Part 16

It hardly comports with the gravity of this debate to dwell on such an argument; and yet I cannot go wrong, if, for the sake of a much injured race, I brush it away. To justify the Senator in his application of this ancient curse, he must maintain at least five different propositions, as essential links in the chain of the Afric-American slave: _first_, that by this malediction Canaan himself was actually changed into a “chattel,”--whereas he is simply made the “servant” of his brethren; _secondly_, that not merely Canaan, but all his posterity, to the remotest generation, was so changed,--whereas the language has no such extent; _thirdly_, that the Afric-American actually belongs to the posterity of Canaan,--an ethnological assumption absurdly difficult to establish; _fourthly_, that each of the descendants of Shem and Japheth has a right to hold an Afric-American fellow-man as a “chattel,”--a proposition which finds no semblance of support; and, _fifthly_, that every Slave-Master is truly descended from Shem or Japheth,--a pedigree which no anxiety can establish. This plain analysis, which may fitly excite a smile, shows the fivefold absurdity of an attempt to found this pretension on any

“successive title, long and dark, Drawn from the mouldy rolls of Noah’s ark.”[126]

From the character of these two arguments for property in man, I am brought to its denial.

* * * * *

It is natural that Senators who pretend, that, by the Law of Nature, man may hold property in man, should find this pretension in the Constitution. But the pretension is as much without foundation in the Constitution as it is without foundation in Nature. It is not too much to say that there is not one sentence, phrase, or word, not a single suggestion, hint, or equivocation, even, out of which any such pretension can be implied,--while great national acts and important contemporaneous declarations in the Convention which framed the Constitution, in different forms of language, and also controlling rules of interpretation, render this pretension impossible. Partisans, taking counsel of their desires, find in the Constitution, as in the Scriptures, what they incline to find; and never was this more apparent than when Slave-Masters deceive themselves so far as to find in the Constitution a pretension which exists only in their own minds.

Looking for one moment juridically at this question, we are brought to the conclusion, according to the admission of courts and jurists, first in Europe, and then in our own country, that Slavery can be derived from no doubtful word or mere pretension, but only from clear and special recognition. “The state of Slavery,” said Lord Mansfield, pronouncing judgment in the great case of Somerset, “is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by _positive law_. It is so odious that nothing can be suffered to support it but POSITIVE LAW,”--that is, express words of a written text; and this principle, which commends itself to the enlightened reason, is adopted by several courts in the Slave States. Of course every leaning must be against Slavery. A pretension so peculiar and offensive, so hostile to reason, so repugnant to the Laws of Nature and the inborn Rights of Man, which, in all its fivefold wrong, has no other object than to compel fellow-men to work without wages,--such a pretension, so tyrannical, so unjust, so mean, so barbarous, can find no place in any system of Government, unless by virtue of _positive sanction_. It can spring from no doubtful phrase. It must be declared by unambiguous words, incapable of a double sense.

At the adoption of the Constitution, this rule, promulgated in the Court of King’s Bench by the voice of the most finished magistrate in English history, was as well known in our country as any principle of the Common Law; especially was it known to the eminent lawyers in the Convention; nor is it too much to say that the Constitution was framed with this rule on Slavery as a guide. And the Supreme Court of the United States, at a later day, by the lips of Chief-Justice Marshall, promulgated this same rule, in words stronger even than those of Lord Mansfield, saying: “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with _irresistible clearness_, to induce a court of justice to suppose a design to effect such objects.”[127] It is well known, however, that these two declarations are little more than new forms for the ancient rule of the Common Law, as expressed by Fortescue: _Impius et crudelis judicandus est qui Libertati non favet_: “He is to be adjudged impious and cruel who does not favor Liberty,”[128]--and as expressed by Blackstone, “The law is always ready to catch at anything in favor of Liberty.”[129]

