The Anti-Slavery Examiner, Omnibus · Chapter 38Part 38
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John Jay, while New-York was yet a slave State, and himself in law a slaveholder, said in a letter from Spain, in 1786, "An excellent law might be made out of the Pennsylvania one, for the gradual abolition of slavery. Were I in your legislature, I would present a bill for the purpose, drawn up with great care, and I would never cease moving it till it became a law, or I ceased to be a member."
Daniel D. Tompkins, in a message to the Legislature of New-York, January 8, 1812, said: "To devise the means for the gradual and ultimate extermination from amongst us of slavery, is work worthy the representatives of a polished and enlightened nation."
The Virginia Legislature asserted this power in 1832. At the close of a month's debate, the following proceedings were had. I extract from an editorial article of the Richmond Whig, of January 26, 1832.
"The report of the Select Committee, adverse to legislation on the subject of Abolition, was in these words: Resolved, as the opinion of this Committee, that it is INEXPEDIENT FOR THE PRESENT, to make any legislative enactments for the abolition of Slavery." This Report Mr. Preston moved to reverse, and thus to declare that it was expedient, now to make Legislative enactments for the abolition of slavery. This was meeting the question in its strongest form. It demanded action, and immediate action. On this proposition the vote was 58 to 73. Many of the most decided friends of abolition voted against the amendment; because they thought public opinion not sufficiently prepared for it, and that it might prejudice the cause to move too rapidly. The vote on Mr. Witcher's motion to postpone the whole subject indefinitely, indicates the true state of opinion in the House.—That was the test question, and was so intended and proclaimed by its mover. That motion was negatived, 71 to 60; showing a majority of 11, who by that vote, declared their belief that "at the proper time, and in the proper mode, Virginia ought to commence a system of gradual abolition."
8. The Congress of the United States have asserted this power. The ordinance of '87, declaring that there should be "neither slavery nor involuntary servitude," in the North Western territory, abolished the slavery then existing there. The Supreme Court of Mississippi, in its decision in the case of Harvey vs. Decker, Walker's Mi. Reps. 36, declared that the ordinance emancipated the slaves then held there. In this decision the question is argued ably and at great length. The Supreme Court of Louisiana made the same decision in the case of Forsyth vs. Nash, 4 Martin's La. Reps 385. The same doctrine was laid down by Judge Porter, (late United States Senator from Louisiana,) in his decision at the March term of the La. Supreme Court, 1830, in the case of Merry vs. Chexnaider, 20 Martin's Reps. 699.
That the ordinance abolished the slavery then existing, is also shown by the fact, that persons holding slaves in the territory petitioned for the repeal of the article abolishing slavery, assigning that as a reason. "The petition of the citizens of Randolph and St. Clair counties in the Illinois country, stating that they were in possession of slaves, and praying the repeal of that act (the 6th article of the ordinance of '87) and the passage of a law legalizing slavery there." [Am. State papers, Public Lands, v. 1. p. 69,] Congress passed this ordinance before the United States Constitution was adopted, when it derived all its authority from the articles of Confederation, which conferred powers of legislation far more restricted than those conferred on Congress over the District and Territories by the United States Constitution. Now, we ask, how does the Constitution abridge the powers which Congress possessed under the articles of confederation?
The abolition of the slave trade by Congress, in 1808, is another illustration of the competency of legislative power to abolish slavery. The African slave trade has become such a mere technic, in common parlance, that the fact of its being proper slavery is overlooked. The buying and selling, the transportation, and the horrors of the middle passage, were mere incidents of the slavery in which the victims were held. Let things be called by their own names. When Congress abolished the African slave trade, it abolished SLAVERY—supreme slavery—power frantic with license, trampling a whole hemisphere scathed with its fires, and running down with blood. True, Congress did not, in the abolition of the slave trade, abolish all the slavery within its jurisdiction, but it did abolish all the slavery in one part of its jurisdiction. What has rifled it of power to abolish slavery in another part of its jurisdiction, especially in that part where it has "exclusive legislation in all cases whatsoever?"
