By this section, therefore, it is provided that no person held as a slave in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from his slavery, but shall be delivered up on claim of his owner. The laws of one State, whether they support slavery or any other institution, have no power in another State. Consequently, if a slave escapes into a Free State, he becomes free. This is the general rule of law. In virtue of it, thousands of slaves are now free on the soil of Canada. In virtue of it, a fugitive slave from South Carolina would be free in this State, were it not for this section in the Constitution. But this section declares that he shall not thereby become free, but shall be delivered up. Again,the Constitution makes an exception from a general rule of law in favor of slavery. It gives to slaveholders, and slave-laws, a power which the general rule of law does not give. It enables a South Carolina slaveholder to drag from the soil of Massachusetts a person whom the general rule of law pronounces free, solely because South Carolina laws declare the contrary. It makes the whole Union a vast hunting-ground for slaves! There is not a single spot from the Atlantic to the Pacific, from the St. John's to the Rio del Norte, or "wheresoe'er may be the fleeting boundary of this republic," on which a fugitive slave may rest, and his owner may not, in virtue of this clause, claim and retake him as his slave!
Art. 1, sec. 8: "Congress shall have power ... to provide for calling forth the militia ...to suppress insurrections."
Art. 4, sec. 4: "The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and, on application of the legislature or of the executive (when the legislature cannot be convened), againstdomestic violence."
Allinsurrections andallcases of domestic violence are here provided for. To constitute an insurrection within themeaning of the Constitution, there must be a rising against those laws which are recognized as such by the Constitution; and, to make out a case of domestic violence, the violence must be exerted against that right or power which is recognized by the Constitution as lawful. But, by Art. 4, sec. 2, the Constitution admits that some persons are legally slaves; else the clause itself must be entirely inoperative. Consequently, if these persons rise in rebellion, or commit acts of violence contrary to the laws which hold them in slavery, their rising constitutes an insurrection; such acts are acts of violence within the meaning of the Constitution, and consequently must be suppressed by the national power. And what insurrections were more likely to happen and more to be dreaded than slave-insurrections, and therefore more likely to have been provided for?
Slave-owners are not the only slaveholders. All persons who voluntarily assist or pledge themselves to assist in holding persons in slavery are slaveholders.In sober truth, then, we are a nation of slaveholders!for we have bound our whole national strength to the slave-owners, to aid them, if necessary, in holding their slaves in subjection!
CHAPTER XIII.
THE CONSTITUTION AS ITS FRAMERS INTENDED TO MAKE IT.
"Yes!—it cannot be denied—the slaveholding lords of the South prescribed, as a condition of their assent to the Constitution, three special provisions to secure the perpetuity of their dominion over their slaves."—John Quincy Adams.
The question, What kind of a Constitution did its framers intend to make? is purely an historical one; and it must be obvious to all, that any thing like a complete statement of the evidence on this point cannot be given within the limits of this pamphlet.
On the 17th of September, 1787, the Philadelphia Convention adopted the plan of the present Constitution. The draft thus made was submitted to the people, assembled in State Conventions, "for their assent and ratification." President Madison has preserved a record of the debates in the Philadelphia Convention; and we have also published accounts of the debates in several of the State Conventions. We draw our evidence mainly from these sources.
Apportionment of Representatives.(Const. Art. 1, sec. 2.)
On the 18th of April, 1783, the Continental Congress passed a resolve, recommending the States to amend the Articles of Confederation in such manner that the national expenses should be defrayed out of a common treasury, "which shall be supplied by the several States, in proportion to the whole number of white or other free inhabitants, ofevery age, sex, and condition, including those bound to servitude for a term of years, and three-fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes, in each State." This amendment was adopted by eleven out of the thirteen States.
A single glance is sufficient to satisfy any one, that, under the expression in this resolve, "all other persons," slaves were intended; and an equally cursory glance suffices to show, that Art. 1, sec. 2, of the Constitution is derived, almost copied, from this resolve. Did not the framers of the Constitution, in adopting the same expression (Art. 1, sec. 2), mean the same thing as the Continental Congress?
In the Massachusetts Convention, Art. 1, sec. 2, of the Constitution having been read, Rufus King, one of its framers, rose to explain it:—
"This paragraph states, that the number of free persons 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.These persons are the slaves.By this rule is representation and taxation to be apportioned, and it was adopted because it was the language of all America....
Five negro-children of South Carolina are to pay as much tax as the three governors of New Hampshire, Massachusetts, and Connecticut."
In the New York Convention, Alexander Hamilton, another of the framers, remarked:—
"The first thing objected to is that clause which allows a representation for three-fifths of the negroes....
"The regulation complained of was one result of the spirit of accommodation which governed the Convention; and,without this indulgence, no union could possibly have been formed."
In the Pennsylvania Convention, James Wilson, another of the framers, said, referring to the resolve of the Continental Congress passed in 1783:—
"It was not carried into effect, but it was adopted by no fewer than eleven out of thirteen States; and it cannot but be matter ofsurprise to hear gentlemen, who agreed to this very mode of expression at that time, come forward, and state it as an objection on the present occasion. It was natural, sir, for the late Convention to adopt the mode after it had been agreed to by eleven States, and to use the expression which they found had been received as unexceptionable before."
In a speech before the legislature of Maryland, Luther Martin, also a delegate to the Philadelphia Convention, offers the following clear and unmistakable testimony:—
"With respect to that part of the second section of the first article, it was urged that no principle could justify taking slaves into computation in apportioning the number of representatives a State should have in the government;—thatit involved the absurdity of increasing the power of a State in making laws for freemen, in proportion as that State violated the rights of freedom;—that it might be proper to take slaves into consideration, when taxes were to be apportioned, because it had a tendency to discourage slavery; but to take them into account in giving representation tended to encourage the slave-trade, and to make it the interest of the States to continue that infamous traffic."
