Part 23

There is yet another link. In the discussions which took place in the local conventions on the adoption of the Constitution, a sensitive desire was manifested to surround all persons under the Constitution with additional safeguards. Fears were expressed, from the supposed indefiniteness of some of the powers conceded to the National Government, and also from the absence of a Bill of Rights. Massachusetts, on ratifying the Constitution, proposed a series of amendments, at the head of which was this, characterized by Samuel Adams, in the Convention, as "A Summary of a Bill of Rights":--

"That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised."[150]

New Hampshire, New York, Rhode Island, Virginia, South Carolina, and North Carolina, with minorities in Pennsylvania and Maryland, united in this proposition. In pursuance of these recommendations, the First Congress presented for adoption the following article, which, being ratified by the proper number of States, became part of the Constitution as the Tenth Amendment:--

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

[150] Debates, etc., of the Massachusetts Convention, February 1 and 6, 1788. Elliot's Debates, Vol. IV. p. 211.

Stronger words could not be employed to limit the power under the Constitution, and to protect the people from all assumptions of the National Government, _particularly in derogation of Freedom_. Its guardian character commended it to the sagacious mind of Jefferson, who said: "I consider the foundation of the Constitution as laid on this ground."[151] And Samuel Adams, ever watchful for Freedom, said: "It removes a doubt which many have entertained respecting this matter, and gives assurance, that, _if any law made by the federal Government shall be extended beyond the power granted by the proposed Constitution_, and inconsistent with the Constitution of this State, it will be an error, and adjudged by the courts of law to be void."[152]

[151] Opinion against the Constitutionality of a National Bank, Feb. 15, 1791: Memoir, Correspondence, etc., Vol. IV. p. 523; Writings, Vol. VII. p. 556. See also Letter to Judge Johnson, June 12, 1823: Memoir, Correspondence, etc., Vol. IV. p. 374; Works, Vol. VII. p. 297.

[152] Debates, etc., of the Massachusetts Convention, February 1, 1788. See also Life of Samuel Adams, by William V. Wells, Vol. III. pp. 271, 272, 325, 331.

Beyond all question, the National Government, ordained by the Constitution, is not general or universal, but special and particular. It is a government of limited powers. It has no power which is not delegated. Especially is this clear with regard to an institution like Slavery. The Constitution contains no power to make a king, or to support kingly rule. With similar reason it may be said, that it contains no power to make a slave, or to support a system of Slavery. The absence of all such power is hardly more clear in the one case than in the other. But if there be no such power, all national legislation upholding Slavery must be unconstitutional and void. The stream cannot be higher than the fountain-head. Nay, more, _nothing can come out of nothing_; the stream cannot exist, if there be no spring from which it is fed.

* * * * *

At the risk of repetition, but for the sake of clearness, review now this argument, and gather it together. Considering that Slavery is of such an offensive character that it can find sanction only in "positive law," and that it has no such "positive" sanction in the Constitution,--that the Constitution, according to its Preamble, was ordained to "establish justice" and "secure the blessings of liberty,"--that, in the Convention which framed it, and also elsewhere at the time, it was declared not to sanction Slavery,--that, according to the Declaration of Independence, and the Address of the Continental Congress, the Nation was dedicated to "Liberty," and the "rights of human nature,"--that, according to the principles of the Common Law, the Constitution must be interpreted openly, actively, and perpetually for Freedom,--that, according to the decision of the Supreme Court, it acts upon slaves, _not as property_, but as PERSONS,--that, at the first organization of the National Government under Washington, Slavery had no national favor, existed nowhere on the national territory, beneath the national flag, but was openly condemned by Nation, Church, Colleges, and Literature of the time,--and, finally, that, according to an Amendment of the Constitution, the National Government can exercise only powers delegated to it, among which is none to support Slavery,--considering these things, Sir, it is impossible to avoid the single conclusion, that Slavery is in no respect a national institution, and that the Constitution nowhere upholds property in man.

* * * * *

There is one other special provision of the Constitution, which I have reserved to this stage, not so much from its superior importance, but because it fitly stands by itself. This alone, if practically applied, would carry Freedom to all within its influence. It is an Amendment proposed by the First Congress, as follows:--

"No _person_ shall be deprived of life, _liberty_, or property, _without due process of law_."