9. The Constitution of the United States recognizes this power by the most conclusive implication. In Art. 1, sec. 3, clause 1, it prohibits the abolition of the slave trade previous to 1808: thus implying the power of Congress to do it at once, but for the restriction; and its power to do it unconditionally, when that restriction ceased. Again: In Art. 4, sec. 2, "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 said service or labor." This clause was inserted, as all admit, to prevent the runaway slave from being emancipated by the laws of the free states. If these laws had no power to emancipate, why this constitutional guard to prevent it?
The insertion of the clause, was the testimony of the eminent jurists that framed the Constitution, to the existence of the power, and their public proclamation, that the abolition of slavery was within the appropriate sphere of legislation. The right of the owner to that which is rightfully property, is founded on a principle of universal law, and is recognised and protected by all civilized nations; property in slaves is, by general consent, an exception; hence slaveholders insisted upon the insertion of this clause in the United States Constitution that they might secure by an express provision, that from which protection is withheld, by the acknowledged principles of universal law.A By demanding this provision, slaveholders consented that their slaves should not be recognised as property by the United States Constitution, and hence they found their claim, on the fact of their being "persons, and held to service."
A: The fact, that under the articles of Confederation, slaveholders, whose slaves had escaped into free states, had no legal power to force them back,—that now they have no power to recover, by process of law, their slaves who escape to Canada, the South American States, or to Europe—the case already cited in which the Supreme Court of Louisiana decided, that residence "for one moment," under the laws of France emancipated an American slave—the case of Fulton, vs. Lewis, 3 Har. and John's Reps., 56, where the slave of a St. Domingo slaveholder, who brought him to Maryland in '93, was pronounced free by the Maryland Court of Appeals—these, with other facts and cases "too numerous to mention," are illustrations of the acknowledged truth here asserted, that by the consent of the civilized world, and on the principles of universal law, slaves are not "property," but self-proprietors, and that whenever held as property under law, it is only by positive legislative acts, forcibly setting aside the law of nature, the common law, and the principles of universal justice and right between man and man,—principles paramount to all law, and from which alone law derives its intrinsic authoritative sanction.
But waiving all concessions, whether of constitutions, laws, judicial decisions, or common consent, I take the position that the power of Congress to abolish slavery in the District, follows from the fact, that as the sole legislature there, it has unquestionable power to adopt the Common Law, as the legal system within its exclusive jurisdiction. This has been done, with certain restrictions, in most of the States, either by legislative acts or by constitutional implication. THE COMMON LAW KNOWS NO SLAVES. Its principles annihilate slavery wherever they touch it. It is a universal, unconditional, abolition act. Wherever slavery is a legal system, it is so only by statute law, and in violation of common law. The declaration of Lord Chief Justice Holt, that "by the common law, no man can have property in another," is an acknowledged axiom, and based upon the well known common law definition of property. "The subjects of dominion or property are things, as contra-distinguished from persons." Let Congress adopt the common law in the District of Columbia, and slavery there is at once abolished. Congress may well be at home in common law legislation, for the common law is the grand element of the United States Constitution. All its fundamental provisions are instinct with its spirit; and its existence, principles and paramount authority, are presupposed and assumed throughout the whole. The preamble of the Constitution plants the standard of the Common Law immovably in its foreground. "We, the people of the United States, in order to ESTABLISH JUSTICE, &c., do ordain and establish this Constitution;" thus proclaiming devotion to justice, as the controlling motive in the organization of the Government, and its secure establishment the chief object of its aims. By this most solemn recognition, the common law, that grand legal embodiment of "justice" and fundamental right was made the groundwork of the Constitution, and intrenched behind its strongest munitions. The second clause of Sec. 9, Art. 1; Sec. 4, Art. 2, and the last clause of Sec. 2, Art. 3, with Articles 7, 8, 9, and 13 of the Amendments, are also express recognitions of the common law as the presiding Genius of the Constitution.