In the North Carolina Convention, Wm. R. Davie, a member of the Convention who framed the Constitution, said:—
"The Eastern States had great jealousies on this subject. They insisted that their cows and horses were equally entitled to representation; that the one was property as well as the other. It became our duty, on the other hand, to acquire as much weight as possible in the legislation of the Union; and, as the Northern States were more populous in whites, this only could be done by insisting that a certain proportion of ourslavesshould make a part of the computed population."
In the South Carolina Convention, General Chas. C. Pinckney, another of the framers of the Constitution, said:—
"We were at a loss for some time for a rule to ascertain the proportionate wealth of the States. At last we thought that the productive labor of the inhabitants was the best rule for ascertaining their wealth. In conformity to this rule, joined to a spirit ofconcession, we determined that representatives should be apportioned among the several States, by adding to the whole number of free persons, three-fifths of theslaves."
Permission of the African Slave-trade.(Const. Art. 1, sec. 9.)
In the Massachusetts Convention, Mr. Dawes, speaking in relation to Art. 1, sec. 2, said that—
"Gentlemen would do well to connect the passage in dispute with another article in the Constitution, that permits Congress, in the year 1808, wholly to prohibit the importation ofslaves, and in the meantime to impose a duty of ten dollars a head on such blacks as should be imported before that period."
Many persons spoke in the Convention on this section; and, among others, Judge Dana rejoiced that a door was opened by it for the annihilation of the slave-trade.
In the Pennsylvania Convention, Mr. Wilson said:—
"Under the present confederation, the States may admit theimportation of slaves as long as they please; but by this article, after the year 1808, the Congress will have power to prohibit such importation, notwithstanding the disposition of any State to the contrary.... It is with much satisfaction I view this power in the general government, whereby they may lay an interdiction on this reproachful trade. But an immediate advantage is also obtained; for a tax or duty may be imposed on such importation, not exceeding ten dollars for each person; and this, sir, operates as a partial prohibition. It was all that could be obtained: I am sorry it was no more."
In Maryland, Luther Martin, in the speech before referred to, says, speaking of this section:—
"The design of this clause is toprevent the general government from prohibiting the importation of slaves; but the same reasons which caused them to strike out the word 'national,' and not admit the word 'stamps,' influenced them here to guard against the word 'slaves.' They anxiously sought to avoid the admission of expressions which might be odious in the ears of Americans, although they were willing to admit into their system those things which the expressions signified."
Mr. Martin thus gives the well-known history of the compromise involved in this clause:—
"This clause was the subject of a great diversity of sentiment in the Convention. As the system was reported by the committee of detail, the provision was general, that such importation should not be prohibited, without confining it to any particular period. This was rejected by eight States; Georgia, South Carolina, and, I think, North Carolina, voting for it.
"We were then told by the delegates of the two first of those States, that their States would never agree to a system which put it in the power of the general government to prevent the importation of slaves; and that they, as delegates from those States, must withhold their assent from such a system.
"A committee of one member from each State was chosen by ballot to take this part of the system under their consideration, and to endeavor to agree upon some report which should reconcile those States. To this committee also was referred the following proposition, which had been reported by the committee of detail, to wit: 'No Navigation Act shall be passed without the assent of two-thirds of the members present in each house;'—a proposition which the staple and commercial States were solicitous to retain, lest their commerce should be placed too much under the power of the Eastern States; but which these last States were as anxious to reject. This committee, of which also I had the honor to be a member, met, and took under their consideration the subjects committed to them.I found 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; and, after a very little time, the committee, by a great majority, agreed on a report, by which the general government was to be prohibited from preventing the importation of slaves for a limited time, and the restricted clause relative to Navigation Acts was to be omitted.
"This report was adopted by a majority of the Convention, but not without considerable opposition."
In the Virginia Convention, Mr. Madison said:—
"Mr. Chairman, I should conceive this clause to be impolitic, if it were one of those things which could be excluded without encountering greater evils. The Southern States would not haveentered into the Union of America, without the temporary permission of that trade. And if they were excluded from the Union, the consequences might be dreadful to them and to us. We are not in a worse situation than before. That traffic is prohibited by our laws, and we may continue the prohibition. The Union in general is not in a worse situation. Under the articles of confederation, it might be continued for ever; but, by this clause, an end may be put to it after twenty years. There is, therefore, an amelioration of our circumstances. A tax may be laid in the meantime."
In the North Carolina Convention, Mr. Spaight, one of the framers of the Constitution, said—
"That there was a contest between the Northern and Southern States; that the Southern States, whose principal support depended on the labor of slaves, would not consent to the desire of the Northern States, to exclude the importation of slaves absolutely; that South Carolina and Georgia insisted on this clause, as they were now in want of hands to cultivate their lands; that in the course of twenty years they would be fully supplied; that the trade would be abolished then, and that in the meantime some tax or duty might be laid on."
In the South Carolina Convention, Hon. Rawlins Lowndes said:—
"In the first place, what cause was there for jealousy of our importing negroes? Why confine us to twenty years, or rather why limit us at all? For his part, he thought this trade could be justified on the principles of religion, humanity, and justice; for certainly to translate a set of human beings from a bad country to a better was fulfilling every part of these principles. But they don't like our slaves, because they have none themselves."
Gen. Charles C. Pinckney said:—
"By this settlement we have secured an unlimited importation of negroes for twenty years; nor is it declared that the importation shall be then stopped: it may be continued; we have a security that the general government can never emancipate them."
