The Anti-Slavery Examiner, Omnibus · Chapter 47Part 47
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Finally, in the clause under consideration, "private property" is not to be taken "without just compensation." "JUST!" If justice is to be appealed to in determining the amount of compensation, let her determine the grounds also. If it be her province to say how much compensation is "just," it is hers to say whether any is "just,"—whether the slave is "just" property at all, rather than a "person." Then, if justice adjudges the slave to be "private property," it adjudges him to be his own property, since the right to one's self is the first right—the source of all others—the original stock by which they are accumulated—the principal, of which they are the interest. And since the slave's "private property" has been "taken," and since "compensation" is impossible—there being no equivalent for one's self—the least that can be done is to restore to him his original private property.
Having shown that in abolishing slavery, "property" would not be "taken for public use," it may be added that, in those states where slavery has been abolished by law, no claim for compensation has been allowed. Indeed the manifest absurdity of demanding it, seems to have quite forstalled the setting up of such a claim.
The abolition of slavery in the District, instead of being a legislative anomaly, would proceed upon the principles of every day legislation. It has been shown already, that the United States' Constitution does not recognize slaves as "property." Yet ordinary legislation is full of precedents, showing that even absolute property is in many respects wholly subject to legislation. The repeal of the law of entailments—all those acts that control the alienation of property, its disposal by will, its passing to heirs by descent, with the question, who shall be heirs, and what shall be the rule of distribution among them, or whether property shall be transmitted at all by descent, rather than escheat to the state—these, with statutes of limitation, and various other classes of legislative acts, serve to illustrate the acknowledged scope of the law-making power, even where property is in every sense absolute. Persons whose property is thus affected by public laws, receive from the government no compensation for their losses, unless the state has been put in possession of the property taken from them.
The preamble of the United States' Constitution declares it to be a fundamental object of the organization of the government "to ESTABLISH JUSTICE." Has Congress no power to do that for which it was made the depository of power? CANNOT the United States' Government fulfil the purpose for which it was brought into being?
To abolish slavery, is to take from no rightful owner his property; but to "establish justice" between two parties. To emancipate the slave, is to "establish justice" between him and his master—to throw around the person, character, conscience, liberty, and domestic relations of the one, the same law that secures and blesses the other. In other words, to prevent by legal restraints one class of men from seizing upon another class, and robbing them at pleasure of their earnings, their time, their liberty, their kindred, and the very use and ownership of their own persons. Finally, to abolish slavery is to proclaim and enact that innocence and helplessness—now free plunder—are entitled to legal protection; and that power, avarice, and lust, shall no longer gorge upon their spoils under the license, and by the ministrations of law! Congress, by possessing "exclusive legislation in all cases whatsoever," has a general protective power for ALL the inhabitants of the District. If it has no power to protect one man, it has none to protect another—none to protect any—and if it can protect one man and is bound to protect him, it can protect every man—all men—and is bound to do it. All admit the power of Congress to protect the masters in the District against their slaves. What part of the constitution gives the power? The clause so often quoted,—"power of legislation in all cases whatsoever," equally in the "case" of defending the blacks against the whites, as in that of defending the whites against the blacks. The power is given also by Art. 1, Sec. 8, clause 15—"Congress shall have power to suppress insurrections"—a power to protect, as well blacks against whites, as whites against blacks. If the constitution gives power to protect one class against the other, it gives power to protect either against the other. Suppose the blacks in the District should seize the whites, drive them into the fields and kitchens, force them to work without pay, flog them, imprison them, and sell them at their pleasure, where would Congress find power to restrain such acts? Answer; a general power in the clause so often cited, and an express one in that cited above—"Congress shall have power to suppress insurrections." So much for a supposed case. Here follows a real one. The whites in the District are perpetrating these identical acts upon seven thousand blacks daily. That Congress has power to restrain these acts in one case, all assert, and in so doing they assert the power "in all cases whatsoever." For the grant of power to suppress insurrections, is an unconditional grant, not hampered by provisos as to the color, shape, size, sex, language, creed, or condition of the insurgents. Congress derives its power to suppress this actual insurrection, from the same source whence it derived its power to suppress the same acts in the case supposed. If one case is an insurrection, the other is. The acts in both are the same; the actors only are different. In the one case, ignorant and degraded—goaded by the memory of the past, stung by the present, and driven to desperation by the fearful looking for of wrongs for ever to come. In the other, enlightened into the nature of rights, the principles of justice, and the dictates of the law of love, unprovoked by wrongs, with cool deliberation, and by system, they perpetrate these acts upon those to whom they owe unnumbered obligations for whole lives of unrequited service. On which side may palliation be pleaded, and which party may most reasonably claim an abatement of the rigors of law? If Congress has power to suppress such acts at all, it has power to suppress them in all.