By adopting the common law within its exclusive jurisdiction Congress would carry out the principles of our glorious Declaration, and follow the highest precedents in our national history and jurisprudence. It is a political maxim as old as civil legislation, that laws should be strictly homogeneous with the principles of the government whose will they express, embodying and carrying them out—being indeed the principles themselves, in preceptive form—representatives alike of the nature and the power of the Government—standing illustrations of its genius and spirit, while they proclaim and enforce its authority. Who needs be told that slavery is in antagonism to the principles of the Declaration, and the spirit of the Constitution, and that these and the principles of the common law gravitate toward each other with irrepressible affinities, and mingle into one? The common law came hither with our pilgrim fathers; it was their birthright, their panoply, their glory, and their song of rejoicing in the house of their pilgrimage. It covered them in the day of their calamity, and their trust was under the shadow of its wings. From the first settlement of the country, the genius of our institutions and our national spirit have claimed it as a common possession, and exulted in it with a common pride. A century ago, Governor Pownall, one of the most eminent constitutional jurists of colonial times, said of the common law, "In all the colonies the common law is received as the foundation and main body of their law." In the Declaration of Rights, made by the Continental Congress at its first session in '74, there was the following resolution: "Resolved, That the respective colonies are entitled to the common law of England, and especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law." Soon after the organization of the general government, Chief Justice Ellsworth, in one of his decisions on the bench of the United States Supreme Court, said: "The common law of this country remains the same as it was before the revolution." Chief Justice Marshall, in his decision in the case of Livingston vs. Jefferson, said: "When our ancestors migrated to America, they brought with them the common law of their native country, so far as it was applicable to their new situation and I do not conceive that the revolution in any degree changed the relations of man to man, or the law which regulates them. In breaking our political connection with the parent state, we did not break our connection with each other." [SeeHall's Law Journal, new series.] Mr. Duponceau, in his "Dissertation on the Jurisdiction of Courts in the United States," says, "I consider the common law of England the jus commune of the United States. I think I can lay it down as a correct principle, that the common law of England, as it was at the time of the declaration of Independence, still continues to be the national law of this country, so far as it is applicable to our present state, and subject to the modifications it has received here in the course of nearly half a century." Chief Justice Taylor of North Carolina, in his decision in the case of the State vs. Reed, in 1823, Hawkes' N.C. Reps. 454, says, "a law of paramount obligation to the statute was violated by the offence—COMMON LAW, founded upon the law of nature, and confirmed by revelation." The legislation of the United States abounds in recognitions of the principles of the common law, asserting their paramount binding power. Sparing details, of which our national state papers are full, we illustrate by a single instance. It was made a condition of the admission of Louisiana into the Union, that the right of trial by jury should be secured to all her citizens,—the United States government thus employing its power to enlarge the jurisdiction of the common law in this its great representative.
Having shown that the abolition of slavery is within the competency of the law-making power, when unrestricted by constitutional provisions, and that the legislation of Congress over the District is thus unrestricted, its power to abolish slavery there is established.
Besides this general ground, the power of Congress to abolish slavery in the District may be based upon another equally tenable. We argue it from the fact, that slavery exists there now by an act of Congress. In the act of 16th July, 1790, Congress accepted portions of territory offered by the states of Maryland and Virginia, and enacted that the laws, as they then were, should continue in force, "until Congress shall otherwise by law provide;" thus making the slave codes of Maryland and Virginia its own. Under these laws, adopted by Congress, and in effect re-enacted and made laws of the District, the slaves there are now held.