Restoration of Fugitive Slaves.(Const. Art. 4, sec. 2.)
In the Philadelphia Convention, Aug. 28, 1787, Art. 14 was taken up for consideration. This article read, "Thecitizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Gen. Pinckney was not satisfied with it. He seemed to wish some provision should be included in favor of property in slaves.
Art. 15 was as follows:—
"Any person charged with treason, felony, or high misdemeanor, in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence."
This article being then taken up, the words "high misdemeanor" were struck out, and the words "other crime" inserted, in order to comprehend all proper cases; it being doubtful whether "high misdemeanor" had not a technical meaning too limited.
Mr. Butler and Mr. Pinckney moved to require "fugitive slaves and servants to be delivered up like criminals."
Mr. Wilson: This would oblige the executive of the State to do it at the public expense.
Mr. Sherman saw no more propriety in the public seizing and surrendering a slave or servant than a horse.
Mr. Butler withdrew his proposition, in order that some particular provision might be made, apart from this article.
Article 15, as amended, was then agreed to,nem. con.—Mad. Papers, pp. 1447-8.
The next day, Aug. 29, Mr. Butler, to accomplish his purpose, moved to insert, after Art. 15,—
"If any person, bound to service or labor in any of the United States, shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor."
Which was agreed to,nem. con.
After the phraseology had been somewhat altered, on Saturday, Sept. 15, 1787, in this clause (then Const. Art. 4, sec. 2) the term "legally" was struck out, and the words "under the laws thereof" inserted after the word "State,"in compliance with the wish of some one who thought the termlegalequivocal, and favoring the idea thatslaverywas legal in a moral view.
In the Virginia Convention, Mr. Madison said:—
"Another clause secures us that property which we now possess. At present, if any slave elopes to any of those States where slaves are free, he becomes emancipated, by their laws; for the laws of the States are uncharitable (!) to one another in this respect. But in this Constitution, '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.'This clause was expressly inserted to enable owners of slaves to reclaim them.This is a better security than any that now exists. No power is given to the general government to interpose with respect to the property in slaves now held by the States."
In the North Carolina Convention, Mr. Iredell begged leave to explain the reason of this clause:—
"In some of the Northern States, they have emancipated all their slaves. If any of our slaves," said he, "go there and remain there a certain time, they would, by the present laws, be entitled to their freedom, so that their masters could not get them again. This would be extremely prejudicial to the inhabitants of the Southern States; and,to prevent it, this clause is inserted in the Constitution. Though the wordslavebe not mentioned, this is the meaning of it. The Northern delegates, owing to their particular scruples on the subject of slavery, did not choose the wordslaveto be mentioned."
Gen. Pinckney, says Mr. Madison, was not satisfied with Art. 14, and "seemed to wish some provision should be included in favor of property in slaves." He thus, in the South Carolina Convention, expresses his satisfaction at this article of the Constitution:—
"We have obtained a right to recover our slaves, in whatever part of America they may take refuge, which is a right we had not before.In short, considering all circumstances, we have made thebest terms for the security of this species of property it was in our power to make. We would have made better if we could; but, on the whole, I do not think them bad."(!)
Suppression of Slave Insurrections.(Const. Art. 1, sec. 8; Art. 4, sec. 4.)
Luther Martin, in the speech before alluded to, used the following language:—
"It was further urged, that, by this system of government, every State is to be protected both from foreign invasion and from domestic insurrections: from this consideration, it was of the utmost importance it should have a power to restrain the importation of slaves, since, in proportion as the number of slaves are increased in any State, in the same proportion the State is weakened and exposed to foreign invasion or domestic insurrection, and by so much less will it be able to protect itself against either, and therefore will by so much the more want aid from, and be a burden to, the Union."
In the Virginia Convention, Mr. George Nicholas said:—
"Another worthy member says there is no power in the States to quell an insurrection of slaves. Have they it now? If they have, does the Constitution take it away? If it does, it must be in one of the three clauses which have been mentioned by the worthy member. The first clause gives the general government power to call them out when necessary. Does this take it away from the States? No; but it gives an additional security; for, besides the power in the State governments to use their own militia,it will be the duty of the general government to aid them with the strength of the Union, when called for. No part of this Constitution can show that this power is taken away."
Mr. Madison, respecting these clauses, says:—
"On application of the legislature or executive, as the case may be, the militia of the other States are to be called to suppress domestic insurrections. Does this bar the States from calling forth their own militia? No; butit gives them a supplementary security to suppress insurrections and domestic violence."
CHAPTER XIV.
THE CONSTITUTION ACCORDING TO THE PRACTICE OF THE GOVERNMENT.
Uniform practice under a law is one of the highest proofs of the meaning of that law.
Apportionment of Representatives.(Const. Art. 1, sec. 2.)
The Constitution (Art. 1, sec. 2, par. 3) provides that the enumeration of the people of the United States (upon which the apportionment of representatives and direct taxes was to be made) "shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct."
On the 1st of March, 1790, George Washington, who had been president of the Convention which framed the Constitution, approved "an Act providing for the enumeration of the inhabitants of the United States." The first Congress ever assembled, and the first President ever elected, under the Constitution, under the sanction of their respective oaths "to support the Constitution," by this Act expressed their deliberate judgment as to the true meaning of the people of the United States in adopting this section of the Constitution. What, in their judgment, was such meaning?
These extracts from the Act will suffice (Act 1790, chap. 29):—
Sec. 1: "Be it enacted, &c. That the marshals of the several districts of the United States shall be, and they are hereby, authorizedand required to cause the number of the inhabitants within their respective districts to be taken, omitting, in such enumeration, Indians not taxed, and distinguishing free persons, including those bound to service for a term of years, from all others; distinguishing also the sexes and colors of free persons, and the free males of sixteen years and upwards from those under that age: for effecting which purpose, the marshals shall have power to appoint as many assistants within their respective districts as to them shall appear necessary, assigning to each assistant a certain division of his district," &c.