But, as no prescription runs against the King, so no prescription is allowed to run against Slavery, while all the early victories of Freedom are set aside by the Slave-Masters of to-day. The prohibition of Slavery in the Missouri Territory, and all the precedents, legislative and judicial, for the exercise of this power, admitted from the beginning until now, are overturned. At last, bolder grown, Slave-Masters do not hesitate to assail that principle of jurisprudence which makes Slavery the creature of “positive law” alone, to be upheld only by words of “irresistible clearness.” The case of Somerset, in which this great rule was declared, is impeached on this floor, as the Declaration of Independence is also impeached. And here the Senator from Louisiana [Mr. BENJAMIN] takes the lead, with the assertion, that in the history of English law there are earlier cases, where a contrary principle was declared. Permit me to say that no such cases, even if hunted up in authentic reports, can impair the influence of this well-considered authority. The Senator knows well that an old and barbarous case is a poor answer to a principle brought into activity by the demands of advancing Civilization, and which, once recognized, can never be denied. Pardon me, if I remind him that Jurisprudence is not a dark-lantern, shining in a narrow circle, and never changing, but a gladsome light, which, slowly emerging from original darkness, grows and spreads with human improvement, until at last it becomes as broad and general as the Light of Day. When the Senator, in this age, leaguing all his forces, undertakes to drag down that immortal principle which made Slavery impossible in England, as, thank God! it makes Slavery impossible under the Constitution, he vainly tugs to drag down a luminary from the sky.

The enormity of the pretension that Slavery is sanctioned by the Constitution becomes still more flagrant, when we read the Constitution in the light of great national acts and of contemporaneous authorities. First comes the Declaration of Independence, the illuminated initial letter of our history, which in familiar words announces “that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are Life, _Liberty_, and the Pursuit of Happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.” Nor does this Declaration, binding the consciences of all who enjoy the privileges it secured, stand alone. There is another national act, less known, but in itself a key to the first, when, at the successful close of the Revolution, the Continental Congress, in a solemn Address to the States, grandly announced: “Let it be remembered that it has ever been the pride and boast of America, _that the rights for which she contended were the Rights of Human Nature_. By the blessing of the Author of _these rights_ on the means exerted for their defence, they have prevailed against all opposition, and form THE BASIS of thirteen independent States.”[130] Now, whatever may be the privileges of States in their individual capacities, within their several local jurisdictions, no power can be attributed to the nation, in the absence of positive, unequivocal grant, inconsistent with these two national declarations. Here is the national heart, the national soul, the national will, the national voice, which must inspire our interpretation of the Constitution, and enter into and diffuse itself through all the national legislation. Such are commanding authorities which make “Life, Liberty, and the Pursuit of Happiness,” and, in more general words, “the Rights of Human Nature,” as the basis of our national institutions, without distinction of race, or absurd recognition of the curse of Ham.

In strict harmony with these are the many utterances in the Convention which framed the Constitution: of Gouverneur Morris, of Pennsylvania, who announced that “_he never would concur in upholding Domestic Slavery_; it was a nefarious institution”;[131] of Elbridge Gerry, of Massachusetts, who said that “we had nothing to do with the conduct of the States as to slaves, _but ought to be careful not to give any sanction to it_”;[132] of Roger Sherman and Oliver Ellsworth, of Connecticut, and Mr. Gorham, of Massachusetts, who all concurred with Mr. Gerry;[133] and especially of Mr. Madison, of Virginia, who, in a phrase which cannot be quoted too often, “THOUGHT IT WRONG TO ADMIT IN THE CONSTITUTION THE IDEA THAT THERE COULD BE PROPERTY IN MEN.”[134] And, lastly, as if to complete the elaborate work of Freedom, and to embody all these utterances, the word “servitude,” which had been allowed in the clause on the apportionment of Representatives, was struck out, and the word “service” substituted. This final and total exclusion from the Constitution of the idea of property in man was on the motion of Mr. Randolph, of Virginia; and the reason assigned for the substitution, according to Mr. Madison, in his authentic report of the debate, was, that “the former was thought to express the condition of slaves, and the latter _the obligations of free persons_.”[135] Thus, at every point, by great national declarations, by frank utterances in the Convention, and by positive act in adjusting the text of the Constitution, was the idea of property in man unequivocally rejected.

This pretension, which may be dismissed as utterly baseless, becomes absurd, when it is considered to what result it necessarily conducts. If the Barbarism of Slavery, in all its fivefold wrong, is really embodied in the Constitution, so as to be beyond reach of prohibition, either Congressional or local, in the Territories, then, for the same reason, it must be beyond reach of prohibition, even by local authority, in the States themselves, and, just so long as the Constitution continues unchanged, Territories and States alike must be exposed to all its blasting influences. Do we not witness this result in open attempts now made by Slave-Masters to travel with their slaves in the Free States? Calling the slave-roll in the shadow of Bunker Hill, according to well-known menace, will be the triumph of this consummation. And yet this pretension, which in natural consequences overturns State Rights, is announced by Senators who profess to be special guardians of State Rights.

