all the honors of philosophy, diplomacy, and statesmanship,—a triple crown never before enjoyed,—the patriot sage comes forward, as President of the Abolition Society of Pennsylvania, and entreats Congress "that it would be pleased to countenance the restoration of Liberty to those unhappy men who alone in this land of Freedom are degraded into perpetual bondage,"—and then again, in concluding words, "that it wouldstep to the very verge of the power vested in it for discouraging every species of traffic in the persons of our fellow-men."[149]Shortly after this prayer the petitioner descended to his tomb, from which he still prays that Congresswill step to the very verge of the power vested in it toDISCOURAGESlavery; and this prayer, in simple words, proclaims the National policy of the Fathers. Not encouragement, but discouragement of Slavery,—not itsnationalization, but itsdenationalization, was their rule.
Sir, enough has been said to show the sentiment which, like a vital air, surrounded the National Government as it stepped into being. In the face of this history, and in the absence of any positive sanction, it is absurd to suppose that Slavery, which under the Confederation had been merely sectional, was now constituted national. Our fathers did not say, with the apostate angel, "Evil, be thou my good!" In different spirit they cried out to Slavery, "Get thee behind me, Satan!"
There is yet another link. In the discussions which took place in the local conventions on the adoption of the Constitution, a sensitive desire was manifested to surround all persons under the Constitution with additional safeguards. Fears were expressed, from the supposed indefiniteness of some of the powers conceded to the National Government, and also from the absence of a Bill of Rights. Massachusetts, on ratifying the Constitution, proposed a series of amendments, at the head of which was this, characterized by Samuel Adams, in the Convention, as "A Summary of a Bill of Rights":—
"That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised."[150]
"That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised."[150]
New Hampshire, New York, Rhode Island, Virginia, South Carolina, and North Carolina, with minorities in Pennsylvania and Maryland, united in this proposition. In pursuance of these recommendations, the First Congress presented for adoption the following article, which, being ratified by the proper number of States, became part of the Constitution as the Tenth Amendment:—
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Stronger words could not be employed to limit the power under the Constitution, and to protect the people from all assumptions of the National Government,particularly in derogation of Freedom. Its guardian character commended it to the sagacious mind of Jefferson, who said: "I consider the foundation of the Constitution as laid on this ground."[151]And Samuel Adams, ever watchful for Freedom, said: "It removes a doubt which many have entertained respecting this matter, and gives assurance, that,if any law made by the federal Government shall be extended beyond the power granted by the proposed Constitution, and inconsistent with the Constitution of this State, it will be an error, and adjudged by the courts of law to be void."[152]
Beyond all question, the National Government, ordained by the Constitution, is not general or universal, but special and particular. It is a government of limited powers. It has no power which is not delegated. Especially is this clear with regard to an institution like Slavery. The Constitution contains no power to make a king, or to support kingly rule. With similar reason it may be said, that it contains no power to make a slave, or to support a system of Slavery. The absence of all such power is hardly more clear in the one casethan in the other. But if there be no such power, all national legislation upholding Slavery must be unconstitutional and void. The stream cannot be higher than the fountain-head. Nay, more,nothing can come out of nothing; the stream cannot exist, if there be no spring from which it is fed.
At the risk of repetition, but for the sake of clearness, review now this argument, and gather it together. Considering that Slavery is of such an offensive character that it can find sanction only in "positive law," and that it has no such "positive" sanction in the Constitution,—that the Constitution, according to its Preamble, was ordained to "establish justice" and "secure the blessings of liberty,"—that, in the Convention which framed it, and also elsewhere at the time, it was declared not to sanction Slavery,—that, according to the Declaration of Independence, and the Address of the Continental Congress, the Nation was dedicated to "Liberty," and the "rights of human nature,"—that, according to the principles of the Common Law, the Constitution must be interpreted openly, actively, and perpetually for Freedom,—that, according to the decision of the Supreme Court, it acts upon slaves,not as property, but asPERSONS,—that, at the first organization of the National Government under Washington, Slavery had no national favor, existed nowhere on the national territory, beneath the national flag, but was openly condemned by Nation, Church, Colleges, and Literature of the time,—and, finally, that, according to an Amendment of the Constitution, the National Government can exercise only powers delegated to it, among which is none to support Slavery,—considering these things, Sir,it is impossible to avoid the single conclusion, that Slavery is in no respect a national institution, and that the Constitution nowhere upholds property in man.
There is one other special provision of the Constitution, which I have reserved to this stage, not so much from its superior importance, but because it fitly stands by itself. This alone, if practically applied, would carry Freedom to all within its influence. It is an Amendment proposed by the First Congress, as follows:—
"Nopersonshall be deprived of life,liberty, or property,without due process of law."
"Nopersonshall be deprived of life,liberty, or property,without due process of law."
Under this great ægis the liberty of every person within the national jurisdiction is unequivocally placed. I say every person. Of this there can be no question. The word "person" in the Constitution embraces every human being within its sphere, whether Caucasian, Indian, or African, from the President to the slave. Show me a person within the national jurisdiction, and I confidently claim for him this protection, no matter what his condition or race or color. The natural meaning of the clause is clear, but a single fact of its history places it in the broad light of noon. As originally recommended by Virginia, North Carolina, and Rhode Island, it was restricted to thefreeman. Its language was, "Nofreemanought to be deprived of his life,liberty, or property, but by the law of the land."[153]In rejecting this limitation, the authors of the Amendment revealed their purpose, that no person, under the National Government, of whatever character, should be deprived of liberty without due process of law,—that is, without due presentment, indictment, or other judicial proceeding. But this Amendment is nothing less than an express guaranty of Personal Liberty, and an express prohibition of its invasion anywhere, at least within the national jurisdiction.