These assistants were obliged to transmit to the marshals, returns in manner following:—
"The number of persons within my division, consisting of ——, appears in a schedule hereunto annexed, subscribed by me, this —— day of —— 179 .
A. B. Assistant to the Marshal of ——"
That is, the enumeration directed to be made, and upon the basis of which the constitutional apportionment of representatives and direct taxes was to be made, distinguished only betweenfree personsandslaves. Congress and the President, under the sanction of their oaths, united in the expression of their deliberate judgment, that the people of the United States, by the expression (Art. 1, sec. 2) "three-fifths of all other persons," intended "three-fifths of the slaves," because, in passing this Act, they declare that all other persons not free within the meaning of this section are slaves.
The second Congress, at its first session, passed "An Act for apportioning representatives among the several States, according to the first enumeration" (Stat. 1792, c. 23). The language of the statute is as follows:—
Sec. 1: "Be it enacted, &c. That from and after the third day of March, one thousand seven hundred and ninety-three, the House of Representatives shall be composed of members elected agreeably to a ratio of one member for every thirty-three thousand persons in each State, computed according to the rule prescribed by the Constitution, that is to say, within the State of New Hampshire, four," &c. &c.
That is, the second Congress, upon an enumeration distinguishing only freemen from slaves, undertake to apportion representatives among the States according to the rule laid down in the Constitution, viz. by adding to the whole number of free persons "three-fifths of the slaves."
This interpretation, by the first and second Congress, has never been varied from. In every census which has since been taken, the only distinction sanctioned has been between freemen and slaves; and, on every occasion of apportioning representatives, according the representative or federal number, such number has been invariably determined by adding to the whole number of free persons, three-fifths of the slaves.If this, the pro-slavery, interpretation of this section of the Constitution is not right, then, since March 3, 1793, there has not been a single House of Representatives constitutionally elected, or a single statute or resolve constitutionally passed!Who is ready to make this admission?
Permission of the African Slave-trade.(Const. Art. 1, sec. 9.)
On the 13th of May 1789, in Congress,—
"Mr. Parker (of Va.) moved to insert a clause in the bill, imposing a duty on the importation of slaves of ten dollars each person. Hewas sorry that the Constitution prevented Congress from prohibiting the importation altogether; he thought it a defect in that instrument that it allowed of such actions; it was contrary to the revolution principles, and ought not to be permitted; but, as he could not do all the good he desired, he was willing to do what lay in his power.
· · · · · ·
"Mr. Sherman (of Ct.) approved of the object of the motion; but he did not think this bill was proper to embrace the subject. He could not reconcile himself to the insertion of human beings, as an article of duty, among goods, wares, and merchandise. He hoped it would be withdrawn for the present, and taken up hereafter as an independent subject.
· · · · · ·
"Mr. Schureman (of N. J.) hoped the gentleman would withdraw his motion, because the present was not the time or place for introducing the business; he thought it had better be brought forward in the House, as a distinct proposition.
· · · · · ·
"Mr. Madison (of Va.): I cannot concur with gentlemen who think the present an improper time or place to enter into a discussion of the proposed motion. If it is taken up in a separate view, we shall do the same thing, at a greater expense of time....
"I conceive the Constitution, in this particular, was formed in order that the government, whilst it was restrained from laying a total prohibition, might be able to give some testimony of the sense of America with respect to the African trade. We have liberty to impose a tax or duty upon the importation of such persons as any of the States now existing shall think proper to admit; and this liberty was granted, I presume, upon two considerations: the first was, that, until the time arrived when they might abolish the importation of slaves, they might have an opportunity of evidencing their sentiments on the policy and humanity of such a trade; the other was, that they might be taxed in due proportion with other articles imported; for, if the possessor will consider them as property, of course they are of value, and ought to be paid for."
After a very considerable discussion, in which this section of the Constitution was referred to by various members, and the constitutionality of Mr. Parker's motion admitted, with the advice of Mr. Madison his colleague, Mr. Parker consented to withdraw his motion.
In 1794, "An Act to prohibit the carrying on the slave-trade from the United States to any foreign place or country" was passed (Stat. 1794, c. 11). In 1800, an Act in addition to the last was passed (Stat. 1800, c. 51). That both these laws were framed with reference to this section of the Constitution is apparent, because the latter Act expressly refersto it. Sec. 6 reads thus, "That nothing in this Act contained shall be construed to authorize the bringing into either of the United States any person or persons, the importation of whom is, by the existing laws of such State, prohibited." In 1803 (Stat. 1803, c. 63) was passed "An Act to prevent the importation of certain persons into certain States, where, by the laws thereof, their admission is prohibited."
Sec. 1: "Be it enacted, &c. That, from and after the first day of April next, no master or captain of any ship or vessel, or any other person, shall import or bring, or cause to be imported or brought, any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States, or seamen, natives of countries beyond the Cape of Good Hope, into any port or place of the United States, which port or place shall be situated in any State which by law has prohibited, or shall prohibit, the admission or importation of such negro, mulatto, or other person of color," &c. &c.
This Act also is most manifestly framed upon this section of the Constitution. It renders illegal the importation of any negro, mulatto, or person of color, into States prohibiting such importation, unless such negro, &c. is a native, citizen, or registered seaman of the United States, or native of countries beyond the Cape of Good Hope; that is, it renders illegal the importation of African negroes into any State whose laws prohibit such importation. And, as no African negro has yet been imported as a free laborer, this Act was directed against the African slave-trade.