Nor does this pretension derive any support from the much debated clause in the Constitution for the rendition of fugitives from “service or labor,” on which so much stress is constantly put. I do not occupy your time now on this head for two reasons: first, because, having on a former occasion exhibited with great fulness the character of that clause, I am unwilling now thus incidentally to open the question upon it; and, secondly, because, whatever may be its character,--admitting that it confers power upon Congress,--and admitting, also, what is often denied, that, in defiance of commanding rules of interpretation, the equivocal words there employed have that “irresistible clearness” which is necessary in taking away Human Rights,--yet nothing can be clearer than that the fugitives, whosoever they be, are regarded under the Constitution as _persons_, and not as _property_.

I disdain to dwell on that other argument, brought forward by Senators, who, denying the Equality of Men, speciously assert the Equality of the States, and from this principle, true in many respects, jump to the conclusion, that Slave-Masters are entitled, in the name of Equality, to take slaves into the National Territories, under solemn safeguard of the Constitution. This argument comes back to the first pretension, that slaves are recognized as “property” in the Constitution. To that pretension, already amply exposed, we are always brought, nor can any sounding allegation of State Equality avoid it. And yet this very argument betrays the inconsistency of its authors. If persons held to service in the Slave States are “property” under the Constitution, then under the provision known as “the three-fifths rule,” which founds representation in the other House on such persons, there is a _property representation_ from the Slave States, with voice and vote, while there is no such _property representation_ from the Free States. With glaring inequality, the representation of Slave States is founded, first, on “persons,” and, secondly, on a large part of their pretended property, while the representation of the Free States is founded simply on “persons,” leaving all their boundless millions of property unrepresented. Thus, whichever way we approach it, the absurdity of this pretension becomes manifest. Assuming the pretension of property in man under the Constitution, you upset the whole theory of State Equality, for you disclose a gigantic inequality between the Slave States and the Free States; and assuming the Equality of States, in the House of Representatives as elsewhere, you upset the whole pretension of property in man under the Constitution.

Nor will I deign to dwell on one other argument, which, in the name of Popular Sovereignty, undertakes to secure for the people in the Territories the wicked power--sometimes, by confusion of terms, called “right”--to enslave their fellow-men: as if this pretension was not crushed at once by the Declaration of Independence, when it announced that all governments “derive their just powers from the consent of the governed”; and as if anywhere within the jurisdiction of the Constitution, which contains no sentence, phrase, or word sanctioning this outrage, and which carefully excludes the idea of property in man, while it surrounds all persons with the highest safeguards of a citizen, such pretension could exist. Whatever it may be elsewhere, Popular Sovereignty within the sphere of the Constitution has its limitations. Claiming for all the largest liberty of a true Civilization, it compresses all within the constraints of Justice; nor does it allow any man to assert a right to do what he pleases, except when he pleases to do right. As well within the Territories attempt to make a king as attempt to make a slave. Beyond all doubt, no majority can be permitted to pass on the question, whether fellow-men shall be bought and sold like cattle. There are rights which cannot be “voted up” or “voted down,” according to phrases of the Senator from Illinois [Mr. DOUGLAS], for they are above all votes. The very act of voting upon the question of reducing men to bondage is a heinous wrong, for it assumes that we may do unto others what we would not have them do unto us. But this pretension,--rejected alike by every Slave-Master and by every lover of Freedom,--

“Where I behold a factious band agree To call it Freedom, when themselves are free,”[136]--

proceeding originally from vain effort to avoid the impending question between Freedom and Slavery,--assuming a delusive phrase of Freedom as a cloak for Slavery,--speaking with the voice of Jacob, while its hands are the hands of Esau,--and, by plausible nickname, enabling politicians sometimes to deceive the public, and sometimes even to deceive themselves,--may be dismissed with other kindred pretensions for Slavery; while the Senator from Illinois [Mr. DOUGLAS], who, if not inventor, has been its boldest defender, will learn that Slave-Masters, for whom he has done so much, cannot afford to be generous,--that their gratitude is founded on what they expect, and not on what they receive,--and that, having its root in desire rather than in fruition, it necessarily withers and dies with the power to serve them. The Senator, revolving these things, may confess the difficulty of his position, and perhaps

“remember Milo’s end, Wedged in that timber which he strove to rend.”[137]

