Part 23

Under the Constitution, Congress has “exclusive legislation in all cases whatsoever” at the national capital. The cession by Maryland was without condition, and the acceptance by Congress was also without condition; so that the territory fell at once within this exclusive jurisdiction. But Congress can exercise no power except in conformity with the Constitution. Its exclusive jurisdiction in all cases whatsoever is controlled and limited by the Constitution, out of which it is derived. Now, looking at the Constitution, we find, first, that there are no words authorizing Congress to establish or recognize Slavery, and, secondly, that there are positive words which prohibit Congress from the exercise of any such power. The argument, therefore, is twofold: first, from the absence of authority, and, secondly, from positive prohibition.

Of course, a barbarism like Slavery, having its origin in force and nothing else, can have no legal or constitutional support except from positive sanction. It can spring from no doubtful phrase. It must be declared by unambiguous words, incapable of a double sense. Here I repeat an argument which I have presented before, when on other occasions arraigning the pretensions of Slavery under the Constitution, but which, so long as Slavery claims immunity, cannot be allowed to drop out of sight. It begins with the great words of Lord Mansfield, who, in the memorable case of Somerset, said: “The state of Slavery 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.”[234] This principle has been adopted by tribunals even in slaveholding States.[235] But I do not stop to dwell on these authorities. Even the language, “exclusive legislation in all cases whatsoever,” cannot be made to sanction Slavery. It wants those positive words, leaving nothing to implication, which are obviously required, especially when we consider the professed object of the Constitution, as declared in its Preamble, to “establish justice and secure the blessings of liberty.” There is no power in the Constitution to make a king, or, thank God, to make a slave; and the absence of all such power is hardly more clear in one case than in the other. The word _king_ nowhere occurs in the Constitution, nor does the word _slave_. But if there be no such power, then all Acts of Congress sustaining Slavery at the national capital must be unconstitutional and void. The stream cannot rise higher than the fountain head; nay, more, _nothing can come out of nothing_; and if there be nothing in the Constitution authorizing Congress to make a slave, there can be nothing valid in any subordinate legislation. It is a pretension which has thus far prevailed simply because Slavery predominated over Congress and courts.

To all who insist that Congress may sustain Slavery in the national capital I put the question, Where in the Constitution is the power found? If you cannot show where, do not assert the power. So hideous an effrontery must be authorized in unmistakable words. But where are the words? In what article, clause, or line? They cannot be found. I challenge their production. Insult not human nature by pretending that its most cherished rights can be sacrificed without solemn authority. Remember that every presumption and every leaning must be in favor of Freedom and against Slavery. Remember, too, that no nice interpretation, no strained construction, no fancied deduction, can suffice to sanction the enslavement of our fellow-men. And do not degrade the Constitution by foisting upon its blameless text the idea of property in man. It is not there; and if you think you see it there, it is simply because you make the Constitution a reflection of yourself.

A single illustration will show the absurdity of this pretension. If, under the clause giving to Congress “exclusive legislation” at the national capital, Slavery may be established, and under these words Congress is empowered to create slaves instead of citizens, then, under the same words, it may do the same thing in the “forts, magazines, arsenals, dock-yards, and other needful buildings” belonging to the United States, wherever situated, for these are all placed within the same “exclusive legislation.” The extensive navy-yard at Charlestown, in the very shadow of Bunker Hill, may be filled with slaves, with enforced toil to take the place of that cheerful, well-paid labor whose busy hum is the best music of the place. Such an act, however consistent with slaveholding tyranny, would not be regarded as constitutional at Bunker Hill.

If there were any doubt on this point, and the absence of all authority were not perfectly clear, the prohibitions of the Constitution would settle the question. It is true that Congress has “exclusive legislation” within the District; but the prohibitions to grant titles of nobility, to pass _ex post facto_ laws, to pass bills of attainder, and to establish religion, are unquestionable limitations of this power. There is also another limitation, equally unquestionable. It is found in an Amendment proposed by the First Congress, on the recommendation of several States, as follows:--

“No PERSON shall be deprived of life, LIBERTY, or property, without _due process of law_.”