And, not to multiply proof, the importation of persons is not to be prohibited by Congress prior to 1808. On the 2d day of March, 1807, President Jefferson approved (Stat. 1807, c. 77) "An Act to prohibit the importation ofslavesinto any port or place within the jurisdiction of the United States, from and after thefirst day of January, in the year of our Lordone thousand eight hundred and eight." That is, at the very earliest day allowed by Const. Art. 1, sec. 9, for the passage by Congress of an Act prohibiting the importation of persons, a law is passed totally prohibiting theimportation of slaves.
Restoration of Fugitive Slaves.(Const. Art. 4, sec. 2.)
On the 12th day of February, 1793 (Stat. 1793, chap. 7), there was approved "An Act respecting fugitives from justice, and persons escaping from the service of their masters." This is the law which, for over half a century, has prescribed the modes in which a runaway slave may be retaken. It is what is now called "the infamous law of '93." Thousands of runaway slaves have owed their return to their happy condition to the beneficent operation of this law, obviously framed, as it is, with an eye to this constitutional provision.
Sec. 3 provides that,—
"When a person held to labor in any of the United States, or in either of the territories on the north-west or south of the river Ohio, under the laws thereof, shall escape into any other of the said States or territory, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the State, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made; and, upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit, taken before and certified by a magistrate of any such State or territory, that the person so seized or arrested doth, under the laws of the State or territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labor to the State or territory from which he or she fled."
Suppression of Slave Insurrections.(Const. Art. 1, sec. 8; Art. 4, sec. 4.)
"An Act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," was approved May 2, 1792 (Act Const. 1792, chap. 28). Section first provides that, "In case of aninsurrection in any Stateagainst the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State, or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States as may be applied for, or as he may judge sufficient to suppress such insurrection." Precisely the same language is made use of in Stat. 1795, c. 101. By Act approved March 3, 1807 (Stat. 1807, c. 94), the President is authorized "inallcases of insurrection," "when it is lawful for him to call forth the militia for the purpose of suppressing the same," "to employ for the same purpose such part of the land or naval force of the United States as shall be judged necessary."
That these laws have been held to include an insurrection of slaves is indisputable. On receipt of the intelligence of Nat. Turner's insurrection in Southampton, Va., Col. House, then commanding at Fortress Monroe, set out with three companies of United States troops, for the purpose of suppressing the revolt. He was reinforced by a detachment from the United States ships Warren and Natchez, amounting in all to about three hundred men. Withourtroops andourofficers we have actually aided the slaveholder in holding his fellow-man in slavery! We have actually done what our fathers engaged in the Constitution that we should do, namely, aid with the national strength in keeping the slaves in subjection!
CHAPTER XV.
THE CONSTITUTION ACCORDING TO THE EXPOSITION OF ITS FINAL INTERPRETER.
"The judicial department of the United States is, in the last resort, the final expositor of the Constitution as to all questions of a judicial nature. Were there no power to interpret, pronounce, and execute the law, the government would either perish through its own imbecility, as was the case with the articles of confederation, or other powers must be assumed by the legislative body, to the destruction of liberty."—Chancellor Kent.
The people of the United States, in adopting the Constitution, madeonestandard,onefundamental law, andonly one. They gave to the government of the United States certain powers. They restricted it as to others. They placed certain prohibitions on the States. The Constitution was to be the one fundamental law of the land, to which all, as well States as people, should submit. Art. 6, sec. 2, provides that the "Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall bethe supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding."
Who now is to tell us what this one standard is, to which all must submit, and which is thus to override all State Constitutions and all State laws? Is it the province of each individual to do it? Then we may have at this moment seventeen million different interpretations, and hence as many different Constitutions, each of which, however, is the supreme law of the land! Are the executive or judicial departments of the States the proper expounders? Then,at this moment, we may have only thirty different interpretations, twenty-nine of which must be wrong, because the supreme law can be but one.
In order, therefore, that the end of the Constitution may be accomplished, that it may really be the supreme law of the land, it must have provided a way in which its only true meaning may be ascertained and definitively settled. Unless it has provided a final interpreter of its meaning, it is the merest folly to style it the supreme law of the land, or to call on us to obey its requirement. Is the Constitution thus deficient? Does it demand uniformity, and at the same time deny the use of those means which are absolutely necessary to produce such uniformity? Does it present a variable, ever-changing standard of duty, and yet demand complete uniformity in practice?
There are three departments in the Government, namely, the Executive, the Legislative, and the Judicial. The first two of these are each, to some extent, supreme in its own sphere; and its acts are incapable of revision elsewhere. "Thus, in measures exclusively of a political, legislative, or executive character, it is plain, that, as the supreme authority as to these questions belongs to the legislative and executive departments, they cannot be re-examined elsewhere. Thus, Congress having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of re-examination in any other tribunal. So, the power to make treaties being confided to the President and Senate, when a treaty is properly ratified, it becomes the law of the land, and no other tribunal can gainsay its stipulations. Yet cases may readily be imagined, in which a tax may be laid, or a treaty made, upon motions and grounds wholly beside the intention of the Constitution. The remedy, however, in such cases is solely by an appeal to the people at the elections, or by the salutary power of amendment provided by the Constitution itself.
"But, where the question is of a different nature, and capable of judicial inquiry and decision, there it admits of avery different consideration. The decision then made, whether in favor or against the constitutionality of the Act, by the State or by national authority, by the legislature or by the executive, being capable in its own nature of being brought to the test of the Constitution, is subject to judicial revision. It is in such cases, as we conceive, that there is a final and common arbiter provided by the Constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the courts of the Union" (Story, Comm. Const. sec. 374, 375); for the Constitution declares, Art. 3, sec. 2, that "the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority," &c. And Art. 3, sec. 1: "The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish."