Sir, apply these principles, and Slavery will again be as when Washington took his first oath as President. The Union Flag of the Republic will become once more the flag of Freedom, and at all points within the national jurisdiction will refuse to cover a slave. Beneath its beneficent folds, wherever it is carried, on land or sea, Slavery will disappear, like darkness under the arrows of the ascending sun,—like the Spirit of Evil before the Angel of the Lord.
In all national territories Slavery will be impossible.
On the high seas, under the national flag, Slavery will be impossible.
In the District of Columbia Slavery will instantly cease.
Inspired by these principles, Congress can give no sanction to Slavery by the admission of new Slave States.
Nowhere under the Constitution can the Nation, by legislation or otherwise, support Slavery, hunt slaves, or hold property in man.
Such, Sir, are my sincere convictions. According to the Constitution, as I understand it, in the light of the Past and of its true principles, there is no other conclusion which is rational or tenable, which does not defy authoritative rules of interpretation, does not falsify indisputable facts of history, does not affrontthe public opinion in which it had its birth, and does not dishonor the memory of the Fathers. And yet politicians of the hour undertake to place these convictions under formal ban. The generous sentiments which filled the early patriots, and impressed upon the government they founded, as upon the coin they circulated, the image and superscription ofLiberty, have lost their power. The slave-masters, few in number, amounting to not more than three hundred and fifty thousand, according to the recent census, have succeeded in dictating the policy of the National Government, and have writtenSlaveryon its front. The change, which began in the desire for wealth, was aggravated by the desire for political predominance.[154]Through Slavery the cotton crop increased, with its enriching gains; through Slavery States became part of the Slave Power. And now an arrogant and unrelenting ostracism is applied, not only to all who express themselves against Slavery, but to every man unwilling to be its menial. A novel test for office is introduced, which would have excluded all the Fathers of the Republic,—even Washington, Jefferson, and Franklin! Yes, Sir! Startling it may be, but indisputable. Could these revered demigods of history once again descend upon earth and mingle in our affairs, not one of them could receive a nomination from the National Convention of either of the two old political parties! Out of the convictions of their hearts and the utterances of their lips against Slavery they would be condemned.
This single fact reveals the extent to which theNational Government has departed from its true course and its great examples. For myself, I know no better aim under the Constitution than to bring the Government back to the precise position on this question it occupied on the auspicious morning of its first organization by Washington,—
"Nunc retrorsumVela dare, atque iterare cursus. . . . relictos,"[155]—
"Nunc retrorsumVela dare, atque iterare cursus. . . . relictos,"[155]—
"Nunc retrorsumVela dare, atque iterare cursus. . . . relictos,"[155]—
"Nunc retrorsum
Vela dare, atque iterare cursus
. . . . relictos,"[155]—
that the sentiments of the Fathers may again prevail with our rulers, and the National Flag may nowhere shelter Slavery.
To such as count this aspiration unreasonable let me commend a renowned and life-giving precedent of English history. As early as the days of Queen Elizabeth, a courtier boasted that the air of England was too pure for a slave to breathe,[156]and the Common Law was said to forbid Slavery. And yet, in the face of this vaunt, kindred to that of our fathers, and so truly honorable, slaves were introduced from the West Indies. The custom of Slavery gradually prevailed. Its positive legality was affirmed, in professional opinions, by two eminent lawyers, Talbot and Yorke, each afterwards Lord Chancellor. It was also affirmed on the bench by the latter as Lord Hardwicke.[157]England was already a Slave State. The following advertisement, copied from a London newspaper,The Public Advertiser, of November 22, 1769, shows that the journals there were disfigured as some of ours, even in the District of Columbia.
"To be sold, a black girl, the property of J.B., eleven years of age, who is extremely handy, works at her needletolerably, and speaks English perfectly well; is of an excellent temper and willing disposition. Inquire of her owner at the Angel Inn, behind St. Clement's Church, in the Strand."
"To be sold, a black girl, the property of J.B., eleven years of age, who is extremely handy, works at her needletolerably, and speaks English perfectly well; is of an excellent temper and willing disposition. Inquire of her owner at the Angel Inn, behind St. Clement's Church, in the Strand."
At last, in 1772, only three years after this advertisement, the single question of the legality of Slavery was presented to Lord Mansfield, on a writ ofHabeas Corpus. A poor negro, named Sommersett, brought to England as a slave, became ill, and, with an inhumanity disgraceful even to Slavery, was turned adrift upon the world. Through the charity of an estimable man, the eminent Abolitionist, Granville Sharp, he was restored to health, when his unfeeling and avaricious master again claimed him as bondman. The claim was repelled. After elaborate and protracted discussion in Westminster Hall, marked by rarest learning and ability, Lord Mansfield, with discreditable reluctance, sullying his great judicial name, but in trembling obedience to the genius of the British Constitution, pronounced a decree which made the early boast a practical verity, and rendered Slavery forever impossible in England. More than fourteen thousand persons, at that time held as slaves, and breathing English air,—four times as many as are now found in this national metropolis,—stepped forth in the happiness and dignity of freemen.