The pretension that in the Territories Slavery may be “voted up” or “voted down,” as the few people there see fit, is a novelty, and its partisans, besides a general oblivion of great principles, most strangely forget the power of Congress “to regulate commerce with foreign nations and among the several States,” limited only by temporary exception in favor of “the migration or importation of such persons as any of the States now existing shall think proper to admit” until 1808. These express words, solemnly accepted as part of the Constitution, attest the power of Congress to prevent “the migration” of slaves into the Territories. The migration or importation of slaves into any State existing at the adoption of the Constitution was tolerated until 1808; but from that date the power of Congress became plenary to prohibit their “importation” from abroad or “migration” among existing States, while from the beginning this power was plenary to prevent their “migration” into the Territories. And as early as 1804 Congress exercised this power, by providing that no slave should be introduced into the Territory of Orleans, except by a citizen of the United States removing thither for actual settlement, and at the time _bonâ fide_ owner of such slave; and every slave imported or brought into the Territory, contrary to this provision, is declared free.[138] In this unquestioned exercise of a beneficent power, at a time when the authors of the Constitution were still on the stage, and the temporary exception in favor of existing States was in force, we have a precedent of unanswerable authority, establishing the power of Congress to exclude Slavery from the Territories, even if it be assumed, that, under the Constitution, this five-headed Barbarism can find place anywhere within the exclusive jurisdiction of the Nation.

* * * * *

Here I close this branch of the argument, which I have treated less fully than the first, partly because time and strength fail me, but chiefly because the Barbarism of Slavery, when fully established, supersedes all other inquiry. Enough is done on this head. At the risk of repetition, I gather it together. The assumption, that Slave-Masters, under the Constitution, may take their slaves into Territories and continue to hold them as in States, stands on two pretensions,--first, that man may hold property in man, and, secondly, that this property is recognized in the Constitution. But we have seen that the pretended property in man stands on no reason, while the two special arguments by which it is asserted--first, an alleged inferiority of race, and, secondly, the ancient curse of Ham--are grossly insufficient to uphold such pretension. And we have next seen that this pretension has as little support in the Constitution as in reason; that Slavery is of such an offensive character, that it can find support only in “positive” sanction, and words of “irresistible clearness”; that this benign rule, questioned in the Senate, is consistent with the principles of an advanced Civilization; that no such “positive” sanction, in words of “irresistible clearness,” can be found in the Constitution, while, in harmony with the Declaration of Independence, and the Address of the Continental Congress, the contemporaneous declarations in the Convention, and especially the act of the Convention substituting “service” for “servitude,” on the ground that the latter expressed “the condition of slaves,” all attest that the pretension that man can hold property in man was carefully, scrupulously, and completely excluded from the Constitution, so that it has no semblance of support in that sacred text; nor is this pretension, which is unsupported in the Constitution, helped by the two arguments, one in the name of State Equality, and the other in the name of Popular Sovereignty, both of which are properly put aside.

* * * * *

Sir, the true principle, which, reversing all assumptions of Slave-Masters, makes Freedom _national_ and Slavery _sectional_, while every just claim of the Slave States is harmonized with the irresistible predominance of Freedom under the Constitution, was declared at Chicago.[139] Not questioning the right of each State, whether South Carolina or Turkey, Virginia or Russia, to order and control its domestic institutions according to its own judgment exclusively, the Convention there assembled has explicitly announced Freedom to be “the normal condition of all the territory of the United States,” and has explicitly denied “the authority of Congress, of a Territorial Legislature, or of any individuals, to give legal existence to Slavery in any Territory of the United States.” Such is the triumphant response by the aroused millions of the North to the assumption of Slave-Masters, that the Constitution, of its own force, carries Slavery into the Territories, and also to the device of politicians, that the people of the Territories, in the exercise of a dishonest Popular Sovereignty, may plant Slavery there. This response is complete at all points, whether the Constitution acts upon the Territories before their organization, or only afterward; for, in the absence of a Territorial Government, there can be no “positive” law in words of “irresistible clearness” for Slavery, as there can be no such law, when a Territorial Government is organized, under the Constitution. Thus the normal condition of the Territories is confirmed by the Constitution, which, when extended over them, renders Slavery impossible, while it writes upon the soil and engraves upon the rock everywhere the law of impartial Freedom, without distinction of color or race.

* * * * *

Mr. President, this argument is now closed. Pardon me for the time I have occupied. It is long since I made any such claim upon your attention. Pardon me, also, if I have said anything I ought not to have said. I have spoken frankly and from the heart,--if severely, yet only with the severity of a sorrowful candor, calling things by their right names, and letting historic facts tell their unimpeachable story. I have spoken in patriotic hope of contributing to the welfare of my country, and also in assured conviction that this utterance to-day will find response in generous souls. I believe that I have said nothing which is not sustained by well-founded argument or well-founded testimony, nothing which can be controverted without direct assault upon reason or upon truth.