Part 45 (2/2)
Lewis, 3 Har. and John's Reps., 56, where the slave of a St. Domingo slaveholder, who brought him to Maryland in '93, was p.r.o.nounced free by the Maryland Court of Appeals--are ill.u.s.trations of the acknowledged truth here a.s.serted, that by the consent of the civilized world, and on the principles of universal law, slaves are not ”_property_,” and that whenever held as property under _law_, it is only by _positive legislative acts_, forcibly setting aside the law of nature, the common law, and the principles of universal justice and right between man and man,--principles paramount to all law, and from which alone law, derives its intrinsic authoritative sanction.]
9. CONGRESS HAS UNQUESTIONABLE POWER TO ADOPT THE COMMON LAW, AS THE LEGAL SYSTEM, WITHIN ITS EXCLUSIVE JURISDICTION.--This has been done, with certain restrictions, in most of the States, either by legislative acts or by const.i.tutional implication. THE COMMON LAW KNOWS NO SLAVES.
Its principles annihilate slavery wherever they touch it. It is a universal, unconditional, abolition act. Wherever slavery is a legal system, it is so only by _statute_ law, and in violation of the common law. The declaration of Lord Chief Justice Holt, that, ”by the common law, no man can have property in another,” is an acknowledged axiom, and based upon the well known common law definition of property. ”The subjects of dominion or property are _things_, as contra-distinguished from _persons_.” Let Congress adopt the common law in the District of Columbia, and slavery there is at once abolished. Congress may well be at home in common law legislation, for the common law is the grand element of the United States Const.i.tution. All its _fundamental_ provisions are instinct with its spirit; and its existence, principles, and paramount authority, are presupposed and a.s.sumed throughout the whole. The preamble of the Const.i.tution plants the standard of the Common Law immovably in its foreground. ”We, the people of the United States, in order to ESTABLISH JUSTICE, &c., do ordain and establish this Const.i.tution;” thus proclaiming _devotion to_ JUSTICE, as the controlling motive in the organization of the Government, and its secure establishment the chief object of its aims. By this most solemn recognition, the common law, that grand legal embodyment of ”_justice_”
and fundamental right--was made the Groundwork of the Const.i.tution, and intrenched behind its strongest munitions. The second clause of Sec. 9, Art. 1; Sec. 4, Art. 2, and the last clause of Sec. 2, Art. 3, with Articles 7, 8, 9, and 13 of the Amendments, are also express recognitions of the common law as the presiding Genius of the Const.i.tution.
By adopting the common law within its exclusive jurisdiction Congress would carry out the principles of our glorious Declaration, and follow the highest precedents in our national history and jurisprudence. It is a political maxim as old as civil legislation, that laws should be strictly h.o.m.ogeneous with the principles of the government whose will they express, embodying and carrying them out--being indeed the _principles themselves_, in preceptive form--representatives alike of the nature and the power of the Government--standing ill.u.s.trations of its genius and spirit, while they proclaim and enforce its authority.
Who needs be told that slavery makes war upon the principles of the Declaration, and the spirit of the Const.i.tution, and that these and the principles of the common law gravitate toward each other with irrepressible affinities, and mingle into one? The common law came hither with our pilgrim fathers; it was their birthright, their panoply, their glory, and their song of rejoicing in the house of their pilgrimage. It covered them in the day of their calamity, and their trust was under the shadow of its wings. From the first settlement of the country, the genius of our inst.i.tutions and our national spirit have claimed it as a common possession, and exulted in it with a common pride. A century ago, Governor Pownall, one of the most eminent const.i.tutional jurists of colonial times, said of the common law, ”In all the colonies the common law is received as the foundation and main body of their law.” In the Declaration of Rights, made by the Continental Congress at its first session in '74, there was the following resolution: ”Resolved, That the respective colonies are ent.i.tled to the common law of England, and especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.” Soon after the organization of the general government, Chief Justice Ellsworth, in one of his decisions on the bench of the United States Supreme Court, said: ”The common law of this country remains the same as it was before the revolution.” Chief Justice Marshall, in his decision in the case of Livingston _vs._ Jefferson, said: ”When our ancestors migrated to America, they brought with them the common law of their native country, so far as it was applicable to their new situation, and I do not conceive that the revolution in any degree changed the relations of man to man, or the law which regulates them. In breaking our political connection with the parent state, we did not break our connection with each other.” [_Hall's Law Journal, new series._] Mr. Duponceau, in his ”Dissertation on the Jurisdiction of Courts in the United States,” says, ”I consider the common law of England the _jus commune_ of the United States. I think I can lay it down as a correct principle, that the common law of England, as it was at the time of the Declaration of Independence, still continues to be the national law of this country, so far as it is applicable to our present state, and subject to the modifications it has received here in the course of nearly half a century.” Chief Justice Taylor of North Carolina, in his decision in the case of the State _vs._ Reed, in 1823, Hawkes' N.C. Reps. 454, says, ”a law of _paramount obligation to the statute_, was violated by the offence--COMMON LAW founded upon the law of nature, and confirmed by revelation.” The legislation of the United States abounds in recognitions of the principles of the common law, a.s.serting their paramount binding power.