With this guiding example I cannot despair. The time will yet come when the boast of our fathers will be made a practical verity also, and Court or Congress, in the spirit of this British judgment, will proudly declare that nowhere under the Constitution can man hold property in man. For the Republic such a decree will be the way of peace and safety. As Slavery is banished from the national jurisdiction, it will cease to vexour national politics. It may linger in the States as a local institution; but it will no longer engender national animosities, when it no longer demands national support.
II.
From this general review of the relations of the National Government to Slavery, I pass to the consideration ofTHE TRUE NATURE OF THE PROVISION FOR THE RENDITION OF FUGITIVES FROM SERVICE, embracing an examination of this provision in the Constitution, and especially of the recent Act of Congress in pursuance thereof. As I begin this discussion, let me bespeak anew your candor. Not in prejudice, but in the light of history and of reason, we must consider this subject. The way will then be easy, and the conclusion certain.
Much error arises from the exaggerated importance now attached to this provision, and from assumptions with regard to its origin and primitive character. It is often asserted that it was suggested by some special difficulty, which had become practically and extensively felt, anterior to the Constitution. But this is one of the myths or fables with which the supporters of Slavery have surrounded their false god. In the Articles of Confederation, while provision is made for the surrender of fugitive criminals, nothing is said of fugitive slaves or servants; and there is no evidence in any quarter, until after the National Convention, of hardship or solicitude on this account. No previous voice was heard to express desire for any provision on the subject. The story to the contrary is a modern fiction.
I put aside, as equally fabulous, the common saying,that this provision was one of the original compromises of the Constitution, and an essential condition of Union. Though sanctioned by eminent judicial opinions, it will be found that this statement is hastily made, without any support in the records of the Convention, the only authentic evidence of the compromises; nor will it be easy to find any authority for it in any contemporary document, speech, published letter, or pamphlet of any kind. It is true that there were compromises at the formation of the Constitution, which were the subject of anxious debate; but this was not one of them.
There was a compromise between the small and large States, by which equality was secured to all the States in the Senate.
There was another compromise finally carried, under threats from the South,on the motion of a New England member, by which the Slave States are allowed Representatives according to the whole number of free persons and "three fifths of all other persons,"[158]thus securing political power on account of their slaves, in consideration that direct taxes should be apportioned in the same way. Direct taxes have been imposed at only four brief intervals. The political power has been constant, and at this moment sends twenty-one members to the other House.
There was a third compromise, not to be mentioned without shame. It was that hateful bargain by which Congress was restrained until 1808 from the prohibition of the foreign slave-trade, thus securing, down to that period, toleration for crime. This was pertinaciously pressed by the South, even to the extent of absolute restriction on Congress. John Rutledge said: "If theConvention thinks that North Carolina, South Carolina, and Georgia will ever agree to the Plan [the National Constitution], unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest." Charles Pinckney said: "South Carolina can never receive the Plan, if it prohibits the slave-trade." Charles Cotesworth Pinckney "thought himself bound to declare candidly, that he did not think South Carolina would stop her importations of slaves in any short time."[159]The effrontery of the slave-masters was matched by the sordidness of the Eastern members, who yielded again. Luther Martin, the eminent member of the Convention, in his contemporary address to the Legislature of Maryland, described the compromise. "I found," he said, "the Eastern States, notwithstanding their aversion to Slavery, were very willing to indulge the Southern States at least with a temporary liberty to prosecute the slave-trade,provided the Southern States would in their turn gratify them by laying no restriction on navigation acts."[160]The bargain was struck, and at this price the Southern States gained the detestable indulgence. At a subsequent day Congress branded the slave-trade as piracy, and thus, by solemn legislative act, adjudged this compromise to be felonious and wicked.
Such are the three chief original compromises of the Constitution and essential conditions of Union. The case of fugitives from service is not of these. During the Convention it was not in any way associated withthese. Nor is there any evidence from the records of this body, that the provision on this subject was regarded with any peculiar interest. As its absence from the Articles of Confederation had not been the occasion of solicitude or desire, anterior to the National Convention, so it did not enter into any of the original plans of the Constitution. It was introduced tardily, at a late period of the Convention, and adopted with very little and most casual discussion. A few facts show how utterly unfounded are recent assumptions.
The National Convention was convoked to meet at Philadelphia on the second Monday in May, 1787. Several members appeared at this time, but, a majority of the States not being represented, those present adjourned from day to day until the 25th, when the Convention was organized by the choice of George Washington as President. On the 28th a few brief rules and orders were adopted. On the next day they commenced their great work.
On the same day, Edmund Randolph, of slaveholding Virginia, laid before the Convention a series of fifteen resolutions, containing his plan for the establishment of a New National Government. Here was no allusion to fugitive slaves.
Also, on the same day, Charles Pinckney, of slaveholding South Carolina, laid before the Convention what was called "A Draft of a Federal Government, to be agreed upon between the Free and Independent States of America," an elaborate paper, marked by considerable minuteness of detail. Here are provisions, borrowed from the Articles of Confederation, securing to the citizens of each State equal privileges in the several States, giving faith to the public records of the States, andordaining the surrender of fugitives from justice. But this draft, though from the flaming guardian of the slave interest, contained no allusion to fugitive slaves.