It has been shown already that allegiance is exacted of the slave. Is the government of the United States unable to grant protection where it exacts allegiance? It is an axiom of the civilized world, and a maxim even with savages, that allegiance and protection are reciprocal and correlative. Are principles powerless with us which exact homage of barbarians? Protection is the CONSTITUTIONAL RIGHT of every human being under the exclusive legislation of Congress who has not forfeited it by crime.
In conclusion, I argue the power of Congress to abolish slavery in the District, from Art. 1, sec, 8, clause 1, of the constitution; "Congress shall have power to provide for the common defence and the general welfare of the United States." Has the government of the United States no power under this grant, to legislate within its own exclusive jurisdiction on subjects that vitally affect its interests? Suppose the slaves in the district should rise upon their masters, and the United States' government, in quelling the insurrection, should kill any number of them. Could their masters claim compensation of the government? Manifestly not; even though no proof existed that the particular slaves killed were insurgents. This was precisely the point at issue between those masters, whose slaves were killed by the State troops at the time of the Southampton insurrection, and the Virginia Legislature: no evidence was brought to show that the slaves killed by the troops were insurgents; yet the Virginia Legislature decided that their masters were not entitled to compensation. They proceeded on the sound principle, that a government may in self-protection destroy the claim of its subjects even to that which has been recognized as property by its own acts. If in providing for the common defence, the United States' government, in the case supposed, would have power to destroy slaves both as property and persons, it surely might stop half-way, destroy them as property while it legalized their existence as persons, and thus provided for the common defence by giving them a personal and powerful interest in the government, and securing their strength for its defence.
Like other Legislatures, Congress has power to abate nuisances—to remove or tear down unsafe buildings—to destroy infected cargoes—to lay injunctions upon manufactories injurious to the public health—and thus to "provide for the common defence and general welfare" by destroying individual property, when such property puts in jeopardy the public weal.
Granting, for argument's sake, that slaves are "property" in the District of Columbia—if Congress has a right to annihilate property in the District when the public safety requires it, it may surely annihilate its existence as property when the public safety requires it, especially if it transform into a protection and defence that which as property perilled the public interests. In the District of Columbia there are, besides the United States' Capitol, the President's house, the national offices, &c. of the Departments of State, Treasury, War, and Navy, the General Post-office, and Patent Office. It is also the residence of the President, all the highest officers of the government, both houses of Congress, and all the foreign ambassadors. In this same District there are also seven thousand slaves. Jefferson, in his Notes on Va. p. 241, says of slavery, that "the State permitting one half of its citizens to trample on the rights of the other, transforms them into enemies;" and Richard Henry Lee, in the Va. house of Burgesses in 1758, declared that to those who held them, "slaves must be natural enemies." Is Congress so impotent that it cannot exercise that right pronounced both by municipal and national law, the most sacred and universal—the right of self-preservation and defence? Is it shut up to the necessity of keeping seven thousand "enemies" in the heart of the nation's citadel? Does the iron fiat of the constitution doom it to such imbecility that it cannot arrest the process that made them "enemies," and still goads to deadlier hate by fiery trials, and day by day adds others to their number? Is this providing for the common defence and general welfare? If to rob men of rights excites their hate, freely to restore them and make amends, will win their love.
By emancipating the slaves in the District, the government of the United States would disband an army of "enemies," and enlist "for the common defence and general welfare," a body guard of friends seven thousand strong. In the last year, a handful of British soldiers sacked Washington city, burned the capitol, the President's house, and the national offices and archives; and no marvel, for thousands of the inhabitants of the District had been "TRANSFORMED INTO ENEMIES." Would they beat back invasion? If the national government had exercised its constitutional "power to provide for the common defence and to promote the general welfare," by turning those "enemies" into friends, then, instead of a hostile ambush lurking in every thicket inviting assault, and secret foes in every house paralyzing defence, an army of allies would have rallied in the hour of her calamity, and shouted defiance from their munitions of rocks; whilst the banner of the republic, then trampled in dust, would have floated securely over FREEMEN exulting amidst bulwarks of strength.
