Part 45 (1/2)
The Const.i.tution of Mississippi gives the General a.s.sembly power to make laws ”to oblige the owners of slaves to _treat them with humanity_.” The Const.i.tution of Missouri has the same clause, and an additional one making it the DUTY of the legislature to pa.s.s such laws as may be necessary to secure the _humane_ treatment of the slaves. This grant to those legislatures, empowers them to decide what _is_ and what is _not_ ”humane treatment.” Otherwise it gives no ”power”--the clause is mere waste paper, and flouts in the face of a befooled legislature. A clause giving power to require ”humane treatment” covers all the _particulars_ of such treatment--gives power to exact it in _all respects--requiring_ certain acts, and _prohibiting_ others--maiming, branding, chaining together, separating families, floggings for learning the alphabet, for reading the Bible, for wors.h.i.+ping G.o.d according to conscience--the legislature has power to specify each of these acts--declare that it is not ”_humane_ treatment,” and PROHIBIT it.--The legislature may also believe that driving men and women into the field, and forcing them to work without pay, is not ”humane treatment,” and being Const.i.tutionally bound ”to _oblige_” masters to practise ”humane treatment”--they have the power to _prohibit such_ treatment, and are bound to do it.
The law of Louisiana makes slaves real estate, prohibiting the holder, if he be also a _land_ holder, to separate them from the soil.[A] If it has power to prohibit the sale _without_ the soil, it can prohibit the sale _with_ it; and if it can prohibit the _sale_ as property, it can prohibit the _holding_ as property. Similar laws exist in the French, Spanish, and Portuguese colonies.
[Footnote A: Virginia made slaves real estate by a law pa.s.sed in 1705.
(_Beverly's Hist. of Va_., p. 98.) I do not find the precise time when this law was repealed, probably when Virginia became the chief slave breeder for the cotton-growing and sugar-planting country, and made young men and women ”from fifteen to twenty-five” the main staple production of the State.]
The law of Louisiana requires the master to give his slaves a certain amount of food and clothing. If it can oblige the master to give the slave _one_ thing, it can oblige him to give him another: if food and clothing, then wages, liberty, his own body.
By the laws of Connecticut, slaves may receive and hold property, and prosecute suits in their own name as plaintiffs: [This last was also the law of Virginia in 1795. See Tucker's ”Dissertation on Slavery,” p. 73.]
There were also laws making marriage contracts legal, in certain contingencies, and punis.h.i.+ng infringements of them, [”_Reeve's Law of Baron and Femme_,” p. 340-1.] Each of the laws enumerated above, does, _in principle_, abolish slavery; and all of them together abolish it in fact. True, not as a _whole_, and at a _stroke_, nor all in one place; but in its _parts_, by piecemeal, at divers times and places; thus showing that the abolition of slavery is within the boundary of legislation.
5. THE COMPETENCY OF THE LAW-MAKING POWER TO ABOLISH SLAVERY, HAS BEEN RECOGNIZED BY ALL THE SLAVEHOLDING STATES, EITHER DIRECTLY OR BY IMPLICATION. Some States recognize it in their _Const.i.tutions_, by giving the legislature power to emanc.i.p.ate such slaves as may ”have rendered the state some distinguished service, ”and others by express prohibitory restrictions. The Const.i.tution of Mississippi, Arkansas, and other States, restrict the power of the legislature in this respect. Why this express prohibition, if the law-making power _cannot_ abolish slavery? A stately farce, indeed, to construct a special clause, and with appropriate rites induct it into the Const.i.tution, for the express purpose of restricting a nonent.i.ty!--to take from the law-making power what it _never had_, and what _cannot_ pertain to it! The legislatures of those States have no power to abolish slavery, simply because their Const.i.tutions have expressly _taken away_ that power. The people of Arkansas, Mississippi, &c., well knew the competency of the law-making power to abolish slavery, and hence their zeal to _restrict_ it.