Under this great ægis the liberty of every person within the national jurisdiction is unequivocally placed. I say every person. Of this there can be no question. The word "person" in the Constitution embraces every human being within its sphere, whether Caucasian, Indian, or African, from the President to the slave. Show me a person within the national jurisdiction, and I confidently claim for him this protection, no matter what his condition or race or color. The natural meaning of the clause is clear, but a single fact of its history places it in the broad light of noon. As originally recommended by Virginia, North Carolina, and Rhode Island, it was restricted to the _freeman_. Its language was, "No _freeman_ ought to be deprived of his life, _liberty_, or property, but by the law of the land."[153] In rejecting this limitation, the authors of the Amendment revealed their purpose, that no person, under the National Government, of whatever character, should be deprived of liberty without due process of law,--that is, without due presentment, indictment, or other judicial proceeding. But this Amendment is nothing less than an express guaranty of Personal Liberty, and an express prohibition of its invasion anywhere, at least within the national jurisdiction.

[153] Journal of Federal Convention, Supplement, pp. 419, 441, 455. Elliot's Debates, II. 484, III. 211, IV. 223.

* * * * *

Sir, apply these principles, and Slavery will again be as when Washington took his first oath as President. The Union Flag of the Republic will become once more the flag of Freedom, and at all points within the national jurisdiction will refuse to cover a slave. Beneath its beneficent folds, wherever it is carried, on land or sea, Slavery will disappear, like darkness under the arrows of the ascending sun,--like the Spirit of Evil before the Angel of the Lord.

In all national territories Slavery will be impossible.

On the high seas, under the national flag, Slavery will be impossible.

In the District of Columbia Slavery will instantly cease.

Inspired by these principles, Congress can give no sanction to Slavery by the admission of new Slave States.

Nowhere under the Constitution can the Nation, by legislation or otherwise, support Slavery, hunt slaves, or hold property in man.

Such, Sir, are my sincere convictions. According to the Constitution, as I understand it, in the light of the Past and of its true principles, there is no other conclusion which is rational or tenable, which does not defy authoritative rules of interpretation, does not falsify indisputable facts of history, does not affront the public opinion in which it had its birth, and does not dishonor the memory of the Fathers. And yet politicians of the hour undertake to place these convictions under formal ban. The generous sentiments which filled the early patriots, and impressed upon the government they founded, as upon the coin they circulated, the image and superscription of LIBERTY, have lost their power. The slave-masters, few in number, amounting to not more than three hundred and fifty thousand, according to the recent census, have succeeded in dictating the policy of the National Government, and have written SLAVERY on its front. The change, which began in the desire for wealth, was aggravated by the desire for political predominance.[154] Through Slavery the cotton crop increased, with its enriching gains; through Slavery States became part of the Slave Power. And now an arrogant and unrelenting ostracism is applied, not only to all who express themselves against Slavery, but to every man unwilling to be its menial. A novel test for office is introduced, which would have excluded all the Fathers of the Republic,--even Washington, Jefferson, and Franklin! Yes, Sir! Startling it may be, but indisputable. Could these revered demigods of history once again descend upon earth and mingle in our affairs, not one of them could receive a nomination from the National Convention of either of the two old political parties! Out of the convictions of their hearts and the utterances of their lips against Slavery they would be condemned.

This single fact reveals the extent to which the National Government has departed from its true course and its great examples. For myself, I know no better aim under the Constitution than to bring the Government back to the precise position on this question it occupied on the auspicious morning of its first organization by Washington,--

"Nunc retrorsum Vela dare, atque iterare cursus . . . . relictos,"[155]--

that the sentiments of the Fathers may again prevail with our rulers, and the National Flag may nowhere shelter Slavery.

[154] The same progression in ancient Rome arrested the observation of Sallust: "Primo pecuniæ, dein imperii cupido crevit. Ea quasi materies omnium malorum fuere."--_Catilina_, c. 10

[155] Hor., Carm. I. xxxiv. 3-5.

To such as count this aspiration unreasonable let me commend a renowned and life-giving precedent of English history. As early as the days of Queen Elizabeth, a courtier boasted that the air of England was too pure for a slave to breathe,[156] and the Common Law was said to forbid Slavery. And yet, in the face of this vaunt, kindred to that of our fathers, and so truly honorable, slaves were introduced from the West Indies. The custom of Slavery gradually prevailed. Its positive legality was affirmed, in professional opinions, by two eminent lawyers, Talbot and Yorke, each afterwards Lord Chancellor. It was also affirmed on the bench by the latter as Lord Hardwicke.[157] England was already a Slave State. The following advertisement, copied from a London newspaper, _The Public Advertiser_, of November 22, 1769, shows that the journals there were disfigured as some of ours, even in the District of Columbia.

"To be sold, a black girl, the property of J.B., eleven years of age, who is extremely handy, works at her needle tolerably, and speaks English perfectly well; is of an excellent temper and willing disposition. Inquire of her owner at the Angel Inn, behind St. Clement's Church, in the Strand."