This prohibition, according to the Supreme Court, is obligatory on Congress.[236] It is also applicable to all claimed as slaves; for, in the eye of the Constitution, every human being within its sphere, whether Caucasian, Indian, or African, from the President to the slave, is a _person_. Of this there is no question. But a remarkable incident of history confirms the conclusion. As originally recommended by Virginia, North Carolina, and Rhode Island, this proposition 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.”[237]

Of course, if the word _freeman_ had been adopted, this clause would be restricted in its effective power. Deliberately rejecting this limitation, the authors of the Amendment recorded their purpose that no _person_, within the national jurisdiction, of whatever character, shall be deprived of _liberty_ without due process of law. The latter words are borrowed from Magna Charta, and they mean without due presentment, indictment, or other judicial proceedings. But Congress, undertaking to support Slavery at the national capital, enacts that _persons_ may be deprived of liberty there without any presentment, indictment, or other judicial proceedings. Therefore every _person_ now detained as a slave in the national capital is detained in violation of the Constitution. Not only is his liberty taken without due process of law, but, since he is tyrannically despoiled of all the fruits of his industry, his property also is taken without due process of law. You talk sometimes of guaranties of the Constitution. Here is an unmistakable guaranty, and I hold you to it.

Bringing the argument together, the conclusion may be briefly stated. The five-headed barbarism of Slavery, beginning in violence, can have no legal or constitutional existence, unless through positive words expressly authorizing it. As no such positive words are found in the Constitution, all legislation by Congress supporting Slavery must be unconstitutional and void, while it is made still further impossible by positive words of prohibition guarding the liberty of every _person_ within the exclusive jurisdiction of Congress.

A court properly inspired, and ready to assume that just responsibility which dignifies judicial tribunals, would at once declare Slavery impossible at the national capital, and set every slave free,--as Lord Mansfield declared Slavery impossible in England, and set every slave free. The two cases are parallel; but, alas! the court is wanting here. The legality of Slavery in England was affirmed in professional opinions by the ablest lawyers; it was also affirmed on the bench. England was a Slave State, and even its newspapers were disfigured with advertisements for the sale of human beings, while the merchants of London, backed by great names in the law, sustained the outrage. Then appeared Granville Sharp, the philanthropist, who, pained by the sight of Slavery, and especially shocked by the brutality of a slave-hunt in the streets of London, was aroused to question its constitutionality in England. For two years he devoted himself to anxious study of the British Constitution in all its multifarious records. His conclusion is expressed in these precise words: “The word _slaves_, or anything that can justify the enslaving of others, is not to be found there, God be thanked!”[238] Thus encouraged, he persevered. By his generous exertions the negro Somerset, claimed as a slave by a Virginia gentleman then in London, was defended, and the Court of King’s Bench compelled to that immortal judgment by which Slavery was forever expelled from England, and the early boast of the British Constitution became a practical verity. More than fourteen thousand persons, held as slaves on British soil--four times as many as are now found in the national capital--became instantly free, without price or ransom.

The good work that our courts thus far decline remains to be done by Congress. Slavery, which is a scandalous anomaly and anachronism here, must be made to disappear from the national capital,--if not in one way, then in another. A judgment of court would be simply on the question of constitutional right, without regard to policy. But there is no consideration of right or of policy, from the loftiest principle to the humblest expediency, which may not properly enter into the conclusion of Congress. The former might be the triumph of the magistrate,--the latter must be that of the statesman. But whether from magistrate or from statesman, it will constitute an epoch in history.

* * * * *

But the question is asked, Shall we vote money for this purpose? I cannot hesitate. Two considerations are with me prevailing. First, the relation of master and slave at the national capital has from the beginning been established and maintained by Congress everywhere in sight, and even directly under its own eyes. The master held the slave; but Congress, with strong arm, stood behind the master, looking on and sustaining. Not a dollar of wages has been taken, not a child stolen, not a wife torn from her husband, without the hand of Congress. If not partnership, there is complicity on the part of Congress, through which the whole country has become responsible for the manifold wrong. Though always protesting against its continuance, and laboring earnestly for its removal, yet gladly do I accept my share of the prospective burden. And, secondly, even if not all involved in the manifold wrong, nothing is clearer than that the mode proposed is the gentlest, quietest, and surest in which the beneficent change can be accomplished. It is therefore the most practical. It recognizes Slavery as an existing fact, and provides for its removal. And when I think of the unquestionable good we seek, of all its great advantages, of the national capital redeemed, of the national character elevated, and of the righteous example we shall set, and when I think, still further, that, according to a rule alike of jurisprudence and morals, _Liberty is priceless_, I cannot hesitate at any appropriation within our means by which all these things of incalculable value can be promptly secured.