Sparing details, of which our national state papers are full, we ill.u.s.trate by a single instance. It was made a condition of the admission of Louisiana into the Union, that the right of trial by jury should be secured to all her citizens,--the United States government thus employing its power to enlarge the jurisdiction of the common law in this its great representative.
Having shown that the abolition of slavery is within the competency of the law-making power, when unrestricted by const.i.tutional provisions, and that the legislation of Congress over the District is thus unrestricted, its power to abolish slavery there is established.
We argue it further, from the fact, that slavery exists there _now_ by an act of Congress. In the act of 16th July, 1790, Congress accepted portions of territory offered by the states of Maryland and Virginia, and enacted that the laws, as they then were, should continue in force, ”until Congress shall otherwise by law provide.” Under these laws, adopted by Congress, and in effect re-enacted and made laws of the District, the slaves there are now held.
Is Congress so impotent in its own ”exclusive jurisdiction” that it _cannot_ ”otherwise by law provide?” If it can say, what _shall_ be considered property, it can say what shall _not_ be considered property.
Suppose a legislature should enact that marriage contracts shall be mere bills of sale, making a husband the proprietor of his wife, as his _bona fide_ property; and suppose husbands should herd their wives in droves for the market as beasts of burden, or for the brothel as victims of l.u.s.t, and then prate about their inviolable legal property, and deny the power of the legislature, which stamped them ”property,” to undo its own wrong, and secure to wives by law the rights of human beings. Would such cant about ”legal rights” be heeded where reason and justice held sway, and where law, based upon fundamental morality, received homage? If a frantic legislature p.r.o.nounces woman a chattel, has it no power, with returning reason, to take back the blasphemy? Is the impious edict irrepealable? Be it, that with legal forms it has stamped wives ”wares.”
Can no legislation blot out the brand? Must the handwriting of Deity on human nature be expunged for ever? Has law no power to stay the erasing pen, and tear off the scrawled label that covers up the IMAGE OF G.o.d?
II. THE POWER OF CONGRESS TO ABOLISH SLAVERY IN THE DISTRICT HAS BEEN, TILL RECENTLY, UNIVERSALLY CONCEDED.
1. IT HAS BEEN a.s.sUMED BY CONGRESS ITSELF. The following record stands on the journals of the House of Representatives for 1804, p. 225: ”On motion made and seconded that the House do come to the following resolution: 'Resolved, That from and after the 4th day of July, 1805, all blacks and people of color that shall be born within the District of Columbia, or whose mothers shall be the property of any person residing within said District, shall be free, the males at the age of ----, and the females at the age of ----. The main question being taken that the house do agree to said motion as originally proposed, it was negatived by a majority of 46.'” Though the motion was lost, it was on the ground of its alleged _inexpediency_ alone. In the debate which preceded the vote, the _power_ of Congress was conceded. In March, 1816, the House of Representatives pa.s.sed the following resolution:--”Resolved, That a committee be appointed to inquire into the existence of an inhuman and illegal traffic in slaves, carried on in and through the District of Columbia, and to report whether any and what measures are necessary for _putting a stop to the same_.”
On the 9th of January, 1829, the House of Representatives pa.s.sed the following resolution by a vote of 114 to 66: ”Resolved, That the Committee on the District of Columbia, be instructed to inquire into the _expediency_ of providing by _law_ for the gradual abolition of slavery within the District, in such manner that the interests of no individual shall be injured thereby.” Among those who voted in the affirmative were Messrs. Barney of Md., Armstrong of Va., A.H. Shepperd of N.C., Blair of Tenn., Chilton and Lyon of Ky., Johns of Del., and others from slave states.
2. IT HAS BEES CONCEDED BY COMMITTEES OF CONGRESS, OF THE DISTRICT of COLUMBIA.--In a report of the committee on the District, Jan. 11, 1837, by their chairman, Mr. Powell of Va., there is the following declaration:--”The Congress of the United States, has by the const.i.tution exclusive jurisdiction over the District, and has power upon this subject, (_slavery_,) as upon all other subjects of legislation, to exercise _unlimited discretion_.” Reps. of Comms. 2d Sess. 19th Cong. v. iv. No. 43. In December, 1831, the committee on the District, Dr. Doddridge of Va., Chairman, reported, ”That until the adjoining states act on the subject, (slavery) it would be (not _unconst.i.tutional_ but) unwise and impolitic, if not unjust, for Congress to interfere.” In April, 1836, a special committee on abolition memorials reported the following resolutions by their Chairman, Mr.
Pinckney of South Carolina: ”Resolved, That Congress possesses no const.i.tutional authority to interfere in any way with the inst.i.tution of slavery in any of the states of this confederacy.”