Is Congress so impotent in its own "exclusive jurisdiction" that it cannot "otherwise by law provide?" If it can say, what shall be considered property, it can say what shall not be considered property. Suppose a legislature enacts, that marriage contracts shall be mere bills of sale, making a husband the proprietor of his wife, as his bona fide property; and suppose husbands should herd their wives in droves for the market as beasts of burden, or for the brothel as victims of lust, and then prate about their inviolable legal property, and deny the power of the legislature, which stamped them property, to undo its own wrong, and secure to wives by law the rights of human beings. Would such cant about "legal rights" be heeded where reason and justice held sway, and where law, based upon fundamental morality, received homage? If a frantic legislature pronounces woman a chattel, has it no power, with returning reason, to take back the blasphemy? Is the impious edict irrepealable? Be it, that with legal forms it has stamped wives "wares." Can no legislation blot out the brand? Must the handwriting of Deity on human nature be expunged for ever? Has law no power to stay the erasing pen, and tear off the scrawled label that covers up the IMAGE OF GOD? We now proceed to show that
1. It has been assumed by Congress itself. The following record stands on the journals of the House of Representatives for 1804, p. 225: "On motion made and seconded that the House do come to the following resolution: 'Resolved, That from and after the 4th day of July, 1805, all blacks and people of color that shall be born within the District of Columbia, or whose mothers shall be the property of any person residing within said District, shall be free, the males at the age of ----, and the females at the age of ----. The main question being taken that the House do agree to said motion as originally proposed, it was negatived by a majority of 46.'" Though the motion was lost, it was on the ground of its alleged inexpediency alone, and not because Congress lacked the constitutional power. In the debate which preceded the vote, the power of Congress was conceded. In March, 1816, the House of Representatives passed the following resolution:—"Resolved, That a committee be appointed to inquire into the existence of an inhuman and illegal traffic in slaves, carried on in and through the District of Columbia, and to report whether any and what measures are necessary for putting a stop to the same."
On the 9th of January, 1829, the House of Representatives passed the following resolution by a vote of 114 to 66: "Resolved, That the Committee on the District of Columbia be instructed to inquire into the expediency of providing by law for the gradual abolition of slavery within the District, in such manner that the interests of no individual shall be injured thereby." Among those who voted in the affirmative were Messrs. Barney of Md., Armstrong of Va., A.H. Shepperd of N.C., Blair of Tenn., Chilton and Lyon of Ky., Johns of Delaware, and others from slave states.
2. It has been conceded directly, or impliedly, by all the committees on the District of Columbia that have reported on the subject. In a report of the committee on the District, Jan. 11, 1837, by their chairman, Mr. Powell of Virginia, there is the following declaration "The Congress of the United States, has by the constitution exclusive jurisdiction over the District, and has power upon this subject, (slavery) as upon all other subjects of legislation, to exercise unlimited discretion." Reps. of Comms. 2d Session, 19th Cong. v. I. No. 43. In February, 1829, the committee on the District, Mr. Alexander of Virginia, Chairman, in their report pursuant to Mr. Miner's resolutions, recognize a contingent abolition proceeding upon the consent of the people. In December, 1831, the committee on the District, Mr. Doddridge of Virginia, Chairman, reported, "That until the adjoining states act on the subject (slavery) it would be (not unconstitutional but) unwise and impolitic, if not unjust, for Congress to interfere." In April, 1836, a special committee on abolition memorials reported the following resolutions by their Chairman, Mr. Pinckney of South Carolina: "Resolved, that Congress possesses no constitutional authority to interfere in any way with the institution of slavery in any of the states of this confederacy."
"Resolved, That Congress ought not to interfere in any way with slavery in the District of Columbia." "Ought not to interfere," carefully avoiding the phraseology of the first resolution, and thus in effect conceding the constitutional power. In a widely circulated "Address to the electors of the Charleston District," Mr. Pinckney is thus denounced by his own constituents: "He has proposed a resolution which is received by the plain common sense of the whole country as a concession that Congress has authority to abolish slavery in the District of Columbia."
3. It has been conceded by the citizens of the District. A petition for the gradual abolition of slavery in the District, signed by nearly eleven hundred of its citizens, was presented to Congress, March 24, 1837. Among the signers to this petition, were Chief Justice Cranch, Judge Van Ness, Judge Morsel, Prof. J.M. Staughton, Rev. Dr. Balch, Rev. Dr. Keith, John M. Munroe, and a large number of the most influential inhabitants of the District. Mr. Dickson, of New York, asserted on the floor of Congress in 1835, that the signers of this petition owned more than half of the property in the District. The accuracy of this statement has never been questioned.