In the course of the Convention other plans were brought forward: on the 15th June, a series of eleven propositions by Mr. Patterson, of New Jersey, "so as to render the Federal Constitution adequate to the exigencies of Government and the preservation of the Union"; on the 18th June, eleven propositions by Mr. Hamilton, of New York, "containing his ideas of a suitable plan of Government for the United States"; and on the 19th June, Mr. Randolph's resolutions, originally offered on the 29th May, "as altered, amended, and agreed to in Committee of the Whole House." On the 26th July, twenty-three resolutions, already adopted on different days in the Convention, were referred to a "Committee of Detail," for reduction to the form of a Constitution. On the 6th August this Committee reported the finished draft of a Constitution. And yet in all these resolutions, plans, and drafts,sevenin number, proceeding from eminent members and from able committees, no allusion is made to fugitive slaves. For three months the Convention was in session, and not a word uttered on this subject.
At last, on the 28th August, as the Convention was drawing to a close, on the consideration of the article providing for the privileges of citizens in different States, we meet the first reference to this matter, in words worthy of note. "General [Charles Cotesworth] Pinckney was not satisfied with it. HeSEEMEDto wish some provisionshould be included in favor of property in slaves."But he made no proposition.Unwilling to shock the Convention, and uncertain in his own mind, he onlyseemedto wish such a provision. In this vague expression of a vague desire this idea first appeared. In this modest, hesitating phrase is the germ of the audacious, unhesitating Slave Act. Here is the little vapor, which has since swollen, as in the Arabian tale, to the power and dimensions of a giant. The next article under discussion provided for the surrender of fugitives from justice. Mr. Butler and Mr. Charles Pinckney, both from South Carolina, now moved openly to require "fugitive slaves and servants to be delivered up like criminals." Here was no disguise. With Hamlet, it was now said in spirit,—
"Seems, Madam! Nay, it is. I know notseems."
But the very boldness of the effort drew attention and opposition. Mr. Wilson, of Pennsylvania, the learned jurist and excellent man, at once objected: "This would oblige the Executive of the State to do it at the public expense." Mr. Sherman, of Connecticut, "saw no more propriety in the public seizing and surrendering a slave or servant than a horse." Under the pressure of these objections,the offensive proposition was withdrawn,—never more to be renewed. The article for the surrender of criminals was then unanimously adopted.[161]On the next day, 29th August, profiting by the suggestions already made, Mr. Butler moved a proposition,—substantially like that now found in the Constitution,—for the surrender, not of "fugitive slaves," as originally proposed, but simply of "persons bound to service or labor," which, without debate or opposition of any kind, was unanimously adopted.[162]
Here, palpably, was no labor of compromise, no adjustment of conflicting interests,—nor even any expression of solicitude. The clause finally adopted was vague and faint as the original suggestion. In its natural import it is not applicable to slaves. If supposed by some to be applicable, it is clear that it was supposed by others to be inapplicable. It is now insisted that the term "persons bound to service," or "held to service," as expressed in the final revision, is the equivalent or synonym for "slaves." This interpretation is rebuked by an incident to which reference has been already made, but which will bear repetition. On the 13th September—a little more than a fortnight after the clause was adopted, and when, if deemed to be of any significance, it could not have been forgotten—the very word "service" came under debate, and received a fixed meaning. It was unanimously adopted as a substitute for "servitude" in another part of the Constitution, for the reason that it expressed "theobligations of free persons," while the other expressed "the condition of slaves." In the face of this authentic evidence, reported by Mr. Madison, it is difficult to see how the term "persons held toservice" can be deemed to express anything beyond "the obligations offree persons." Thus, in the light of calm inquiry, does this exaggerated clause lose its importance.
The provision, showing itself thus tardily, and so slightly regarded in the National Convention, was neglected in much of the contemporaneous discussion before the people. In the Conventions of South Carolina, North Carolina, and Virginia, it was commended as securing important rights, though on this point there was difference of opinion. In the Virginia Convention, an eminent character, Mr. George Mason, with others, expressly declared that there was "no security of property coming within this section." In the other Conventions it was disregarded. Massachusetts, while exhibiting peculiar sensitiveness at any responsibility for Slavery, seemed to view it with unconcern. One of her leading statesmen, General Heath, in the debates of the State Convention, strenuously asserted, that, in ratifying the Constitution, the people of Massachusetts "would do nothing to hold the blacks in slavery." "The Federalist,"[163]in its classification of the powers of Congress, describes and groups a large number as "those which provide for the harmony and proper intercourse among the States," and therein speaks of the power over public records, standing next in the Constitution to the provision concerning fugitives from service; but it fails to recognize the latter among the means of promoting "harmony and proper intercourse"; nor does its triumvirate of authors anywhere allude to the provision.
The indifference thus far attending this subject still continued. The earliest Act of Congress, passed in 1793, drew little attention. It was not suggested originally by any difficulty or anxiety touching fugitives from service, nor is there any contemporary record, in debate or otherwise, showing that any special importance was attached to its provisions in this regard. The attention of Congress was directed to fugitives from justice, and, with little deliberation, it undertook, in the same bill, to provide for both cases. In this accidental manner was legislation on this subject first attempted.