The slaveholding States have recognised this power in their _laws_. The Virginia Legislature pa.s.sed a law in 1786 to prevent the further importation of Slaves, of which the following is an extract: ”And be it further enacted that every slave imported into this commonwealth contrary to the true intent and meaning of this act, shall upon such importation become _free_.” By a law of Virginia, pa.s.sed Dec. 17, 1792, a slave brought into the state and kept _there a year_, was _free_. The Maryland Court of Appeals at the December term 1813 [case of Stewart _vs._ Oakes,] decided that a slave owned in Maryland, and sent by his master into Virginia to work at different periods, making one year in the whole, became _free_, being _emanc.i.p.ated_ by the law of Virginia quoted above. North Carolina and Georgia in their acts of cession, transferring to the United States the territory now const.i.tuting the States of Tennessee, Alabama and Mississippi, made it a condition of the grant, that the provisions of the ordinance of '87, should be secured to the inhabitants _with the exception of the sixth article which prohibits slavery_; thus conceding, both the competency of law to abolish slavery, and the power of Congress to do it, within its jurisdiction. (These acts show the prevalent belief at that time, in the slaveholding States, that the general government had adopted a line of policy aiming at the exclusion of slavery from the entire territory of the United States, not included within the original States, and that this policy would be pursued unless prevented by specific and formal stipulation.)
Slaveholding states have a.s.serted this power _in their judicial decisions_. In numerous cases their highest courts have decided that if the legal owner of slaves takes them into those States where slavery has been abolished either by law or by the const.i.tution, such removal emanc.i.p.ates them, such law or const.i.tution abolis.h.i.+ng their slavery.
This principle is a.s.serted in the decision of the Supreme Court of Louisiana, in the case of Lunsford _vs._ Coquillon, 14 Martin's La.
Reps. 401. Also by the Supreme Court of Virginia, in the case of Hunter _vs._ Fulcher, 1 Leigh's Reps. 172. The same doctrine was laid down by Judge Was.h.i.+ngton, of the United States Supreme Court, in the case of Butler _vs._ Hopper, Was.h.i.+ngton's Circuit Court Reps. 508. This principle was also decided by the Court of Appeals in Kentucky; case of Rankin _vs._ Lydia, 2 Marshall's Reps. 407; see also, Wilson _vs._ Isbell, 5 Call's Reps. 425, Spotts _vs._ Gillespie, 6 Randolph's Reps.
566. The State _vs._ La.s.selle, 1 Blackford's Reps. 60, Marie Louise _vs._ Mariot, 8 La. Reps. 475. In this case, which was tried in 1836, the slave had been taken by her master to France and brought back; Judge Mathews, of the Supreme Court of Louisiana, decided that ”residence for one moment” under the laws of France emanc.i.p.ated her.
6. EMINENT STATESMEN, THEMSELVES SLAVEHOLDERS, HAVE CONCEDED THIS POWER.
Was.h.i.+ngton, in a letter to Robert Morris, dated April 12, 1786, says: ”There is not a man living, who wishes more sincerely than I do, to see a plan adopted for the abolition of slavery; but there is only one proper and effectual mode by which it can be accomplished, and that is by _legislative_ authority.” In a letter to Lafayette, dated May 10, 1786, he says: ”It (the abolition of slavery) certainly might, and a.s.suredly ought to be effected, and that too by _legislative_ authority.” In a letter to John Fenton Mercer, dated Sept. 9, 1786, he says: ”It is among my first wishes to see some plan adopted by which slavery in this country may be abolished by _law_.” In a letter to Sir John Sinclair, he says: ”There are in Pennsylvania, _laws_ for the gradual abolition of slavery, which neither Maryland nor Virginia have at present, but which nothing is more certain than that they _must have_, and at a period not remote.” Speaking of movements in the Virginia Legislature in 1777, for the pa.s.sage of a law emanc.i.p.ating the slaves, Mr. Jefferson says: ”The principles of the amendment were agreed on, that is to say, the freedom of all born after a certain day; but it was found that the public mind would not bear the proposition, yet the day is not far distant, when _it must bear and adopt it_.”--Jefferson's Memoirs, v. 1, p. 35. It is well known that Jefferson, Pendleton, Mason, Wythe and Lee, while acting as a committee of the Virginia House of Delegates to revise the State Laws, prepared a plan for the gradual emanc.i.p.ation of the slaves by law. These men were the great lights of Virginia. Mason, the author of the Virginia Const.i.tution; Pendleton, the President of the memorable Virginia Convention in 1787, and President of the Virginia Court of Appeals; Wythe was the Blackstone of the Virginia bench, for a quarter of a century Chancellor of the State, the professor of law in the University of William and Mary, and the preceptor of Jefferson, Madison, and Chief Justice Marshall. He was author of the celebrated remonstrance to the English House of Commons on the subject of the stamp act. As to Jefferson, his _name_ is his biography.