These constitutional provisions are clear. The Constitution and laws and treaties of the United States are declared to be the supreme law of the land. To expound what the law is, is a judicial act. The judicial power extends to all cases arising under the Constitution, laws, and treaties of the United States. It therefore extends to the exposition of the Constitution, laws, and treaties, when the case before the court properly calls for such exposition. This judicial power, and consequently this power of exposition, it is declared, shall be vested in one supreme court, &c. Most obviously, the exposition given by this one supreme court cannot be overruled by any other constitutional power; else the court is not supreme, else the Constitution is nullified. The decision of the supreme court is the decision of theonly constitutionally authorized expounder of the meaning of the Constitution; and such exposition, to be supreme, must be final.
What, then, has this final interpreter declared the meaning of these clauses of the Constitution to be?
Apportionment of Representatives.(Const. Art. 1, sec. 2.)
On the 5th of June, 1794 (Stat. 1794, c. 45), was approved an Act of Congress, "laying duties upon carriages for the conveyance of persons." The duty was uniform throughout the States. One Hylton, in Virginia, refused to pay the duty; alleging that the Act was unconstitutional, because the tax was a direct tax within the meaning of the Constitution, and therefore should have been apportioned among the States according to their federal numbers. He was sued by the United States, and finally the case came before the supreme court of the United States for decision. The following extracts are taken from the opinion of Justice Paterson (Hyltonversusthe United States, 3 Dallas's Reports, p. 177; 1796):—
"I never entertained a doubt that the principal, I will not say the only, objects that the framers of the Constitution contemplated, as falling within the rule of apportionment, were a capitation-tax and a tax on land. Local considerations, and the particular circumstances and relative situation of the States, naturally lead to this view of the subject.The provision was made in favor of the Southern States.They possessed a large number ofslaves; they had extensive tracts of territory, thinly settled, and not very productive. A majority of the States had but fewslaves; and several of them, a limited territory, well-settled, and in a high state of cultivation. The Southern States, if no provision had been introduced in the Constitution, would have been wholly at the mercy of the other States.Congress, in such case, might tax slaves at discretion or arbitrarily, and land in every part of the Union. After the same rate or measure, so much a head in the first instance, and so much an acre in the second.To guard them against imposition in these particulars was the reason of introducing the clause in the Constitutionwhich directs that representatives and direct taxes shall be apportioned among the States, according to their respective numbers."
Page 178: "The rule of apportionment is of this nature: it is radically wrong; it cannot be supported by any solid reasoning. Why should slaves, who are a species of property, be represented more than any other property? The rule, therefore, ought not to be extended by construction."
Permission of the African Slave-trade.(Const. Art. 1, sec. 9.)
In the great case of Gibbonsvs.Ogden, 9 Wheaton's Reports, pp. 206 and 207 (1824), Chief Justice Marshall, delivering the opinion of the supreme court, makes use of the following language:—
"The Act passed in 1803 (Act Const. 1803, c. 63), prohibiting the importation of slaves into any State which shall itself prohibit their importation, implies, it is said, an admission that the States possess the power to exclude or admit them; from which it is inferred, that they possess the same power with respect to other articles.
"If this inference were correct; if this power were exercised, not under any particular clause in the Constitution, but in virtue of a general right over the subject of commerce to exist as long as the Constitution itself, it might now be exercised. Any State might now import African slaves into its own territory. But it is obvious that the power of the States over this subject, previous to the year 1808, constitutes an exception to the power of Congress to regulate commerce; and the exception is expressed in such words as to manifest clearly the intention to continue the pre-existing right of the States to admit or exclude for a limited period. The words are, 'The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to 1808.' The whole object of the exception is to preserve the power to those States which might be disposed to exercise it, and its language seems to the court to convey this idea unequivocally."
See also pp. 216, 217.
Restoration of Fugitive Slaves.(Const. Art. 4, sec. 2.)
The following extracts are taken from the opinion of the supreme court in the well-known case, Priggvs.the Commonwealth of Pennsylvania (16 Pet. Rep. 609, &c.). Judge Story delivered the opinion:—
"Historically, it is well known, that the object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves, as property, inevery State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slaveholding States; and, indeed, was so vital to the preservation of their domestic interests and institutions, that it cannot be doubted that it constituted a fundamental article, without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing, or abolishing, the rights of the owners of slaves."
Page 612: "If the Constitution had not contained this clause, every non-slaveholding State in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters;—a course which would have created the most bitter animosities, and engendered perpetual strife, between the different States. The clause was, therefore, of the last importance to the safety and security of the Southern States, and could not have been surrendered by them without endangering their whole property in slaves. The clause was accordingly adopted into the Constitution by the unanimous consent of the framers of it;—a proof at once of its intrinsic and practical necessity."
Page 613: "Upon this ground, we have not the slightest hesitation in holding, that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every State in the Union, to seize and recapture his slave, whenever he can do it without any breach of the peace or any illegal violence. In this sense, and to this extent, this clause of the Constitution may properly be said to execute itself, and to require no aid from legislation, state or national."
Page 625: "Upon these grounds, we are of opinion, that the Act of Pennsylvania upon which this indictment is founded is unconstitutional and void. It purports to punish, as a public offence against that State, the very act of seizing and removing a slave by his master, which the Constitution of the United States was designed to justify and uphold."
Suppression of Slave Insurrections.(Const. Art. 1, sec. 8; Art. 4, sec. 4.)