There is no evidence that fugitives were often seized under this Act. From a competent inquirer we learn that twenty-six years elapsed before it was successfullyenforced in any Free State. It is certain, that, in a case at Boston, towards the close of the last century, illustrated by Josiah Quincy as counsel, the crowd about the magistrate, at the examination, quietly and spontaneously opened a way for the fugitive, and thus the Act failed to be executed. It is also certain, that, in Vermont, at the beginning of the century, a Judge of the Supreme Court of the State, on application for the surrender of an alleged slave, accompanied by documentary evidence, gloriously refused compliance,unless the master could show a Bill of Sale from the Almighty. Even these cases passed without public comment.
In 1801 the subject was introduced in the House of Representatives by an effort for another Act, which, on consideration, was rejected. At a later day, in 1817-18, though still disregarded by the country, it seemed to excite a short-lived interest in Congress. In the House of Representatives, on motion of Mr. Pindall, of Virginia, a committee was appointed to inquire into the expediency of "providing more effectually by law for reclaiming servants and slaves escaping from one State into another," and a bill reported by them to amend the Act of 1793, after consideration for several days in Committee of the Whole, was passed. In the Senate, after much attention and warm debate, it passed with amendments. But on return to the House for adoption of the amendments, it was dropped.[164]This effort, which, in the discussions of this subject, has been thus far unnoticed, is chiefly remarkable as the earliest recorded evidence of the unwarrantable assertion, now so common, that this provision was originally of vital importance to the peace and harmony of the country.
At last, in 1850, we have another Act, passed by both Houses of Congress, and approved by the President, familiarly known as the Fugitive Slave Bill. As I read this statute, I am filled with painful emotions. The masterly subtlety with which it is drawn might challenge admiration, if exerted for a benevolent purpose; but in an age of sensibility and refinement, a machine of torture, however skilful and apt, cannot be regarded without horror. Sir, in the name of the Constitution, which it violates, of my country, which it dishonors, of Humanity, which it degrades, of Christianity, which it offends, I arraign this enactment, and now hold it up to the judgment of the Senate and the world. Again, I shrink from no responsibility. I may seem to stand alone; but all the patriots and martyrs of history, all the Fathers of the Republic, are with me. Sir, there is no attribute of God which does not take part against this Act.
But I am to regard it now chiefly as an infringement of the Constitution. Here its outrages, flagrant as manifold, assume the deepest dye and broadest character only when we consider that by its language it is not restricted to any special race or class, to the African or to the person with African blood, but that any inhabitant of the United States, of whatever complexion or condition, may be its victim. Without discrimination of color even, and in violation of every presumption of freedom, the Act surrenders all who may be claimed as "owing service or labor" to the same tyrannical proceeding. If there be any whose sympathies are not moved for the slave, who do not cherish the rights of the humble African, struggling for divine Freedom, as warmly as the rights of the white man, let him consider well that the rights of all are equally assailed. "Nephew," said Algernon Sidney in prison, on the night before his execution, "I value not my own life a chip; but what concerns me is, thatthe lawwhich takes away my life may hang every one of you, whenever it is thought convenient."
Whilst thus comprehensive in its provisions, and applicable to all, there is no safeguard of Human Freedom which the monster Act does not set at nought.
It commits this great question—than which none is more sacred in the law—not to a solemn trial, but to summary proceedings.
It commits this great question, not to one of the high tribunals of the land, but to the unaided judgment of a single petty magistrate.
It commits this great question to a magistrate appointed, not by the President with the consent of the Senate, but by the Court,—holding office, not during good behavior, but merely during the will of the Court,—and receiving, not a regular salary, but fees according to each individual case.
It authorizes judgment onex parteevidence, by affidavit, without the sanction of cross-examination.
It denies the writ of Habeas Corpus, ever known as the Palladium of the citizen.
Contrary to the declared purposes of the framers of the Constitution, it sends the fugitive back "at the public expense."
Adding meanness to violation of the Constitution, it bribes the Commissioner by a double stipend to pronounce against Freedom. If he dooms a man to Slavery, the reward is ten dollars; but saving him to Freedom, his dole is five.
The Constitution expressly secures the "free exercise of religion": but this Act visits with unrelenting penalties the faithful men and women who render to the fugitive that countenance, succor, and shelter which in their conscience "religion" requires; and thus is practical religion directly assailed. Plain commandments are broken; and are we not told that "whosoever shall break one of these least commandments, and shall teach men so, he shall be called the least in the kingdom of Heaven"?[165]
As it is for the public weal that there should be an end of suits, so by the consent of civilized nations these must be instituted within fixed limitations of time; but this Act, exalting Slavery above even this practical principle of universal justice, ordains proceedings against Freedom without any reference to the lapse of time.
Glancing only at these points, and not stopping for argument, vindication, or illustration, I come at once upon two chief radical objections to this Act, identical in principle with those triumphantly urged by our fathers against the British Stamp Act:first, that it is a usurpation by Congress of powers not granted by the Constitution, and an infraction of rights secured to the States; and,secondly, that it takes away Trial by Jury in a question of Personal Liberty and a suit at Common Law. Either of these objections, if sustained, strikes at the very root of the Act. That it is obnoxious to both is beyond doubt.
Here, at this stage, I encounter the difficulty, that these objections are already foreclosed by legislation ofCongress and decisions of the Supreme Court,—that as early as 1793 Congress assumed power over this subject by an Act which failed to secure Trial by Jury, and that the validity of this Act under the Constitution has been affirmed by the Supreme Court. On examination, this difficulty will disappear.