Every slaveholding member of Congress from the States of Maryland, Virginia, North and South Carolina, and Georgia, voted for the celebrated ordinance of 1787, which _abolished_ the slavery then existing in the Northwest Territory. Patrick Henry, in his well known letter to Robert Pleasants, of Virginia, January 18, 1773, says: ”I believe a time will come when an opportunity will be offered to _abolish_ this lamentable evil.” William Pinkney, of Maryland, advocated the abolition of slavery by law, in the legislature of that State, in 1789. Luther Martin urged the same measure both in the Federal Convention, and in his report to the Legislature of Maryland. In 1796, St. George Tucker, of Virginia, professor of law in the University of William and Mary, and Judge of the General Court, published an elaborate dissertation on slavery, addressed to the General a.s.sembly of the State, and urging upon them the abolition of slavery by _law_.
John Jay, while New York was yet a slave State, and himself in law a slaveholder, said in a letter from Spain, in 1786, ”An excellent law might be made out of the Pennsylvania one, for the gradual abolition of slavery. Were I in your legislature, I would present a bill for the purpose, drawn up with great care, and I would never cease moving it till it became a law, or I ceased to be a member.”
Daniel D. Tompkins, in a message to the Legislature of New-York January 8, 1812, said: ”To devise the means for the gradual and ultimate _extermination_ from amongst us of slavery, is a work worthy the representatives of a polished and enlightened nation.”
The Virginia Legislature a.s.serted this power in 1832. At the close of a month's debate, the following proceedings were had. I extract from an editorial article of the Richmond Whig, of January 26, 1832.
”The report of the Select Committee, adverse to legislation on the subject of Abolition, was in these words: _Resolved_, as the opinion of this Committee, that it is INEXPEDIENT FOR THE PRESENT, to make any _legislative enactments for the abolition of Slavery_.” This Report Mr. Preston moved to reverse, and thus to declare that it _was_ expedient, _now_ to make legislative enactments for the abolition of slavery. This was meeting the question in its strongest form. It demanded action, and immediate action. On this proposition the vote was 58 to 73.
Many of the most decided friends of abolition voted against the amendment; because they thought public opinion not sufficiently prepared for it, and that it might prejudice the cause to move too rapidly. The vote on Mr. Witcher's motion to postpone the whole subject indefinitely, indicates the true state of opinion in the House.--That was the test question, and was so intended and proclaimed by its mover. That motion was _negatived_, 71 to 60; showing a majority of 11, who by that vote, declared their belief that ”at the proper time, and in the proper mode, Virginia ought to commence a system of gradual abolition.”
7. THE CONGRESS OF THE UNITED STATES HAVE a.s.sERTED THIS POWER. The ordinance of '87, declaring that there should be ”neither slavery nor involuntary servitude,” in the North Western territory, abolished the slavery then existing there. The Supreme Court of Mississippi, in its decision in the case of Harvey vs. Decker, Walker's Mi. Reps. 36, declared that the ordinance emanc.i.p.ated the slaves then held there. In this decision the question is argued ably and at great length. The Supreme Court of La. made the same decision in the case of Forsyth vs.