[156] Case of Sommersett, Howell's State Trials, XX. 51.

[157] Ibid., 81.

At last, in 1772, only three years after this advertisement, the single question of the legality of Slavery was presented to Lord Mansfield, on a writ of _Habeas Corpus_. A poor negro, named Sommersett, brought to England as a slave, became ill, and, with an inhumanity disgraceful even to Slavery, was turned adrift upon the world. Through the charity of an estimable man, the eminent Abolitionist, Granville Sharp, he was restored to health, when his unfeeling and avaricious master again claimed him as bondman. The claim was repelled. After elaborate and protracted discussion in Westminster Hall, marked by rarest learning and ability, Lord Mansfield, with discreditable reluctance, sullying his great judicial name, but in trembling obedience to the genius of the British Constitution, pronounced a decree which made the early boast a practical verity, and rendered Slavery forever impossible in England. More than fourteen thousand persons, at that time held as slaves, and breathing English air,--four times as many as are now found in this national metropolis,--stepped forth in the happiness and dignity of freemen.

With this guiding example I cannot despair. The time will yet come when the boast of our fathers will be made a practical verity also, and Court or Congress, in the spirit of this British judgment, will proudly declare that nowhere under the Constitution can man hold property in man. For the Republic such a decree will be the way of peace and safety. As Slavery is banished from the national jurisdiction, it will cease to vex our national politics. It may linger in the States as a local institution; but it will no longer engender national animosities, when it no longer demands national support.

II.

From this general review of the relations of the National Government to Slavery, I pass to the consideration of THE TRUE NATURE OF THE PROVISION FOR THE RENDITION OF FUGITIVES FROM SERVICE, embracing an examination of this provision in the Constitution, and especially of the recent Act of Congress in pursuance thereof. As I begin this discussion, let me bespeak anew your candor. Not in prejudice, but in the light of history and of reason, we must consider this subject. The way will then be easy, and the conclusion certain.

Much error arises from the exaggerated importance now attached to this provision, and from assumptions with regard to its origin and primitive character. It is often asserted that it was suggested by some special difficulty, which had become practically and extensively felt, anterior to the Constitution. But this is one of the myths or fables with which the supporters of Slavery have surrounded their false god. In the Articles of Confederation, while provision is made for the surrender of fugitive criminals, nothing is said of fugitive slaves or servants; and there is no evidence in any quarter, until after the National Convention, of hardship or solicitude on this account. No previous voice was heard to express desire for any provision on the subject. The story to the contrary is a modern fiction.

I put aside, as equally fabulous, the common saying, that this provision was one of the original compromises of the Constitution, and an essential condition of Union. Though sanctioned by eminent judicial opinions, it will be found that this statement is hastily made, without any support in the records of the Convention, the only authentic evidence of the compromises; nor will it be easy to find any authority for it in any contemporary document, speech, published letter, or pamphlet of any kind. It is true that there were compromises at the formation of the Constitution, which were the subject of anxious debate; but this was not one of them.

There was a compromise between the small and large States, by which equality was secured to all the States in the Senate.

There was another compromise finally carried, under threats from the South, _on the motion of a New England member_, by which the Slave States are allowed Representatives according to the whole number of free persons and "three fifths of all other persons,"[158] thus securing political power on account of their slaves, in consideration that direct taxes should be apportioned in the same way. Direct taxes have been imposed at only four brief intervals. The political power has been constant, and at this moment sends twenty-one members to the other House.

[158] Madison's Debates, July 12, 1787.

There was a third compromise, not to be mentioned without shame. It was that hateful bargain by which Congress was restrained until 1808 from the prohibition of the foreign slave-trade, thus securing, down to that period, toleration for crime. This was pertinaciously pressed by the South, even to the extent of absolute restriction on Congress. John Rutledge said: "If the Convention thinks that North Carolina, South Carolina, and Georgia will ever agree to the Plan [the National Constitution], unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest." Charles Pinckney said: "South Carolina can never receive the Plan, if it prohibits the slave-trade." Charles Cotesworth Pinckney "thought himself bound to declare candidly, that he did not think South Carolina would stop her importations of slaves in any short time."[159] The effrontery of the slave-masters was matched by the sordidness of the Eastern members, who yielded again. Luther Martin, the eminent member of the Convention, in his contemporary address to the Legislature of Maryland, described the compromise. "I found," he said, "the Eastern States, notwithstanding their aversion to Slavery, were very willing to indulge the Southern States at least with a temporary liberty to prosecute the slave-trade, _provided the Southern States would in their turn gratify them by laying no restriction on navigation acts_."[160] The bargain was struck, and at this price the Southern States gained the detestable indulgence. At a subsequent day Congress branded the slave-trade as piracy, and thus, by solemn legislative act, adjudged this compromise to be felonious and wicked.