We are not aware of any decision of the supreme court upon the meaning of these clauses; but it seems difficult to conceive, that they would hold that the word "insurrections" did not include all insurrections.
Such is the Constitution according to the plain, obvious, and common meaning of its terms; such it was intended to be made by its framers; such has been the interpretation constantly followed in the practice of the government, from the time of its adoption until now; and such it is according to the decision of the final interpreter of its meaning. As reasonable men, seeking the truth, we cannot say that there is the slightest doubt whatever on the subject.The Constitution very materially supports slavery!
CHAPTER XVI.
NO UNION WITH SLAVEHOLDERS.
"We will extend to the slaveholder all the courtesy he will allow. If he is hungry, we will feed him; if he is in want, both hands shall be stretched out for his aid. We will give him full credit for all the good that he does, and our deep sympathy in all the temptations under whose strength he falls. But to help him in his sin, to remain partners with him in the slave-trade, is more than he has a right to ask."—Wendell Phillips.
No wrong action can be rightfully done. No wrong can be rightfully supported. We can neither rightfully hold slaves nor support others in slaveholding, because, as we have seen, slaveholding is under all circumstances wrong. Some of the provisions of the Constitution, as we have seen, were expressly designed for the purpose of supporting slavery, and for over half a century have very materially supported it. Consequently, these provisions cannot be rightfully obeyed or supported. It is wrong to offer a bounty on slaveholding,—to give the oppressor power and influence, in proportion as he tramples on the rights of his fellow-man; it is wrong to return, or aid in returning, a fugitive slave; it is wrong to aid in keeping the slave in his fetters. These things are wrong, and not all the Constitutions and laws of the universe can make them right. We cannot, therefore, rightfully obey the pro-slavery clauses of the Constitution.
If we cannot rightfully obey them ourselves, we cannot rightfully, voluntarily support others in obeying them. If it is wrong for me to return a fugitive slave, it is wrong for me voluntarily to aid or support another man in doing the act. If it is wrong for me to commit murder, it is no less wrongfor me to hand the pistol to the assassin. Whatever it is wrong for us to do ourselves, it is wrong for us voluntarily to aid or support others in doing. Consequently, it is wrong for us voluntarily to aid or support others in obeying the pro-slavery requirements of the Constitution.
If we cannot rightfully obey them, it is wrong for us to promise such obedience. If it is wrong for us voluntarily to support others in their obedience, it is wrong for us to promise any such support. If it is wrong for us to return a fugitive slave, it is wrong for us to promise to return one. If it is wrong for us voluntarily to aid the slave-hunter, it is wrong for us to promise such aid. Whatever it is wrong for us to do or aid others in doing, it is wrong for us to promise to do or aid others in doing. Consequently, it is wrong for us to promise to support these constitutional provisions. We cannot, therefore, accept any office, either state or national, which renders it necessary for us to support these clauses, or to promise to support them. We cannot, therefore, rightfully hold any executive or judicial office, either state or national, or become a member of any State legislature or of Congress; for all these officers are obliged solemnly to swear or affirm that they will "support the Constitution;" and to support the Constitution is to support all of its clauses, as well those which favor slavery as those which do not. If we take this oath, meaning to keep it, we do wrong. If we take it, meaning not to keep it, we add to our wrong, perjury; for we mentally break our oath at the very instant it passes our lips.
Some good men seek to avoid the difficulty by saying, "When I swear to support the Constitution, I mean I will support the good clauses in it, and disobey the bad, and submit to the penalty for such disobedience." But such a course is not a compliance with the terms of the oath. You have sworn "to support the Constitution;" that is, the whole Constitution,—all its clauses,—the bad as sacredly as the good. Your oath is not in the alternative, "I will support the clause requiring the return of fugitive slaves, or pay five hundred dollars for every slave I aid in escaping;" but simply,without any qualification, "I will support the side of the oppressor." If you aid the fugitive slave to escape from his master, you do not support the latter in retaking his property, merely by paying the legal penalty for not giving such support. You would not support a bad law, and yet you say your oath to support it is not broken, because you submit to the penalty for not supporting it. The thief does not support the law of private property, merely by submitting to the legal punishment of his crime. To support is to be active: to submit is to be passive. You swear to be active, and you do not comply with your oath by being merely passive. You have sworn actively to support the recapture of slaves. You break your oath, if you refuse to do this, or do any thing less or different from this.
Others think to find a good excuse for taking the oath, by adopting another alternative, equally unauthorized. "We will support the Constitution," say they, "until we are called on to act under any of its bad clauses; and then we will resign our office, and refuse obedience." Doubtless, honor requires you to resign, if you cannot comply with the terms of your oath; but what right have you to adopt or imagine an alternative in your oath where the law has made none,—where the officer administering it will admit of none? Who does not see the wide difference between an honest oath to support the return of fugitive slaves, and an oath to support such return, but with a firm resolve on your part to refuse such support when called on for it, and to resign? What right have you to take an oath which you have previously resolved not to keep, when called on to comply with? You admit that a bad clause cannot be rightfully supported, else why do you not support it? You admit that the oath obliges you to support the bad clauses of the Constitution as well as the good; else why do you resign, if refusal to support the bad clauses is consistent with your oath? You openly avow, therefore, that, at the very moment you swear to support a clause, you determine never to support it. You swear, and determine not to keep your oath! Such a course seems to us inconsistent with the plainest rules of honesty. We haveno right to promise to do wrong, even though we have resolved to do right when the time for action shall arrive.