”Resolved, That Congress _ought not to interfere_ in any way with slavery in the District of Columbia.” ”Ought not to interfere,”
carefully avoiding the phraseology of the first resolution, and thus in effect conceding the const.i.tutional power. In a widely circulated ”Address to the electors of the Charleston District,” Mr. Pinkney is thus denounced by his own const.i.tuents: ”He has proposed a resolution which is received by the plain common sense of the whole country as a concession that Congress has authority to abolish slavery in the District of Columbia.”
3. IT HAS BEEN CONCEDED BY THE CITIZENS OF THE DISTRICT. A pet.i.tion for the gradual abolition of slavery in the District, signed by nearly eleven hundred of its citizens, was presented to Congress, March 24, 1827. Among the signers to this pet.i.tion, were Chief Justice Cranch, Judge Van Ness, Judge Morsel, Prof. J.M. Staughton, and a large number of the most influential inhabitants of the District. Mr. d.i.c.kson, of New York, a.s.serted on the floor of Congress in 1835, that the signers of this pet.i.tion owned more than half of the property in the District. The accuracy of this statement has never been questioned.
THIS POWER HAS BEEN CONCEDED BY GRAND JURIES OF THE DISTRICT. The Grand jury of the county of Alexandria, at the March term, 1802, presented the domestic slave trade as a grievance, and said, ”We consider these grievances demanding _legislative_ redress.” Jan. 19, 1829, Mr.
Alexander, of Virginia, presented a representation of the grand jury in the city of Was.h.i.+ngton, remonstrating against ”any measure for the abolition of slavery within said District, unless accompanied by measures for the removal of the emanc.i.p.ated from the same;” thus, not only conceding the power to emanc.i.p.ate slaves, but affirming an additional power, that of _excluding them when free_. Journal H.R.
1828-9, p. 174.
4. THIS POWER HAS BEEN CONCEDED BY STATE LEGISLATURES. In 1828 the Legislature of Pennsylvania instructed their Senators in Congress ”to procure, if practicable, the pa.s.sage of a law to abolish slavery in the District of Columbia.” Jan. 28, 1829, the House of a.s.sembly of New-York pa.s.sed a resolution, that their ”Senators in Congress be instructed to make every possible exertion to effect the pa.s.sage of a law for the abolition of Slavery in the District of Columbia.” In February, 1837, the Senate of Ma.s.sachusetts ”Resolved, That Congress having exclusive legislation in the District of Columbia, possess the right to abolish slavery and the slave trade therein.” The House of Representatives pa.s.sed the following resolution at the same session: ”Resolved, That Congress having exclusive legislation in the District of Columbia, possess the right to abolish slavery in said District.”
November 1, 1837, the Legislature of Vermont, ”Resolved, that Congress have the full power by the const.i.tution to abolish slavery and the slave trade in the District of Columbia, and in the territories.”
May 30, 1836, a committee of the Pennsylvania Legislature reported the following resolution: ”Resolved, That Congress does possess the const.i.tutional power, and it is expedient to abolish slavery and the slave trade within the District of Columbia.”
In January, 1836, the Legislature of South Carolina ”Resolved, That we should consider the abolition of Slavery in the District of Columbia as a violation of the rights of the citizens of that District derived from the _implied_ conditions on which that territory was ceded to the General Government.” Instead of denying the const.i.tutional power, they virtually admit its existence, by striving to smother it under an _implication_. In February, 1836, the Legislature of North Carolina ”Resolved, That, although by the Const.i.tution _all legislative power_ over the District of Columbia is vested in the Congress of the United States, yet we would deprecate any legislative action on the part of that body towards liberating the slaves of that District, as a breach of faith towards those States by whom the territory was originally ceded.
Here is a full concession of the _power_. February 2, 1836, the Virginia Legislature pa.s.sed unanimously the following resolution: ”Resolved, by the General a.s.sembly of Virginia, that the following article be proposed to the several states of this Union, and to Congress, as an amendment of the Const.i.tution of the United States: ”The powers of Congress shall not be so construed as to authorize the pa.s.sage of any law for the emanc.i.p.ation of slaves in the District of Columbia, without the consent of the individual proprietors thereof, unless by the sanction of the Legislatures of Virginia and Maryland, and under such conditions as they shall by law prescribe.”
Fifty years after the formation of the United States' const.i.tution the states are solemnly called upon by the Virginia Legislature, to amend that instrument by a clause a.s.serting that, in the grant to Congress of ”exclusive legislation in all cases whatsoever” over the District, the ”case” of slavery is not included!! What could have dictated such a resolution but the conviction that the power to abolish slavery is an irresistible inference from the const.i.tution _as it is_. The fact that the same legislature pa.s.sed afterward a resolution, though by no means unanimously, that Congress does not possess the power, abates not a t.i.ttle of the testimony in the first resolution. March 23d, 1824, ”Mr.
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