Part 54 (1/2)

But we turn from these considerations--though the times on which we have fallen, and those toward which we are borne with headlong haste, call for their discussion as with the voices of departing life--and proceed to topics relevant to the argument before us.

The seventh article of the amendments to the const.i.tution is alleged to withhold from Congress the power to abolish slavery in the District. ”No person shall be deprived of life, liberty, or property, without due process of law.” All the slaves in the District have been ”deprived of liberty” by legislative acts. Now, these legislative acts ”depriving”

them ”of liberty,” were either ”due process of law,” or they were _not_.

If they _were_, then a legislative act, taking from the master that ”property” which is the identical ”liberty” previously taken from the slave, would be ”due process of law” _also_, and of course a _const.i.tutional_ act; but if the legislative acts ”depriving” them of ”liberty” were _not_ ”due process of law,” then the slaves were deprived of liberty _unconst.i.tutionally_, and these acts are _void_. In that case the _const.i.tution emanc.i.p.ates them_.

If the objector reply, by saying that the import of the phrase ”due process of law,” is _judicial_ process solely, it is granted, and that fact is our rejoinder; for no slave in the District _has_ been deprived of his liberty by ”a judicial process,” or, in other words, by ”due process of law;” consequently, upon the objector's own admission, every slave in the District has been deprived of liberty _unconst.i.tutionally_, and is therefore _free by the const.i.tution_. This is a.s.serted only of the slaves under the ”exclusive legislation” of Congress.

The last clause of the article under consideration is quoted for the same purpose: ”Nor shall private property he taken for public use without just compensation.” Each of the state const.i.tutions has a clause of similar purport. The abolition of slavery in the District by Congress, would not, as we shall presently show; violate this clause either directly or by implication. Granting for argument's sake, that slaves are ”private property,” and that to emanc.i.p.ate them, would be to ”take private property” for ”public use,” the objector admits the power of Congress to do _this_, provided it will do something _else_, that is, _pay_ for them. Thus, instead of denying the _power_, the objector not only admits, but _affirms_ it, as the ground of the inference that compensation must accompany it. So far from disproving the existence of _one_ power, he a.s.serts the existence of _two_--one, the power to take the slaves from their masters, the other, the power to take the property of the United States to pay for them.

If Congress cannot const.i.tutionally impair the right of private property, or take it without compensation, it cannot const.i.tutionally, _legalize_ the perpetration of such acts, by _others_, nor _protect_ those who commit them. Does the power to rob a man of his earnings, rob the earner of his _right_ to them? Who has a better right to the _product_ than the producer?--to the _interest_, than the owner of the _princ.i.p.al_?--to the hands and arms, than he from whose shoulders they swing?--to the body and soul, than he whose they are? Congress not only impairs but annihilates the right of private property, while it withholds from the slaves of the District their t.i.tle to _themselves_.

What! Congress powerless to protect a man's right to _himself_, when it can make inviolable the right to a _dog_! But, waiving this, I deny that the abolition of slavery in the District would violate this clause. What does the clause prohibit? The ”taking” of ”private property” for ”public use.” Suppose Congress should emanc.i.p.ate the slaves in the District, what would it ”_take_?” Nothing. What would it _hold_? Nothing. What would it put to ”public use?” Nothing. Instead of _taking_ ”private property,” Congress, by abolis.h.i.+ng slavery, would say ”_private property_ shall not be taken; and those who have been robbed of it already, shall be kept out of it no longer; and every man's right to his own body shall be protected.” True, Congress may not arbitrarily take property, _as_ property, from one man and give it to another--and in the abolition of slavery no such thing is done. A legislative act changes the _condition_ of the slave--makes him his own _proprietor_, instead of the property of another. It determines a question of _original right_ between two cla.s.ses of persons--doing an act of justice to one, and restraining the other from acts of injustice; or, in other words, preventing one from robbing the other, by granting to the injured party the protection of just and equitable laws.

Congress, by an act of abolition, would change the condition of seven thousand ”persons” in the District, but would ”take” nothing. To construe this provision so as to enable the citizens of the District to hold as property, and in perpetuity, whatever they please, or to hold it as property in all circ.u.mstances--all necessity, public welfare, and the will and power of the government to the contrary notwithstanding--is a total perversion of its whole _intent_. The _design_ of the provision, was to throw up a barrier against Governmental aggrandizement. The right to ”take property” for _State uses_ is one thing;--the right so to adjust the _tenures_ by which property is held, that _each may have his own secured to him_, is another thing, and clearly within the scope of legislation. Besides, if Congress were to ”take” the slaves in the District, it would be _adopting_, not abolis.h.i.+ng slavery--becoming a slaveholder itself, instead of requiring others to be such no longer.

The clause in question, prohibits the ”taking” of individual property for public use, to be employed or disposed of _as_ property for governmental purposes. Congress, by abolis.h.i.+ng slavery in the District, would do no such thing. It would merely change the _condition_ of that which has been recognized as a qualified property by congressional acts, though previously declared ”persons” by the const.i.tution. More than this is done continually by Congress and every other Legislature. Property the most absolute and unqualified, is annihilated by legislative acts.