Others say, "We swear to support the Constitution as we understand it, and we consider it an anti-slavery instrument." In other words, you swear to support an interpretation which is contrary to the plain, obvious, and common meaning of the instrument; contrary to the interpretation put upon it by its framers; contrary to that followed by all the executive and legislative departments of the government, from its first establishment until now; and contrary to that which has been adjudged to be its true interpretation by the final arbiter of its meaning. Of course, you intend to support the true meaning of the Constitution. Do you really believe that the people of the United States did not mean by their words what those words then commonly meant? Do you really doubt the historical fact of the humiliating compromise between the delegates from the Southern and Eastern States in the Philadelphia Convention, by which the latter undertook to barter the moral sense of their constituents for what was supposed to be their interest? Do you really believe that the people have suffered their servants to go on in ignorance of the true meaning for sixty years? In fact, do you venture to affirm, or do you in perfect sincerity and truthfulness believe, that your interpretation has ever at any time been considered right by the people of the United States, or by any considerable number of them? You deceive yourself with words! What is the Constitution? Not the meaning which you or I, or any third person, may please to put upon it; but that meaning, and that meaning only, which consists with its being, what it declares itself to be, the supreme law of the land. Until, therefore, you can show that the Constitution may properly receive as many different interpretations as there are oaths to support it, and still be in fact the supreme law, the one, single, definite rule for all, States as well as people, you have no right to say, "I will support the pro-slavery clauses as I understand them." To support them in any other sense than that which is affixed to them,as the supreme law of the land, is merely to evade the true meaning of your oath.
Others say, "We took the oath before we had any of our present scruples. We would not take the oath now; but, nevertheless, we shall continue in office, and disregard our oath." This excuse seems to us very objectionable. How can you reap the honorary or pecuniary advantages of your office, and honestly refuse compliance with your part of the bargain? When you took office, you were really told, that, if you would swear to support the return of fugitive slaves, &c. you should enjoy these honors and these profits. The conscientious man, who, in striving to better himself, not his condition, discovers afterwards that he cannot rightfully aid, or promise to aid, the slaveholder in retaking his slaves, will not think of claiming the reward which was offered to him solely because he swore to give such aid. He will make haste to resign honors and rewards which he feels can be retained only at the price of his own degradation.
If we cannot rightfully hold any office, state or national, which requires of us a promise to support the Constitution, it is wrong to place, or voluntarily aid in placing, any other person in such office; for, by so doing, we ask him to do wrong. If we vote for Horace Mann, by this act alone we say to him, as distinctly as if the words passed our lips,—"We wish to elect you as representative to Congress. If chosen, we expect and ask you to qualify yourself to act as representative, by swearing to give slavery all constitutional support." Merely by voting for him, we ask him to do wrong, hoping that good may come, almost knowing that good will come! So little faith have we in the final triumph of right and justice, by pursuing only right and just ways! Of so little consequence do we consider it, that the earnest advocate of freedom should commence his holy work by promising very materially to strengthen slavery! But a short time has elapsed since we read one of his most eloquent rebukes of slavery. Our heart beat quickly as we read his earnest words. But if, in the midst of his address, some slaveholder had turned and asked him, "How happens it, sir,that you, who are so very earnest and disinterested in behalf of the rights of the slave, have been willing to swear to support this terrible wrong, to any extent or for any time?" And what answer could be returned? The eloquent tongue would be palsied! Surely that man who has solemnly called God to witness that he will support the oppressor, cannot fail, at some time or another, to feel himself to be unworthy to plead the cause of freedom.
Finally, some say, "This reasoning leads to non-resistance. You disregard the fact that all human governments must contain a greater or less amount of evil; and consequently, if you are ever to support any government in all its requirements, you must support evil." Very true is it that human governments and laws fall short of our relative standard of right, and always of absolute right. What is our duty? Clearly, as moral beings, to support the right, and refuse to support the wrong; as peaceful citizens, to support the right, and submit to the penalty of disobeying the wrong. Nothing more than this is required of us. Nothing less than this is our duty. We are not put into the world, blindly to support all existing governmental wrongs, until they can be constitutionally abolished. We are to be true to ourselves as moral beings. If we can be true to our own souls and support the government, we may give such support,—not otherwise! Right and wrong are not creatures of agreement and law. Neither the Philadelphia Convention that framed the Constitution, nor the State Conventions that adopted it, had power to make wrong in the slightest degree right, or alter at all the moral character of slaveholding. Right is right, the Revised Statutes to the contrary notwithstanding. Wrong is wrong, the Constitution to the contrary notwithstanding. We say, therefore, we will obey the good requirements of the Constitution, and peacefully submit to the penalty of disobeying the bad. This is all that government has a right to ask of us. Institutions were made for man, not man for them. Constitutions are the work of man, and man is to be reverenced before his works. We see no inconsistency or impropriety in supporting the system of free-tradebetween the States, and refusing to support the domestic slave-trade; in supporting the patent laws, and refusing to aid in returning a runaway slave. We are good-government men, not no-government men. All governments are partly good. All we are willing to support in part: we will actively support the Constitution and laws, so far as conscience permits; we will peacefully submit to legal exaction for disobeying the rest.
Our purpose is accomplished. We have shown that we are politically united with the South in the support of slavery. We have shown that we should constantly bear upon our lips, and in our lives, the motto, "No union with slaveholders, whereby we are obliged to countenance or support slavery." We desire to see a union among the States, but not a slaveholding union! A union of freemen, and Free States for the sake of freedom, no one would more readily support than we. But a union like ours, of freemen and slaveholders, of Free States and Slave States, for the sake in part of securing property in slaves, is demoralizing (how demoralizing has it been!) to both parties, and should receive, as it doubtless at no distant day will receive, the condemnation of the wise and good. In the meantime, it ought not, and it will not, receive either our respect or our voluntary support.
FOOTNOTES: