The Anti-Slavery Examiner, Omnibus · Chapter 52Part 52
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Mr. Faulkner, in a speech before the Virginia House of Delegates, Jan. 20, 1832, said: "The idea of a gradual emancipation and removal of the slaves from this commonwealth, is coeval with the declaration of our independence from the British yoke. When Virginia stood sustained in her legislation by the pure and philosophic intellect of Pendleton, by the patriotism of Mason and Lee, by the searching vigor and sagacity of Wythe, and by the all-embracing, all-comprehensive genius of Thomas Jefferson! Sir, it was a committee composed of those five illustrious men, who, in 1777, submitted to the general assembly of this state, then in session, a plan for the gradual emancipation of the slaves of this commonwealth."
Hon. Benjamin Watkins Leigh, late United States' senator from Virginia, in his letters to the people of Virginia, in 1832, signed Appomattox, p. 43, says: "I thought, till very lately, that it was known to every body that during the revolution, and for many years after, the abolition of slavery was a favorite topic with many of our ablest statesmen, who entertained, with respect, all the schemes which wisdom or ingenuity could suggest for accomplishing the object. Mr. Wythe, to the day of his death, was for a simple abolition, considering the objection to color as founded in prejudice. By degrees, all projects of the kind were abandoned. Mr. Jefferson retained his opinion, and now we have these projects revived."
Governor Barbour, of Virginia, in his speech in the U.S. Senate, on the Missouri question, Jan. 1820, said: "We are asked why has Virginia changed her policy in reference to slavery? That the sentiments of our most distinguished men, for thirty years entirely corresponded with the course which the friends of the restriction (of slavery in Missouri) now advocated; and that the Virginia delegation, one of whom was the late President of the United States, voted for the restriction (of slavery) in the northwestern territory, and that Mr. Jefferson has delineated a gloomy picture of the baneful effects of slavery. When it is recollected that the Notes of Mr. Jefferson were written during the progress of the revolution, it is no matter of surprise that the writer should have imbibed a large portion of that enthusiasm which such an occasion was so well calculated to produce. As to the consent of the Virginia delegation to the restriction in question, whether the result of a disposition to restrain the slave-trade indirectly, or the influence of that enthusiasm to which I have just alluded, * * * * it is not now important to decide. We have witnessed its effects. The liberality of Virginia, or, as the result may prove, her folly, which submitted to, or, if you will, PROPOSED this measure (abolition of slavery in the N.W. territory) has eventuated in effects which speak a monitory lesson. How is the representation from this quarter on the present question?"
Mr. Imlay, in his early history of Kentucky, p. 185, says: "We have disgraced the fair face of humanity, and trampled upon the sacred privileges of man, at the very moment that we were exclaiming against the tyranny of your (the English) ministry. But in contending for the birthright of freedom, we have learned to feel for the bondage of others, and in the libations we offer to the goddess of liberty, we contemplate an emancipation of the slaves of this country, as honorable to themselves as it will be glorious to us."
In the debate in Congress, Jan. 20, 1806, on Mr. Sloan's motion to lay a tax on the importation of slaves, Mr. Clark of Va. said: "He was no advocate for a system of slavery." Mr. Marion, of S. Carolina, said: "He never had purchased, nor should he ever purchase a slave." Mr. Southard said: "Not revenue, but an expression of the national sentiment is the principal object." Mr. Smilie--"I rejoice that the word (slave) is not in the constitution; its not being there does honor to the worthies who would not suffer it to become a part of it." Mr. Alston, of N. Carolina--"In two years we shall have the power to prohibit the trade altogether. Then this House will be unanimous. No one will object to our exercising our full constitutional powers." National Intelligencer, Jan. 24, 1806.
These witnesses need no vouchers to entitle them to credit; nor their testimony comments to make it intelligible--their names are their endorsers, and their strong words their own interpreters. We waive all comments. Our readers are of age. Whosoever hath ears to hear, let him HEAR. And whosoever will not hear the fathers of the revolution, the founders of the government, its chief magistrates, judges, legislators and sages, who dared and perilled all under the burdens, and in the heat of the day that tried men's souls--then "neither will he be persuaded though THEY rose from the dead."
Some of the points established by this testimony are--The universal expectation that Congress, state legislatures, seminaries of learning, churches, ministers of religion, and public sentiment widely embodied in abolition societies, would act against slavery, calling forth the moral sense of the nation, and creating a power of opinion that would abolish the system throughout the Union. In a word, that free speech and a free press would be wielded against it without ceasing and without restriction. Full well did the South know, not only that the national government would probably legislate against slavery wherever the constitution placed it within its reach, but she knew also that Congress had already marked out the line of national policy to be pursued on the subject--had committed itself before the world to a course of action against slavery, wherever she could move upon it without encountering a conflicting jurisdiction--that the nation had established by solemn ordinance a memorable precedent for subsequent action, by abolishing slavery in the northwest territory, and by declaring that it should never thenceforward exist there; and this too, as soon as by cession of Virginia and other states, the territory came under congressional control. The South knew also that the sixth article in the ordinance prohibiting slavery, was first proposed by the largest slaveholding state in the confederacy--that in the Congress of '84, Mr. Jefferson, as chairman of the committee on the N.W. territory, reported a resolution abolishing slavery there--that the chairman of the committee that reported the ordinance of '87 was also a slaveholder--that the ordinance was enacted by Congress during the session of the convention that formed the United States' Constitution--that the provisions of the ordinance were, both while in prospect and when under discussion, matters of universal notoriety and approval with all parties, and when finally passed, received the vote of every member of Congress from each of the slaveholding states. The South also had every reason for believing that the first Congress under the constitution would ratify that ordinance--as it did unanimously.
A crowd of reflections, suggested by the preceding testimony, presses for utterance. The right of petition ravished and trampled by its constitutional guardians, and insult and defiance hurled in the faces of the SOVEREIGN PEOPLE while calmly remonstrating with their SERVANTS for violence committed on the nation's charter and their own dearest rights! Added to this "the right of peaceably assembling" violently wrested--the rights of minorities, rights no longer--free speech struck dumb--free men outlawed and murdered--free presses cast into the streets and their fragments strewed with shoutings, or flourished in triumph before the gaze of approving crowds as proud mementos of prostrate law! The spirit and power of our fathers, where are they? Their deep homage always and every where rendered to FREE THOUGHT, with its inseparable signs--free speech and a free press--their reverence for justice, liberty, rights and all-pervading law, where are they?
But we turn from these considerations--though the times on which we have fallen, and those toward which we are borne with headlong haste, call for their discussion as with the voices of departing life--and proceed to topics relevant to the argument before us.
The seventh article of the amendments to the constitution is alleged to withhold from Congress the power to abolish slavery in the District. "No person shall be deprived of life, liberty, or property, without due process of law." All the slaves in the District have been "deprived of liberty" by legislative acts. Now, these legislative acts "depriving" them "of liberty," were either "due process of law," or they were not. If they were, then a legislative act, taking from the master that "property" which is the identical "liberty" previously taken from the slave, would be "due process of law" also, and of course a constitutional act; but if the legislative acts "depriving" them of "liberty" were not "due process of law," then the slaves were deprived of liberty unconstitutionally, and these acts are void. In that case the constitution emancipates them.
If the objector reply, by saying that the import of the phrase "due process of law," is judicial process solely, it is granted, and that fact is our rejoinder; for no slave in the District has been deprived of his liberty by "a judicial process," or, in other words, by "due process of law;" consequently, upon the objector's own admission, every slave in the District has been deprived of liberty unconstitutionally, and is therefore free by the constitution. This is asserted only of the slaves under the "exclusive legislation" of Congress.