The Act of 1793 proceeded from a Congress that had already recognized the United States Bank, chartered by a previous Congress, which, though sanctioned by the Supreme Court, has been since in high quarters pronounced unconstitutional. If it erred as to the Bank, it may have erred also as to fugitives from service. But the Act itself contains a capital error on this very subject, so declared by the Supreme Court, in pretending to vest a portion of the judicial power of the Nation in State officers. This error takes from the Act all authority as an interpretation of the Constitution. I dismiss it.
The decisions of the Supreme Court are entitled to great consideration, and will not be mentioned by me except with respect. Among the memories of my youth are happy days when I sat at the feet of this tribunal, whileMarshallpresided, withStoryby his side. The pressure now proceeds from the case ofPriggv.Pennsylvania(16 Peters, 539), where is asserted the power of Congress. Without going into minute criticism of this judgment, or considering the extent to which it is extra-judicial, and therefore of no binding force,—all which has been done at the bar in one State, and by an able court in another,—but conceding to it a certain degree of weight as a rule to the judiciary on this particular point, still it does not touch the grave question which springs from the denial of Trial by Jury. Thisjudgment was pronounced by Mr. Justice Story. From the interesting biography of the great jurist, recently published by his son, we learn that the question of Trial by Jury was not considered as before the Court; so that, in the estimation of the learned judge himself, it was still an open question. Here are the words.
"One prevailing opinion, which has created great prejudice against this judgment, is, that it denies the right of a person claimed as a fugitive from service or labor to a trial by jury. This mistake arises from supposing the case to involve the general question as to the constitutionality of the Act of 1793. But in fact no such question was in the case; and the argument, that the Act of 1793 was unconstitutional, because it did not provide for a trial by jury according to the requisitions of the sixth article in the Amendments to the Constitution, having been suggested to my father on his return from Washington, he replied, that this question was not argued by counsel nor considered by the Court, and that he should still consider it an open one."[166]
"One prevailing opinion, which has created great prejudice against this judgment, is, that it denies the right of a person claimed as a fugitive from service or labor to a trial by jury. This mistake arises from supposing the case to involve the general question as to the constitutionality of the Act of 1793. But in fact no such question was in the case; and the argument, that the Act of 1793 was unconstitutional, because it did not provide for a trial by jury according to the requisitions of the sixth article in the Amendments to the Constitution, having been suggested to my father on his return from Washington, he replied, that this question was not argued by counsel nor considered by the Court, and that he should still consider it an open one."[166]
But whatever may be the influence of this judgment as a rule to the judiciary, it cannot arrest our duty as legislators. And here I adopt with entire assent the language of President Jackson, in his memorable Veto, in 1832, of the Bank of the United States. To his course was opposed the authority of the Supreme Court, and this is his reply.
"If the opinion of the Supreme Court cover the whole ground of this Act, it ought not to control the coördinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution.Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the Supreme Judges, when it may be brought before them for judicial decision.... The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."[167]
"If the opinion of the Supreme Court cover the whole ground of this Act, it ought not to control the coördinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution.Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the Supreme Judges, when it may be brought before them for judicial decision.... The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."[167]
With these authoritative words I dismiss this topic. The early legislation of Congress and the decisions of the Supreme Court cannot stand in our way. I advance to the argument.
(1.)First, of the power of Congress over this subject.
The Constitution containspowersgranted to Congress,compactsbetween the States, andprohibitionsaddressed to the Nation and to the States. A compact or prohibition may be accompanied by a power,—but not necessarily, for it is essentially distinct in nature. And here the single question arises, Whether the Constitution, by grant, general or special, confers upon Congress anypowerto legislate on the subject of fugitives from service.
The whole legislative power of Congress is derived from two distinct sources: first, from the general grant, attached to the long catalogue of powers, "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Governmentof the United States, or in any department or officer thereof"; and, secondly, from special grants in other parts of the Constitution. As the provision in question does not appear in the catalogue of powers, and does not purport to vest any power in the Government of the United States, or in any department or officer thereof, no power to legislate on this subject can be derived from the general grant. Nor can any such power be derived from any special grant in any other part of the Constitution; for none such exists. The conclusion must be, that no power is delegated to Congress over the surrender of fugitives from service.
In all contemporary discussions and comments, the Constitution was constantly justified and recommended on the ground that the powers not given to the Government were withheld. If under its original provisions any doubt on this head could have existed, it was removed, so far as language could remove it, by the Tenth Amendment, which, as we have already seen, expressly declares, that "the powersnot delegatedto the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Here, on the simple text of the Constitution, I might leave this question. But its importance justifies more extended examination, in twofold light:first, in the history of the Convention, revealing the unmistakable intention of its members; and,secondly, in the true principles of our Political System, by which the powers of the Nation and of the States are respectively guarded.
Look first at thehistory of the Convention. The articles of the old Confederation, adopted by the Continental Congress 15th November, 1777, though containingno reference to fugitives from service, had provisions substantially like those in our present Constitution, touching the privileges of citizens in the several States, the surrender of fugitives from justice, and the credit due to the public records of States. But, since the Confederation had no powers not "expressly delegated," and as no power was delegated to legislate on these matters, they were nothing more than articles of treaty or compact. Afterwards, at the National Convention, these three provisions found place in the first reported draft of a Constitution, and were arranged in the very order which they occupied in the Articles of Confederation.The clause relating to public records stood last.Mark this fact.