As I find no reason of policy adverse to such appropriation, so do I find no objection in the Constitution. I am aware that it is sometimes asked, Where in the Constitution is the power to make such appropriation? But nothing is clearer than that, under the words conferring “exclusive legislation in all cases whatsoever,” Congress may create freemen, although it may not create slaves. And of course it may exercise all the powers necessary to this end, whether by a simple act of emancipation or a vote of money. If there could be any doubt on this point, it would be removed, when we reflect that the abolition of Slavery, with all the natural incidents of such an act, has been constantly recognized as within the sphere of legislation. It was so regarded by Washington, who, in a generous letter to Lafayette, dated May 10, 1786, said: “It certainly might and assuredly ought to be effected, and that, too, by _legislative_ authority.”[239] Through legislative authority Slavery has been abolished in State after State of our Union, and also in foreign countries. I have yet to learn that the power of Congress for this purpose at the national capital is less complete than that of any other legislative body within its own jurisdiction.

* * * * *

But, while not doubting the power of Congress in any of its incidents, I prefer to consider the money we pay as in the nature of _ransom_ rather than _compensation_, so that Freedom shall be _acquired_ rather than _purchased_; and I place it at once under the sanction of that commanding charity proclaimed by prophets and enjoined by apostles, which all history recognizes and the Constitution cannot impair. From time immemorial every Government has undertaken to ransom from captivity, and sometimes a whole people has felt the general resources well bestowed in the ransom of its prince. Religion and humanity have both concurred in this duty as more than usually sacred. “The ransom of captives is a great and excellent office of justice,” exclaims one of the early Fathers. And the pious St. Ambrose insisted upon breaking up even the sacred vessels of the Church, saying: “The ornament of the sacraments is the redemption of captives.”

Among the most beautiful incidents of the early Church is that of St. Ambrose. There had been hesitation, but the divine Emancipationist broke forth: “What! you will not sell the vessels of gold, and you leave for sale the living vessels of the Lord! The ornament of the sacraments is the redemption of captives. Let the cup ransom from the enemy him whom the blood ransoms from sin.”[240] Happily, this spirit prevailed. At the report of Christians compelled to wear out their days as captives in Algiers, Tunis, or Morocco, or, it might be, among the Moors of Spain or the merchants of Genoa and Venice, it assumed practical form. Two Frenchmen, Jean de Matha and Pierre Nolasque, born on the coast of the Mediterranean, conceived the idea of a special order vowed to the redemption of Christian slaves. The first founded, in 1199, the order of the Holy Trinity, known often as Mathurins; the second, acting under the patronage of Spain, founded the order of Our Lady of Mercy. Upon both these orders Bishops and Popes bestowed approbation and encouragement, while, for more than six centuries, they devoted themselves to this Christian charity, often, according to the vow assumed, giving themselves as hostages for the ransomed captive. It is related, that, in 1655, the Order of Mercy in Algiers alone ransomed more than twelve thousand slaves, leaving in pledge a large number of its members, faithful to the vow, “_In Saracenorum potestate in pignus, si necesse fuerit ad redemptionem Christi fidelium, detentus manebo_.” Thus did these pious fathers give not only money, but themselves.[241]

The duty thus commended has been exercised by the United States under important circumstances, with the coöperation of the best names of our history, so as to be beyond question. The instance may not be familiar, but it is decisive, while, from beginning to end, it is full of instruction.

Who has not heard of the Barbary States, and of the pretension put forth by them to enslave white Christians? Algiers was the chief seat of this enormity, which, through the insensibility or incapacity of Christian States, was allowed to continue for generations. Good men and great men were degraded to be captives, while many, neglected by fortune, perished in barbarous Slavery. Even in our colonial days, there were Americans whose fate, while in the hands of these slave-masters, excited general sympathy. Only by ransom was their freedom obtained. Perhaps no condition was more calculated to arouse indignant rage. And yet the disposition so common to palliate Slavery in the National Capital showed itself with regard to Slavery in Algiers; and, indeed, the same arguments to soften public opinion have been employed in the two instances. The parallel is so complete, that I require all your trust to believe that what I read is not an apology for Slavery here. Thus, a member of a diplomatic mission from England, who visited Morocco in 1785, says of the Slavery which he saw: “It is very slightly inflicted”; and “as to any labor undergone, it does not deserve the name.”[242] And another earlier traveller, after describing the comfortable condition of the white slaves, adds, in words to which we are accustomed: “I am sure we saw several captives who lived much better in Barbary than ever they did in their own country.… Whatever money in charity was ever sent them by their friends in Europe was their own.… And yet this is called insupportable slavery among Turks and Moors! But we found this, as well as many other things in this country, strangely misrepresented.”[243] A more recent French writer asserts, with a vehemence to which we are habituated from the partisans of Slavery among us, that the white slaves at Algiers were not exposed to the miseries which they represented; that they were well clad and well fed, _much better than the free Christians there_; that special care was bestowed upon those who became ill; and that some were allowed such privileges as to become indifferent to freedom, and even to prefer Algiers to their own country.[244] Believe me, Sir, in stating these things I simply follow history; and I refer to the volume and page or chapter of the authorities which I quote, that the careful inquirer may see that they relate to Slavery abroad, and not to Slavery at home. If I continue to unfold this strange, eventful story, it will be to exhibit _the direct and constant intervention of Congress for the ransom of slaves_; but the story itself is an argument against Slavery, pertinent to the present occasion, which I am not unwilling to adopt.