To show that Congress can abolish slavery in the District, under the grant of power "to provide for the common defence and to promote the general welfare," I quote an extract from a speech of Mr. Madison, of Va., in the first Congress under the constitution, May 13, 1789. Speaking of the abolition of the slave trade, Mr. Madison says: "I should venture to say it is as much for the interests of Georgia and South Carolina, as of any state in the union. Every addition they receive to their number of slaves tends to weaken them, and renders them less capable of self-defence. In case of hostilities with foreign nations, they will be the means of inviting attack instead of repelling invasion. It is a necessary duty of the general government to protect every part of the empire against danger, as well internal as external. Every thing, therefore, which tends to increase this danger, though it may be a local affair, yet if it involves national expense or safety, it becomes of concern to every part of the union, and is a proper subject for the consideration of those charged with the general administration of the government." See Cong. Reg. vol. 1, p. 310, 11.
My apology for adding a postscript, to a discussion already perhaps too protracted, is the fact that the preceding sheets were in the hands of the printer, and all but the concluding pages had gone through the press, before the passage of Mr. Calhoun's late resolutions in the Senate of the United States. A proceeding so extraordinary,—if indeed the time has not passed when any acts of Congress in derogation of freedom and in deference to slavery, can be deemed extraordinary,—should not be suffered to pass in silence at such a crisis as the present; especially as the passage of one of the resolutions by a vote of 36 to 9, exhibits a shift of position on the part of the South, as sudden as it is unaccountable, being nothing less than the surrender of a fortress which until then they had defended with the pertinacity of a blind and almost infuriated fatuity. Upon the discussions during the pendency of the resolutions, and upon the vote, by which they were carried, I make no comment, save only to record my exultation in the fact there exhibited, that great emergencies are true touchstones, and that henceforward, until this question is settled, whoever holds a seat in Congress will find upon, and all around him, a pressure strong enough to TEST him—a focal blaze that will find its way through the carefully adjusted cloak of fair pretension, and the sevenfold brass of two-faced political intrigue, and no-faced non-committalism, piercing to the dividing asunder of joints and marrow. Be it known to every northern man who aspires to a seat in Congress, that hereafter it is the destiny of congressional action on this subject, to be a MIGHTY REVELATOR—making secret thoughts public property, and proclaiming on the house-tops what is whispered in the ear—smiting off masks, and bursting open sepulchres beautiful outwardly, and heaving up to the sun their dead men's bones. To such we say,—Remember the Missouri Question, and the fate of those who then sold the North, and their own birthright!
Passing by the resolutions generally without remark—the attention of the reader is specially solicited to Mr. Clay's substitute for Mr. Calhoun's fifth resolution.
"Resolved, That when the District of Columbia was ceded by the states of Virginia and Maryland to the United States, domestic slavery existed in both of these states, including the ceded territory, and that, as it still continues in both of them, it could not be abolished within the District without a violation of that good faith, which was implied in the cession and in the acceptance of the territory; nor, unless compensation were made to the proprietors of slaves, without a manifest infringement of an amendment to the constitution of the United States; nor without exciting a degree of just alarm and apprehension in the states recognizing slavery, far transcending in mischievous tendency, any possible benefit which could be accomplished by the abolition."
By voting for this resolution, the south, by a simultaneous movement, shifted its mode of defense, not so much by taking a position entirely new, as by attempting to refortify an old one—never much trusted in, and abandoned mainly long ago, as being unable to hold out against assault however unskilfully directed. In the debate on this resolution, though the southern members of Congress did not professedly retreat from the ground hitherto maintained by them—that Congress has no power by the constitution to abolish slavery in the District—yet in the main they silently drew off from it.
The passage of this resolution—with the vote of every southern senator, forms a new era in the discussion of this question.
We cannot join in the lamentations of those who bewail it. We hail it, and rejoice in it. It was as we would have had it—offered by a southern senator, advocated by southern senators, and on the ground that it "was no compromise"—that it embodied the true southern principle—that "this resolution stood on as high ground as Mr. Calhoun's"—(Mr. Preston)—"that Mr. Clay's resolution was as strong as Mr. Calhoun's"—(Mr. Rives)—that "the resolution he (Mr. Calhoun) now refused to support, was as strong as his own, and that in supporting it, there was no abandonment of principle by the south."—(Mr. Walker, of Mi.)—further, that it was advocated by the southern senators generally as an expression of their views, and as setting the question of slavery in the District on its true ground—that finally when the question was taken, every slaveholding senator, including Mr. Calhoun himself, voted for the resolution.
By passing this resolution, and with such avowals, the south has surrendered irrevocably the whole question at issue between them and the petitioners for abolition in the District. It has, unwittingly but explicitly, conceded the main question argued in the preceding pages.