This power has been conceded by grand juries of the District. The grand jury of the county of Alexandria, at the March term 1802, presented the domestic slave trade as a grievance, and said, "We consider these grievances demanding legislative redress." Jan. 19, 1829, Mr. Alexander, of Virginia, presented a representation of the grand jury in the city of Washington, remonstrating against "any measure for the abolition of slavery within said District, unless accompanied by measures for the removal of the emancipated from the same;" thus, not only conceding the power to emancipate slaves, but affirming an additional power, that of excluding them when free. See Journal H.R. 1828-9, p. 174.
4. This power has been conceded by State Legislatures. In 1828 the Legislature of Pennsylvania instructed their Senators in Congress "to procure, if practicable, the passage of a law to abolish slavery in the District of Columbia." Jan. 28, 1829, the House of Assembly of New York passed a resolution, that their "Senators in Congress be instructed to make every possible exertion to effect the passage of a law for the abolition of Slavery in the District of Columbia." In February, 1837, the Senate of Massachusetts "Resolved, That Congress having exclusive legislation in the District of Columbia, possess the right to abolish slavery and the slave trade therein, and that the early exercise of such right is demanded by the enlightened sentiment of the civilized world, by the principles of the revolution, and by humanity." The House of Representatives passed the following resolution at the same session: "Resolved, That Congress having exclusive legislation in the District of Columbia, possess the right to abolish slavery in said District, and that its exercise should only be restrained by a regard to the public good."
November 1, 1837, the Legislature of Vermont, "Resolved, that Congress have the full power by the constitution to abolish slavery and the slave trade in the District of Columbia, and in the territories." The Legislature of Vermont passed in substance the same resolution, at its session in 1836.
May 30, 1836, a committee of the Pennsylvania Legislature reported the following resolution: "Resolved, That Congress does possess the constitutional power, and it is expedient to abolish slavery and the slave trade within the District of Columbia."
In January, 1836, the Legislature of South Carolina "Resolved, That we should consider the abolition of slavery in the District of Columbia as a violation of the rights of the citizens of that District derived from the implied conditions on which that territory was ceded to the General Government." Instead of denying the constitutional power, they virtually admit its existence, by striving to smother it under an implication. In February, 1836, the Legislature of North Carolina "Resolved, That, although by the Constitution all legislative power over the District of Columbia is vested in the Congress of the United States, yet we would deprecate any legislative action on the part of that body towards liberating the slaves of that District, as a breach of faith towards those States by whom the territory was originally ceded, and will regard such interference as the first step towards a general emancipation of the slaves of the South." Here is a full concession of the power, February 2, 1836, the Virginia Legislature passed unanimously the following resolution: "Resolved, by the General Assembly of Virginia, that the following article be proposed to the several states of this Union, and to Congress, as an amendment of the Constitution of the United States: 'The powers of Congress shall not be so construed as to authorize the passage of any law for the emancipation of slaves in the District of Columbia, without the consent of the individual proprietors thereof, unless by the sanction of the Legislatures of Virginia and Maryland, and under such conditions as they shall by law prescribe.'"
Fifty years after the formation of the United States constitution the states are solemnly called upon by the Virginia Legislature, to amend that instrument by a clause asserting that, in the grant to Congress of "exclusive legislation in all cases whatsoever" over the District, the "case" of slavery is not included!! What could have dictated such a resolution but the conviction that the power to abolish slavery is an irresistible interference from the constitution as it is. The fact that the same legislature passed afterward a resolution, though by no means unanimously, that Congress does not possess the power, abates not a tittle of the testimony in the first resolution. March 23d, 1824, "Mr. Brown presented the resolutions of the General Assembly of Ohio, recommending to Congress the consideration of a system for the gradual emancipation of persons of color held in servitude in the United States." On the same day, "Mr. Noble, of Indiana, communicated a resolution from the legislature of that state, respecting the gradual emancipation of slaves within the United States." Journal of the United States Senate, for 1824-5, p. 231.
The Ohio and Indiana resolutions, by taking for granted the general power of Congress over the subject of slavery, do virtually assert its special power within its exclusive jurisdiction.
5. The power of Congress to abolish slavery in the District, has been conceded by bodies of citizens in the slave states. The petition of eleven hundred citizens of the District of Columbia, in 1827, has been already mentioned. "March 5, 1830, Mr. Washington presented a memorial of inhabitants of the county of Frederick, in the state of Maryland, praying that provision may be made for the gradual abolition of slavery in the District of Columbia." Journal H.R. 1829-30, p. 358.