Nash, 4 Martin's La. Reps. 395. The same doctrine was laid down by Judge Porter, (late United States Senator from La.,) in his decision at the March term of the La. Supreme Court, 1830, in the case of Merry vs.
Chexnaider, 20 Martin's Reps. 699.
That the ordinance abolished the slavery then existing there is also shown by the fact, that persons holding slaves in the territory pet.i.tioned for the repeal of the article abolis.h.i.+ng slavery, a.s.signing _that_ as a reason. ”The pet.i.tion of the citizens of Randolph and St.
Clair counties in the Illinois country, stating that they were in possession of slaves, and praying the repeal of that act (the 6th article of the ordinance of '87) and the pa.s.sage of a law legalizing slavery there.” [Am. State papers, Public Lands, v. 1. p. 69.] Congress pa.s.sed this ordinance before the United States Const.i.tution was adopted, when it derived all its authority from the articles of Confederation, which conferred powers of legislation far more restricted than those conferred on Congress over the District and Territories by the United States Const.i.tution. Now, we ask, how does the Const.i.tution _abridge_ the powers which Congress possessed under the articles of confederation?
The abolition of the slave trade by Congress, in 1808, is another ill.u.s.tration of the competency of legislative power to abolish slavery.
The African slave trade has become such a mere _technic_, in common parlance, that the fact of its being _proper slavery_ is overlooked. The buying and selling, the transportation, and the horrors of the middle pa.s.sage, were mere _incidents_ of the slavery in which the victims were held. Let things be called by their own names. When Congress abolished the African slave trade, it abolished SLAVERY--supreme slavery--power frantic with license, trampling a whole hemisphere scathed with its fires, and running down with blood. True, Congress did not, in the abolition of the slave trade, abolish _all_ the slavery within its jurisdiction, but it did abolish all the slavery in _one_ part of its jurisdiction. What has rifled it of power to abolish slavery in _another_ part of its jurisdiction, especially in that part where it has ”exclusive legislation in all cases whatsoever?”
8. THE CONSt.i.tUTION OF THE UNITED STATES RECOGNISES THIS POWER BY THE MOST CONCLUSIVE IMPLICATION. In Art. 1, sec. 3, clause 1, it prohibits the abolition of the slave trade previous to 1808: thus implying the power of Congress to do it at once, but for the restriction; and its power to do it _unconditionally_, when that restriction ceased. Again; In Art. 4, sec. 2, ”No person held to service or labor in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from said service or labor.” This clause was inserted, as all admit, to prevent the runaway slave from being emanc.i.p.ated by the _laws_ of the free states. If these laws had _no power_ to emanc.i.p.ate, why this const.i.tutional guard to prevent it?
The insertion of the clause, was the testimony of the eminent jurists that framed the Const.i.tution, to the existence of the _power_, and their public proclamation, that the abolition of slavery was within the appropriate sphere of legislation. The right of the owner to that which is rightfully property, is founded on a principle of _universal law_, and is recognised and protected by all civilized nations; property in slaves is, by general consent, an _exception_; hence slaveholders insisted upon the insertion of this clause in the United States Const.i.tution, that they might secure by an _express provision_, that from which protection is withheld, by the acknowledged principles of universal law.[A] By demanding this provision, slaveholders consented that their slaves should not be recognised as property by the United States Const.i.tution, and hence they found their claim, on the fact of their being ”_persons_, and _held_ to service.”
[Footnote A: The fact, that under the articles of Confederation, slaveholders, whose slaves had escaped into free states, had no legal power to force them back,--that _now_ they have no power to recover, by process of law, their slaves who escape to Canada, the South American States, or to Europe--the case already cited, in which the Supreme Court of Louisiana decided, that residence ”_for one moment_,” under the laws of France emanc.i.p.ated an American slave--the case of Fulton _vs._.