When this clause, being in form merely acompact, came up for consideration in the Convention, various efforts were made to graft upon it apower. This was on the very day of the adoption of the clause relating to fugitives from service. Charles Pinckney moved to commit it, with a proposition for apowerto establish uniform laws on the subject of bankruptcy and foreign bills of exchange. Mr. Madison was in favor of apowerfor the execution of judgments in other States. Gouverneur Morris, on the same day, moved to commit a further proposition for apower"to determine the proof and effect of such acts, records, and proceedings." Amidst all these efforts to associate a power with this compact, it is clear that nobody supposed that any such already existed. This narrative places the views of the Convention beyond question.
The compact regarding public records, together with these various propositions, was referred to a committee, on which were Mr. Randolph and Mr. Wilson, withJohn Rutledge, of South Carolina, as chairman. After several days, they reported the compact, with apowerin Congress to prescribe by general laws the manner in which such records shall be proved. A discussion ensued, in which Mr. Randolph complained that the "definition of the powers of the Government was so loose as to give it opportunities of usurping all the State powers.He was for not going further than the Report, which enables the Legislature to provide for the effect of judgments."[168]The clause of compact with the power attached was then adopted, and is now part of the Constitution. In presence of this solicitude for the preservation of "State powers," even while considering a proposition for an express power, and also of the distinct statement of Mr. Randolph, that he "was for not going further than the Report," it is evident that the idea could not then have occurred, that a power was coupled with the naked clause of compact on fugitives from service.
At a later day the various clauses and articles severally adopted from time to time in Convention were referred to a committee of revision and arrangement, that they might be reduced to form as a connected whole.Here another change was made.The clause relating to public records, with the power attached, was taken from its original place at the bottom of the clauses of compact, and promoted to stand first in the article, as a distinct section, while the other clauses of compact concerning citizens, fugitives from justice, and fugitives from service, each and all without any power attached, by a natural association compose but a single section, thus:—
"Article IV."Section 1.Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."Section 2.The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime."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."Section 3.New Statesmay be admitted by the Congressinto this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States, without the consent of the Legislatures of the States concerned,as well as of the Congress."The Congress shall have powerto dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State."Section 4.The United States shall guarantyto every State in this Union a republican form of Government, andshall protecteach of them against invasion, and, on application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence."
"Article IV.
"Section 1.Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
"Section 2.The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.
"A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.
"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.
"Section 3.New Statesmay be admitted by the Congressinto this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States, without the consent of the Legislatures of the States concerned,as well as of the Congress.
"The Congress shall have powerto dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.
"Section 4.The United States shall guarantyto every State in this Union a republican form of Government, andshall protecteach of them against invasion, and, on application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence."
Here is the whole article, in its final form. It will be observed that the third section, immediately following the triad section of compacts, contains two specific powers,—one with regard to new States, and the other with regard to the public Territory. These are naturally grouped together, while the fourth section of this same article, which is distinct in character, is placed by itself. In the absence of all specific information, reason alone can determine why this arrangement was made. But the conclusion is obvious, that, in the view of the Committee and of the Convention, each of these sections differs from the others. The first contains a compact with a grant of power. The second contains provisions, all of which are simple compacts, and two of which were confessedly simple compacts in the old Articles of Confederation, from which, unchanged in character, they were borrowed. The third is a twofold grant of power to Congress, without any compact. The fourth is neither power nor compact merely, nor both united, but a solemn injunction upon the National Government to perform an important duty.
The framers of the Constitution were wise and careful, having a reason for what they did, and understanding the language they employed. They did not, after discussion, incorporate into their work any superfluous provision; nor did they without design adopt the peculiar arrangement in which it appears. Adding to the record compact an express grant of power, they testified not only their desire for such power in Congress, but their conviction that without such express grant it would not exist. But if express grant was necessary in this case, it was equally necessary in all the other cases.Expressum facit cessare tacitum.Especially, in view ofits odious character, was it necessary in the case of fugitives from service. Abstaining from any such grant, and then grouping the bare compact with other similar compacts, separate from every grant of power, they testified their purpose most significantly. Not only do they decline all addition to the compact of any such power, but, to render misapprehension impossible, to make assurance doubly sure, to exclude any contrary conclusion, they punctiliously arrange the clauses, on the principle ofnoscitur a sociis, so as to distinguish all the grants of power, but especially to make the new grant of power, in the case of public records, stand forth in the front by itself, severed from the naked compacts with which it was originally associated.
Thus the proceedings of the Convention show that the founders understood the necessity ofpowersin certain cases, and, on consideration, jealously granted them. A closing example will strengthen the argument. Congress is expressly empowered "to establish an uniform rule ofNaturalization, anduniform lawson the subject of Bankruptcies,throughout the United States." Without this provision these two subjects would have fallen within the control of the States, leaving the Nation powerlessto establish a uniform rulethereupon. Now, instead of the existing compact on fugitives from service, it would have been easy, had any such desire prevailed, to add this case to the clause on Naturalization and Bankruptcies, and to empower Congressto establish a uniform rule for the surrender of fugitives from service throughout the United States. Then, of course, whenever Congress undertook to exercise the power, all State control of the subject would be superseded. The National Government would havebeen constituted, like Nimrod, the mighty Hunter, with power to gather the huntsmen, to halloo the pack, and to direct the chase of men, ranging at will, without regard to boundaries or jurisdictions, throughout all the States. But no person in the Convention, not one of the reckless partisans of Slavery, was so audacious as to make this proposition. Had it been distinctly made, it would have been as distinctly denied.