[159] Madison's Debates, August 21 and 22, 1787.

[160] The Genuine Information delivered to the Legislature of Maryland, etc. p. 36: Appended to Vol. IV. Elliot's Debates.

Such are the three chief original compromises of the Constitution and essential conditions of Union. The case of fugitives from service is not of these. During the Convention it was not in any way associated with these. Nor is there any evidence from the records of this body, that the provision on this subject was regarded with any peculiar interest. As its absence from the Articles of Confederation had not been the occasion of solicitude or desire, anterior to the National Convention, so it did not enter into any of the original plans of the Constitution. It was introduced tardily, at a late period of the Convention, and adopted with very little and most casual discussion. A few facts show how utterly unfounded are recent assumptions.

The National Convention was convoked to meet at Philadelphia on the second Monday in May, 1787. Several members appeared at this time, but, a majority of the States not being represented, those present adjourned from day to day until the 25th, when the Convention was organized by the choice of George Washington as President. On the 28th a few brief rules and orders were adopted. On the next day they commenced their great work.

On the same day, Edmund Randolph, of slaveholding Virginia, laid before the Convention a series of fifteen resolutions, containing his plan for the establishment of a New National Government. Here was no allusion to fugitive slaves.

Also, on the same day, Charles Pinckney, of slaveholding South Carolina, laid before the Convention what was called "A Draft of a Federal Government, to be agreed upon between the Free and Independent States of America," an elaborate paper, marked by considerable minuteness of detail. Here are provisions, borrowed from the Articles of Confederation, securing to the citizens of each State equal privileges in the several States, giving faith to the public records of the States, and ordaining the surrender of fugitives from justice. But this draft, though from the flaming guardian of the slave interest, contained no allusion to fugitive slaves.

In the course of the Convention other plans were brought forward: on the 15th June, a series of eleven propositions by Mr. Patterson, of New Jersey, "so as to render the Federal Constitution adequate to the exigencies of Government and the preservation of the Union"; on the 18th June, eleven propositions by Mr. Hamilton, of New York, "containing his ideas of a suitable plan of Government for the United States"; and on the 19th June, Mr. Randolph's resolutions, originally offered on the 29th May, "as altered, amended, and agreed to in Committee of the Whole House." On the 26th July, twenty-three resolutions, already adopted on different days in the Convention, were referred to a "Committee of Detail," for reduction to the form of a Constitution. On the 6th August this Committee reported the finished draft of a Constitution. And yet in all these resolutions, plans, and drafts, _seven_ in number, proceeding from eminent members and from able committees, no allusion is made to fugitive slaves. For three months the Convention was in session, and not a word uttered on this subject.

At last, on the 28th August, as the Convention was drawing to a close, on the consideration of the article providing for the privileges of citizens in different States, we meet the first reference to this matter, in words worthy of note. "General [Charles Cotesworth] Pinckney was not satisfied with it. He SEEMED _to wish some provision_ should be included in favor of property in slaves." _But he made no proposition._ Unwilling to shock the Convention, and uncertain in his own mind, he only _seemed_ to wish such a provision. In this vague expression of a vague desire this idea first appeared. In this modest, hesitating phrase is the germ of the audacious, unhesitating Slave Act. Here is the little vapor, which has since swollen, as in the Arabian tale, to the power and dimensions of a giant. The next article under discussion provided for the surrender of fugitives from justice. Mr. Butler and Mr. Charles Pinckney, both from South Carolina, now moved openly to require "fugitive slaves and servants to be delivered up like criminals." Here was no disguise. With Hamlet, it was now said in spirit,--

"_Seems_, Madam! Nay, it is. I know not _seems_."

But the very boldness of the effort drew attention and opposition. Mr. Wilson, of Pennsylvania, the learned jurist and excellent man, at once objected: "This would oblige the Executive of the State to do it at the public expense." Mr. Sherman, of Connecticut, "saw no more propriety in the public seizing and surrendering a slave or servant than a horse." Under the pressure of these objections, _the offensive proposition was withdrawn_,--never more to be renewed. The article for the surrender of criminals was then unanimously adopted.[161] On the next day, 29th August, profiting by the suggestions already made, Mr. Butler moved a proposition,--substantially like that now found in the Constitution,--for the surrender, not of "fugitive slaves," as originally proposed, but simply of "persons bound to service or labor," which, without debate or opposition of any kind, was unanimously adopted.[162]

[161] "Agreed to, _nem. con._," are Madison's words.

[162] "Agreed to, _nem. con._," are again Madison's words.