March 30, 1828. Mr. A.H. Shepperd, of North Carolina, presented a memorial of citizens of that state, "praying Congress to take measures fur the entire abolition of slavery in the District of Columbia." Journal H.R. 1829-30, p. 379.
January 14, 1822. Mr. Rhea, of Tennessee, presented a memorial of citizens of that state, praying "that provision may be made, whereby all slaves which may hereafter be born in the District of Columbia, shall be free at a certain period of their lives." Journal H.R. 1821-22, p. 142.
December 13, 1824. Mr. Saunders of North Carolina, presented a memorial of citizens of that state, praying "that measures may be taken for the gradual abolition of slavery in the United States." Journal H.R. 1824-25, p. 27.
December 16, 1828. "Mr. Barnard presented the memorial of the American Convention for promoting the abolition of slavery, held in Baltimore, praying that slavery may be abolished in the District of Columbia." Journal U.S. Senate, 1828-29, p. 24.
6. Distinguished statesmen and jurists in the slaveholding states, have conceded the power of Congress to abolish slavery in the District. The testimony of Messrs. Doddridge, Powell, and Alexander, of Virginia, Chief Justice Cranch, and Judges Morsell and Van Ness, of the District, has already been given. In the debate in Congress on the memorial of the Society of Friends, in 1790, Mr. Madison, in speaking of the territories of the United States, explicitly declared, from his own knowledge of the views of the members of the convention that framed the constitution, as well as from the obvious import of its terms, that in the territories "Congress have certainly the power to regulate the subject of slavery." Congress can have no more power over the territories than that of "exclusive legislation in all cases whatsoever," consequently, according to Mr. Madison, "it has certainly the power to regulate the subject of slavery in the" District. In March, 1816, John Randolph introduced a resolution for putting a stop to the domestic slave trade within the District. December 12, 1827, Mr. Barney, of Maryland, presented a memorial for abolition in the District, and moved that it be printed. Mr. McDuffie, of South Carolina, objected to the printing, but "expressly admitted the right of Congress to grant to the people of the District any measures which they might deem necessary to free themselves from the deplorable evil."—(See letter of Mr. Claiborne, of Mississippi, to his constituents, published in the Washington Globe, May 9, 1836.) The sentiments of Henry Clay on the subject are well known. In a speech before the U.S. Senate, in 1836, he declared the power of Congress to abolish slavery in the District "unquestionable." Messrs. Blair, of Tennessee, Chilton, Lyon, and Richard M. Johnson, of Kentucky, A.H. Shepperd, of North Carolina, Messrs. Armstrong and Smyth, of Virginia, Messrs. Dorsey, Archer, and Barney, of Maryland, and Johns, of Delaware, with numerous others from slave states, have asserted the power of Congress to abolish slavery in the District. In the speech of Mr. Smyth, of Virginia, on the Missouri question, January 28, 1820, he says on this point: "If the future freedom of the blacks is your real object, and not a mere pretence, why do you not begin here? Within the ten miles square, you have undoubted power to exercise exclusive legislation. Produce a bill to emancipate the slaves in the District of Columbia, or, if you prefer it, to emancipate those born hereafter."
To this may be added the testimony of the present Vice President of the United States, Hon. Richard M. Johnson, of Kentucky. In a speech before the United States' Senate, February 1, 1820, (National Intelligencer, April 29, 1820,) he says: "Congress has the express power stipulated by the Constitution, to exercise exclusive legislation over this District of ten miles square. Here slavery is sanctioned by law. In the District of Columbia, containing a population of 30,000 souls, and probably as many slaves as the whole territory of Missouri, THE POWER OF PROVIDING FOR THEIR EMANCIPATION RESTS WITH CONGRESS ALONE. Why, then, let me ask, Mr. President, why all this sensibility—this commiseration—this heart-rending sympathy for the slaves of Missouri, and this cold insensibility, this eternal apathy, towards the slaves in the District of Columbia?"