The last clause of the article under consideration is quoted for the same purpose: "Nor shall private property he taken for public use without just compensation." Each of the state constitutions has a clause of similar purport. The abolition of slavery in the District by Congress, would not, as we shall presently show; violate this clause either directly or by implication. Granting for argument's sake, that slaves are "private property," and that to emancipate them, would be to "take private property" for "public use," the objector admits the power of Congress to do this, provided it will do something else, that is, pay for them. Thus, instead of denying the power, the objector not only admits, but affirms it, as the ground of the inference that compensation must accompany it. So far from disproving the existence of one power, he asserts the existence of two--one, the power to take the slaves from their masters, the other, the power to take the property of the United States to pay for them.
If Congress cannot constitutionally impair the right of private property, or take it without compensation, it cannot constitutionally, legalize the perpetration of such acts, by others, nor protect those who commit them. Does the power to rob a man of his earnings, rob the earner of his right to them? Who has a better right to the product than the producer?--to the interest, than the owner of the principal?--to the hands and arms, than he from whose shoulders they swing?--to the body and soul, than he whose they are? Congress not only impairs but annihilates the right of private property, while it withholds from the slaves of the District their title to themselves. What! Congress powerless to protect a man's right to himself, when it can make inviolable the right to a dog! But, waiving this, I deny that the abolition of slavery in the District would violate this clause. What does the clause prohibit? The "taking" of "private property" for "public use." Suppose Congress should emancipate the slaves in the District, what would it "take?" Nothing. What would it hold? Nothing. What would it put to "public use?" Nothing. Instead of taking "private property," Congress, by abolishing slavery, would say "private property shall not be taken; and those who have been robbed of it already, shall be kept out of it no longer; and every man's right to his own body shall be protected." True, Congress may not arbitrarily take property, as property, from one man and give it to another--and in the abolition of slavery no such thing is done. A legislative act changes the condition of the slave--makes him his own proprietor, instead of the property of another. It determines a question of original right between two classes of persons--doing an act of justice to one, and restraining the other from acts of injustice; or, in other words, preventing one from robbing the other, by granting to the injured party the protection of just and equitable laws.
Congress, by an act of abolition, would change the condition of seven thousand "persons" in the District, but would "take" nothing. To construe this provision so as to enable the citizens of the District to hold as property, and in perpetuity, whatever they please, or to hold it as property in all circumstances--all necessity, public welfare, and the will and power of the government to the contrary notwithstanding--is a total perversion of its whole intent. The design of the provision, was to throw up a barrier against Governmental aggrandizement. The right to "take property" for State uses is one thing;--the right so to adjust the tenures by which property is held, that each may have his own secured to him, is another thing, and clearly within the scope of legislation. Besides, if Congress were to "take" the slaves in the District, it would be adopting, not abolishing slavery--becoming a slaveholder itself, instead of requiring others to be such no longer. The clause in question, prohibits the "taking" of individual property for public use, to be employed or disposed of as property for governmental purposes. Congress, by abolishing slavery in the District, would do no such thing. It would merely change the condition of that which has been recognized as a qualified property by congressional acts, though previously declared "persons" by the constitution. More than this is done continually by Congress and every other Legislature. Property the most absolute and unqualified, is annihilated by legislative acts. The embargo and non-intercourse act, levelled at a stroke a forest of shipping, and sunk millions of capital. To say nothing of the power of Congress to take hundreds of millions from the people by direct taxation, who doubts its power to abolish at once the whole tariff system, change the seat of Government, arrest the progress of national works, prohibit any branch of commerce with the Indian tribes or with foreign nations, change the locality of forts, arsenals, magazines and dock yards; abolish the Post Office system, and the privilege of patents and copyrights? By such acts Congress might, in the exercise of its acknowledged powers, annihilate property to an incalculable amount, and that without becoming liable to claims for compensation.