The only ground taken against the right of Congress to abolish slavery in the District is, that it existed in Maryland and Virginia when the cession was made, and "as it still continues in both of them, it could not be abolished without a violation of that good faith which was implied in the cession." &c. The sole argument is not that exclusive sovereignty has no power to abolish slavery within its jurisdiction, nor that the powers of even ordinary legislation cannot do it,—nor that the clause granting Congress "exclusive legislation in all cases whatsoever over such District," gives no power to do it; but that the unexpressed expectation of one of the parties that the other would not "in all cases" use the power which said party had consented might be used "in all cases," prohibits the use of it. The only cardinal point in the discussion, is here not only yielded, but formally laid down by the South as the leading article in their creed on the question of Congressional jurisdiction over slavery in the District. The sole reason given why Congress should not abolish, and the sole evidence that if it did, such abolition would be a violation of "good faith," is that "slavery still continues in those states,"—thus explicitly admitting, that if slavery did not "still continue" in those States, Congress could abolish it in the District. The same admission is made also in the premises, which state that slavery existed in those states at the time of the cession, &c. Admitting that if it had not existed there then, but had grown up in the District under United States' laws, Congress might constitutionally abolish it. Or that if the ceded parts of those states had been the only parts in which slaves were held under their laws, Congress might have abolished in such a contingency also. The cession in that case leaving no slaves in those states,—no "good faith," would be "implied" in it, nor any "violated," by an act of abolition. The principle of the resolution makes this further admission, that if Maryland and Virginia should at once abolish their slavery, Congress might at once abolish it in the District. The principle goes even further than this, and requires Congress in such case to abolish slavery in the District "by the good faith implied in the cession and acceptance of the territory." Since, according to the spirit and scope of the resolution, this "implied good faith" of Maryland and Virginia in making the cession, was that Congress would do nothing within the District which should go to counteract the policy, or bring into disrepute the "institutions," or call in question the usages, or even in any way ruffle the prejudices of those states, or do what they might think would unfavorably bear upon their interests; themselves of course being the judges.
But let us dissect another limb of the resolution. What is to be understood by "that good faith which was IMPLIED?" It is of course an admission that such a condition was not expressed in the acts of cession—that in their terms there is nothing restricting the power of Congress on the subject of slavery in the District—not a word alluding to it, nor one inserted with such an intent. This "implied faith," then, rests on no clause or word in the United States' Constitution, or in the acts of cession, or in the acts of Congress accepting the cession, nor does it rest on any declarations of the legislatures of Maryland and Virginia made at the time, or in that generation, nor on any act of theirs, nor on any declaration of the people of those states, nor on the testimony of the Washingtons, Jeffersons, Madisons, Chaces, Martins, and Jennifers, of those states and times. The assertion rests on itself alone! Mr. Clay and the other senators who voted for the resolution, guess that Maryland and Virginia supposed that Congress would by no means use the power given them by the constitution, except in such ways as would be well pleasing in the eyes of those states; especially as one of them was the "Ancient Dominion!" And now after the lapse of half a century, this assumed expectation of Maryland and Virginia, the existence of which is mere matter of conjecture with the 36 senators, is conjured up and duly installed upon the judgment-seat of final appeal, before whose nod constitutions are to flee away, and with whom, solemn grants of power and explicit guaranties are, when weighed in the balance, altogether lighter than vanity!
But let us survey it in another light. Why did Maryland and Virginia leave so much to be "implied?" Why did they not in some way express what lay so near their hearts? Had their vocabulary run so low that a single word could not be eked out for the occasion? Or were those states so bashful of a sudden that they dare not speak out and tell what they wanted? Or did they take it for granted that Congress would always act in the premises according to their wishes, and that too, without their making known their wishes? If, as honorable senators tell us, Maryland and Virginia did verily travail with such abounding faith, why brought they forth no works?
It is as true in legislation as in religion, that the only evidence of "faith" is works, and that "faith" without works is dead, i.e. has no power. But here, forsooth, a blind implication with nothing expressed, an "implied" faith without works, is omnipotent. Mr. Clay is lawyer enough to know that even a senatorial hypothesis as to what must have been the understanding of Maryland and Virginia about congressional exercise of constitutional power, abrogates no grant, and that to plead it in a court of law, would be of small service except to jostle "their Honors'" gravity! He need not be told that the constitution gives Congress "power to exercise exclusive legislation in all cases whatsoever over such District." Nor that the legislatures of Maryland and Virginia constructed their acts of cession with this clause before their eyes, and that both of them declared those acts made "in pursuance" of said clause. Those states were aware that the United States in their constitution had left nothing to be "implied" as to the power of Congress over the District;—an admonition quite sufficient one would think to put them on their guard, and induce them to eschew vague implications and resort to stipulations. Full well did they know also that those were times when, in matters of high import, nothing was left to be "implied." The colonies were then panting from a twenty years' conflict with the mother country, about bills of rights, charters, treaties, constitutions, grants, limitations, and acts of cession. The severities of a long and terrible discipline had taught them to guard at all points legislative grants, that their exact import and limit might be self-evident—leaving no scope for a blind "faith," that somehow in the lottery of chances there would be no blanks, but making all sure by the use of explicit terms, and wisely chosen words, and just enough of them. The Constitution of the United States with its amendments, those of the individual states, the national treaties, the public documents of the general and state governments at that period, show the universal conviction of legislative bodies, that when great public interest were at stake, nothing should be left to be "implied."