Scarcely was national independence established, when we were aroused to fresh efforts for the protection of enslaved citizens. Within three years no less than ten American vessels were seized. At one time an apprehension prevailed that Dr. Franklin, on his way home from France, had been captured. “We are waiting,” said one of his French correspondents, “with the greatest impatience to hear from you. The newspapers have given us anxiety on your account, for some of them insist that you have been taken by the Algerines, while others pretend that you are at Morocco, enduring your slavery with all the patience of a philosopher.”[245] Though this apprehension happily proved without foundation, it soon became known that other Americans, less distinguished, but entitled to all the privileges of new-born citizenship, were suffering in cruel captivity. At once the sentiments of the people were enlisted in their behalf. Newspapers pleaded, while the corsairs were denounced sometimes as “infernal crews,” and sometimes as “human harpies.” But it was through the stories of victims who had succeeded in escaping from bondage that the people were most aroused. As these fugitive slaves touched our shores, they were welcomed with outspoken sympathy. Glimpses opened through them into the dread regions of Slavery gave a harrowing reality to all that conjecture or imagination had pictured. True, indeed, it was that our own white brethren, entitled like ourselves to all the rights of manhood, were degraded in unquestioning obedience to an arbitrary taskmaster, sold at the auction-block, worked like beasts of the field, and galled by the manacle and lash. As the national power seemed yet inadequate to compel their liberation, it was attempted by ransom.

Generous efforts at Algiers were organized under the direction of our minister at Paris, and the famous _Society of Redemption_, having its origin in the thirteenth century, offered aid. Our agents were blandly entertained by the great slave-dealer, the Dey, who informed them that he was familiar with the exploits of Washington, and, as he never expected to set eyes on this hero of Freedom, expressed a hope, that, through Congress, he might receive a full-length portrait of him, to be displayed in the palace at Algiers. Amidst such professions the Dey still clung to his American slaves, holding them at prices beyond the means of the agents, who were not authorized to exceed two hundred dollars a head,--being not unlike in amount that proposed in the present bill; and I beg to call the attention of the Senator from Maine [Mr. MORRILL], who has the bill in charge, to the parallel.

Their redemption engaged the attention of the National Government early after the adoption of the Constitution. It was first brought before Congress by petition, of which we find the following record.

“_Friday, May 14, 1790._--A petition from sundry citizens of the United States, captured by the Algerines, and now in slavery there, was presented, praying the interposition of Congress in their behalf. Referred to the Secretary of State.”[246]

An interesting report on the situation of these captives was made to the President by the Secretary of State, December 28, 1790, where he sets forth the efforts for their redemption at such prices as would not “raise the market,”--it being regarded as important, that, in “the first instance of a redemption by the United States, our price should be fixed at the lowest point.”[247] I quote the precise words of this document, which will be found in the State Papers of the country, and I call special attention to them as applicable to the present moment. Our price should be fixed at the lowest point, and we should do nothing to raise the market. The parallel becomes more complete, when it is known that the white slaves at Algiers were about the same in number with the black slaves at Washington whose redemption is now proposed. The report of Mr. Jefferson was laid before Congress, with the following brief message from the President.

“UNITED STATES, December 30, 1790.

“_Gentlemen of the Senate and House of Representatives_:--

“I lay before you a report of the Secretary of State on the subject of the citizens of the United States in captivity at Algiers, that you may provide on their behalf what to you shall seem most expedient.

“GEO. WASHINGTON.”[248]

It does not appear that there was question in any quarter with regard to the power of Congress. The broad recommendation of the President was to provide on behalf of the slaves what should seem most expedient.

Another report from the Secretary of State, entitled “Mediterranean Trade,” and communicated to Congress December 30, 1790, relates chiefly to the same matter. In this document are different estimates with regard to the price at which our fellow-citizens might be ransomed and peace purchased. One person, who had long resided at Algiers, put the price at sixty or seventy thousand pounds sterling: this was the lowest estimate. Another, also long, and still, a resident there, said that it could not be less than a million dollars,--which is the sum proposed in the present bill. Mr. Jefferson, after considering the subject at some length, concludes as follows.