Finally, this clause prohibits the taking for public use of "property." The constitution of the United States does not recognize slaves as "PROPERTY" any where, and it does not recognize them in any sense in the District of Columbia. All allusions to them in the constitution recognize them as "persons." Every reference to them points solely to the element of personality; and thus, by the strongest implication, declares that the constitution knows them only as "persons," and will not recognize them in any other light. If they escape into free States, the constitution authorizes their being taken back. But how? Not as the property of an "owner," but as "persons;" and the peculiarity of the expression is a marked recognition of their personality--a refusal to recognize them as chattels--"persons held to service." Are oxen "held to service?" That can be affirmed only of persons. Again, slaves give political power as "persons." The constitution, in settling the principle of representation, requires their enumeration in the census. How? As property? Then why not include race horses and game cocks? Slaves, like other inhabitants, are enumerated as "persons." So by the constitution, the government was pledged to non-interference with "the migration or importation of such persons" as the States might think proper to admit until 1808, and authorized the laying of a tax on each "person" so admitted. Further, slaves are recognized as persons by the exaction of their allegiance to the government. For offences against the government slaves are tried as persons; as persons they are entitled to counsel for their defence, to the rules of evidence, and to "due process of law," and as persons they are punished. True, they are loaded with cruel disabilities in courts of law, such as greatly obstruct and often inevitably defeat the ends of justice, yet they are still recognized as persons. Even in the legislation of Congress, and in the diplomacy of the general government, notwithstanding the frequent and wide departures from the integrity of the constitution on this subject, slaves are not recognized as property without qualification. Congress has always refused to grant compensation for slaves killed or taken by the enemy, even when these slaves had been impressed into the United States' service. In half a score of cases since the last war, Congress has rejected such applications for compensation. Besides, both in Congressional acts, and in our national diplomacy, slaves and property are not used as convertible terms. When mentioned in treaties and state papers it is in such a way as to distinguish them from mere property, and generally by a recognition of their personality. In the invariable recognition of slaves as persons, the United States' constitution caught the mantle of the glorious Declaration, and most worthily wears it. It recognizes all human beings as "men," "persons," and thus as "equals." In the original draft of the Declaration, as it came from the hand of Jefferson, it is alleged that Great Britain had "waged a cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people, carrying them into slavery, * * determined to keep up a market where MEN should be bought and sold,"--thus disdaining to make the charter of freedom a warrant for the arrest of men, that they might be shorn both of liberty and humanity.
The celebrated Roger Sherman, one of the committee of five appointed to draft the Declaration of Independence, and a member of the convention that formed the United States' constitution, said, in the first Congress after its adoption: "The constitution does not consider these persons, (slaves,) as a species of property."--[Lloyd's Cong. Reg. v. 1, p. 313.] That the United States' Constitution does not make slaves "property," is shown in the fact, that no person, either as a citizen of the United States, or by having his domicile within the United States' government, can hold slaves. He can hold them only by deriving his power from state laws, or from the laws of Congress, if he hold slaves within the District. But no person resident within the United States' jurisdiction, and not within the District, nor within a state whose laws support slavery, nor "held to service" under the laws of such a state or district, having escaped therefrom, can be held as a slave.
Men can hold property under the United States' government though residing beyond the bounds of any state, district, or territory. An inhabitant of the Iowa Territory can hold property there under the laws of the United States, but he cannot hold slaves there under the United States' laws, nor by virtue of the United States' Constitution, nor upon the ground of his United States' citizenship, nor by having his domicile within the United States' jurisdiction. The constitution no where recognizes the right to "slave property," but merely the fact that the states have jurisdiction each in its own limits, and that there are certain "persons" within their jurisdictions "held to service" by their own laws.
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 forestalled 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 estate--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 revel upon their spoils under the license, and by the ministration 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 in the District it has none to protect another--none to protect any--and if it can protect one man and is bound to do it, it can protect every man--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 blacks against whites, as in that of defending whites against blacks. The power is also conferred 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 interest? 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 the 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 there when the public safety requires it, it may 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, and archives of the Departments of State, Treasury, War, and Navy, the General Post-office, and Patent office. It is also the residence of the President, of all the highest officers of the government, of both houses of Congress, and of 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.