The fact that the provision on this subject was adoptedunanimously, while showing the little importance attached to itin the shape it finally assumed, testifies also that it could not have been regardedas a source of National power for Slavery. It will be remembered that among the members of the Convention were Gouverneur Morris, who had said that he "NEVERwould concur in upholding domestic slavery,"—Elbridge Gerry, who thought we "ought to be carefulNOTto give any sanction to it,"—Roger Sherman, who "wasOPPOSEDto a tax on slaves imported,because it implied they were property,"—James Madison, who "thought itWRONGto admit in the Constitution the idea that there could be property in men,"—and Benjamin Franklin, who likened American slaveholders to Algerine corsairs. In the face of these unequivocal judgments, it is absurd to suppose that these eminent citizens consentedunanimouslyto any provision by which the National Government, the creature of their hands, dedicated to Freedom, could become the most offensive agent of Slavery.
Thus much for the evidence from the history of the Convention. But thetrue principles of our Political Systemare in harmony with this conclusion of history; and here let me say a word of State Rights.
It was the purpose of our fathers to create a National Government, and to endow it with adequate powers. They had known the perils of imbecility, discord, and confusion, protracted through the uncertain days of the Confederation, and they desired a government which should be a true bond of Union and an efficient organ of national interests at home and abroad. But while fashioning this agency, they fully recognized the governments of the States. To the Nation were delegated high powers, essential to the national interests, but specific in character and limited in number. To the States and to the people were reserved the powers, general in character and unlimited in number, not delegated to the Nation or prohibited to the States.
The integrity of our Political System depends upon harmony in the operations of the Nation and of the States. While the Nation within its wide orbit is supreme, the States move with equal supremacy in their own. But, from the necessity of the case, the supremacy of each in its proper place excludes the other. The Nation cannot exercise rights reserved to the States, nor can the States interfere with the powers of the Nation. Any such action on either side is a usurpation. These principles were distinctly declared by Mr. Jefferson in 1798, in words often adopted since, and which must find acceptance from all parties.
"That the several States composing the United States of America are not united on the principle of unlimited submission to their General Government; but that by a compact, under the style and title of a Constitution for the United States and of Amendments thereto, they constituted a General Government for special purposes,delegated to that Government certain definite powers, reserving, each State toitself, the residuary mass of right to their own self-government; and thatwhensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force."[169]
"That the several States composing the United States of America are not united on the principle of unlimited submission to their General Government; but that by a compact, under the style and title of a Constitution for the United States and of Amendments thereto, they constituted a General Government for special purposes,delegated to that Government certain definite powers, reserving, each State toitself, the residuary mass of right to their own self-government; and thatwhensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force."[169]
I have already amply shown to-day that Slavery is in no respect national,—that it is not within the sphere of national activity,—that it has no "positive" support in the Constitution,—and that any interpretation inconsistent with this principle would be abhorrent to the sentiments of its founders. Slavery is a local institution, peculiar to the States, and under the guardianship of State Rights. It is impossible, without violence to the spirit and letter of the Constitution, to claim for Congress any power to legislate either for its abolition in the States or its support anywhere.Non-Interventionis the rule prescribed to the Nation. Regarding the question in its more general aspects only, and putting aside, for the moment, the perfect evidence from the records of the Convention, it is palpable that there is nonational fountainout of which the existing Slave Act can possibly spring.
But this Act is not only an unwarrantable assumption of power by the Nation, it is also an infraction of rights reserved to the States. Everywhere within their borders the States are the peculiar guardians ofpersonal liberty. By Jury and Habeas Corpus to save the citizen harmless against all assault is among their duties and rights. To his State the citizen, when oppressed, may appeal; nor should he find that appeal denied. But this Act despoils him of rights, and despoils his State of all power to protect him. It subjects him to the wretchedchance of false oaths, forged papers, and facile commissioners, and takes from him every safeguard. Now, if the slaveholder has a right to be secureat homein the enjoyment ofSlavery, so also has the freeman of the North—and every person there is presumed to be a freeman—an equal right to be secureat homein the enjoyment ofFreedom. The same principle of State Eights by which Slavery is protected in the Slave States throws an impenetrable shield over Freedom in the Free States. And here, let me say, is the only security for Slavery in the Slave States, as for Freedom in the Free States. In the present fatal overthrow of State Rights you teach a lesson which may return to plague the teacher. Compelling the National Government to stretch its Briarean arms into the Free States for the sake of Slavery, you show openly how it may stretch these same hundred giant arms into the Slave States for the sake of Freedom. This lesson was not taught by our fathers.
Here I end this branch of the question. The true principles of our Political System, the history of the National Convention, the natural interpretation of the Constitution, all teach that this Act is a usurpation by Congress of powers that do not belong to it, and an infraction of rights secured to the States. It is a sword, whose handle is at the National Capital, and whose point is everywhere in the States. A weapon so terrible to Personal Liberty the Nation has no power to grasp.