Further: suppose Maryland and Virginia had expressed their "implied faith" in words, and embodied it in their acts of cession as a proviso, declaring that Congress should not "exercise exclusive legislation in all cases whatsoever over the District," but that the "case" of slavery should be an exception: who does not know that Congress, if it had accepted the cession on those terms, would have violated the Constitution; and who that has ever studied the free mood of those times in its bearings on slavery—proofs of which are given in scores on the preceding pages—can for an instant believe that the people of the United States would have altered their Constitution for the purpose of providing for slavery an inviolable sanctuary; that when driven in from its outposts, and everywhere retreating discomfited before the march of freedom, it might be received into everlasting habitations on the common homestead and hearth-stone of this free republic? Besides, who can believe that Virginia made such a condition, or cherished such a purpose, when at that very moment, Washington, Jefferson, Wythe, Patrick Henry, St. George Tucker, and almost all her illustrious men, were advocating the abolition of slavery by law. When Washington had said, two years before, Maryland and Virginia "must have laws for the gradual abolition of slavery and at a period not remote;" and when Jefferson in his letter to Price, three years before the cession, had said, speaking of Virginia, "This is the next state to which we may turn our eyes for the interesting spectacle of justice in conflict with avarice and oppression—a conflict in which THE SACRED SIDE IS GAINING DAILY RECRUITS;" when voluntary emancipations on the soil were then progressing at the rate of between one and two thousand annually, (See Judge Tucker's "Dissertation on Slavery," p. 73;) when the public sentiment of Virginia had undergone, and was undergoing so mighty a revolution that the idea of the continuance of slavery as a permanent system could not be tolerated, though she then contained about half the slaves in the Union. Was this the time to stipulated for the perpetuity of slavery under the exclusive legislation of Congress? and that too at the same session of Congress when every one of her delegation voted for the abolition of slavery in the North West Territory; a territory which she had herself ceded to Congress, and along with it had surrendered her jurisdiction over many of her citizens, inhabitants of that territory, who held slaves there—and whose slaves were emancipated by that act of Congress, in which all her delegation with one accord participated?
Now in view of the universal belief then prevalent, that slavery in this country was doomed to short life, and especially that in Maryland and Virginia it would be speedily abolished—are we to be told that those states designed to bind Congress never to terminate it? Are we to adopt the monstrous conclusion that this was the intent of the Ancient Dominion—thus to bind the United States by an "implied faith," and that when the United States accepted the cession, she did solemnly thus plight her troth, and that Virginia did then so understand it? Verily one would think that honorable senators supposed themselves deputed to do our thinking as well as our legislation, or rather, that they themselves were absolved from such drudgery by virtue of their office!
Another absurdity of this dogma about "implied faith" is, that where there was no power to exact an express pledge, there was none to demand an implied one, and where there was no power to give the one, there was none to give the other. We have shown already that Congress could not have accepted the cession with such a condition. To have signed away a part of its constitutional grant of power would have been a breach of the Constitution. Further, the Congress which accepted the cession was competent to pass a resolution pledging itself not to use all the power over the District committed to it by the Constitution. But here its power ended. Its resolution would only bind itself. Could it bind the next Congress by its authority? Could the members of one Congress say to the members of another, because we do not choose to exercise all the authority vested in us by the Constitution, therefore you shall not? This would have been a prohibition to do what the Constitution gives power to do. Each successive Congress would still have gone to the Constitution for its power, brushing away in its course the cobwebs stretched across its path by the officiousness of an impertinent predecessor. Again, the legislatures of Virginia and Maryland, had no power to bind Congress, either by an express or an implied pledge, never to abolish slavery in the District. Those legislatures had no power to bind themselves never to abolish slavery within their own territories—the ceded parts included. Where then would they get power to bind another not to do what they had no power to bind themselves not to do? If a legislature could not in this respect control the successive legislatures of its own State, could it control the successive Congresses of the United States?