The embargo and non-intercourse act, levelled at a stroke a forest of s.h.i.+pping, and sunk millions of capital. To say nothing of the power of Congress to take hundreds of millions from the people by direct taxation, who doubts its power to abolish at once the whole tariff system, change the seat of Government, arrest the progress of national works, prohibit any branch of commerce with the Indian tribes or with foreign nations, change the locality of forts, a.r.s.enals, magazines and dock yards; abolish the Post Office system, and the privilege of patents and copyrights? By such acts Congress might, in the exercise of its acknowledged powers, annihilate property to an incalculable amount, and that without becoming liable to claims for compensation.

Finally, this clause prohibits the taking for public use of ”_property_.” The const.i.tution of the United States does not recognize slaves as ”PROPERTY” any where, and it does not recognize them in _any sense_ in the District of Columbia. All allusions to them in the const.i.tution recognize them as ”persons.” Every reference to them points _solely_ to the element of _personality_; and thus, by the strongest implication, declares that the const.i.tution _knows_ them only as ”persons,” and _will_ not recognize them in any other light. If they escape into free States, the const.i.tution authorizes their being taken back. But how? Not as the property of an ”owner,” but as ”persons;” and the peculiarity of the expression is a marked recognition of their _personality_--a refusal to recognize them as chattels--”persons _held_ to service.” Are _oxen ”held_ to service?” That can be affirmed only of _persons_. Again, slaves give political power as ”persons.” The const.i.tution, in settling the principle of representation, requires their enumeration in the census. How? As property? Then why not include race horses and game c.o.c.ks? Slaves, like other inhabitants, are enumerated as ”persons.” So by the const.i.tution, the government was pledged to non-interference with ”the migration or importation of such _persons_” as the States might think proper to admit until 1808, and authorized the laying of a tax on each ”person” so admitted. Further, slaves are recognized as _persons_ by the exaction of their _allegiance_ to the government. For offences against the government slaves are tried as _persons_; as persons they are ent.i.tled to counsel for their defence, to the rules of evidence, and to ”due process of law,” and as _persons_ they are punished. True, they are loaded with cruel disabilities in courts of law, such as greatly obstruct and often inevitably defeat the ends of justice, yet they are still recognized as _persons_. Even in the legislation of Congress, and in the diplomacy of the general government, notwithstanding the frequent and wide departures from the integrity of the const.i.tution on this subject, slaves are not recognized as _property_ without qualification. Congress has always refused to grant compensation for slaves killed or taken by the enemy, even when these slaves had been impressed into the United States' service. In half a score of cases since the last war, Congress has rejected such applications for compensation. Besides, both in Congressional acts, and in our national diplomacy, slaves and property are not used as convertible terms. When mentioned in treaties and state papers it is in such a way as to distinguish them from mere property, and generally by a recognition of their _personality_. In the invariable recognition of slaves as _persons_, the United States' const.i.tution caught the mantle of the glorious Declaration, and most worthily wears it. It recognizes all human beings as ”men,” ”persons,” and thus as ”equals.” In the original draft of the Declaration, as it came from the hand of Jefferson, it is alleged that Great Britain had ”waged a cruel war against _human_ nature itself, violating its most sacred rights of life and liberty in the persons of a distant people, carrying them into slavery, * * determined to keep up a market where MEN should be bought and sold,”--thus disdaining to make the charter of freedom a warrant for the arrest of _men_, that they might be shorn both of liberty and humanity.

The celebrated Roger Sherman, one of the committee of five appointed to draft the Declaration of Independence, and a member of the convention that formed the United States' const.i.tution, said, in the first Congress after its adoption: ”The const.i.tution _does not consider these persons, (slaves,) as a species of property_.”--[Lloyd's Cong. Reg. v. 1, p.

313.] That the United States' Const.i.tution does not make slaves ”property,” is shown in the fact, that no person, either as a citizen of the United States, or by having his domicile within the United States'

government, can hold slaves. He can hold them only by deriving his power from _state_ laws, or from the laws of Congress, if he hold slaves within the District. But no person resident within the United States'

jurisdiction, and _not_ within the District, nor within a state whose laws support slavery, nor ”held to service” under the laws of such a state or district, having escaped therefrom, _can be held as a slave_.

Men can hold _property_ under the United States' government though residing beyond the bounds of any state, district, or territory. An inhabitant of the Iowa Territory can hold property there under the laws of the United States, but he cannot hold _slaves_ there under the United States' laws, nor by virtue of the United States' Const.i.tution, nor upon the ground of his United States' citizens.h.i.+p, nor by having his domicile within the United States' jurisdiction. The const.i.tution no where recognizes the right to ”slave property,” _but merely the fact that the states have jurisdiction each in its own limits, and that there are certain ”persons” within their jurisdictions ”held to service” by their own laws_.

Finally, in the clause under consideration ”private property” is not to be taken ”without just compensation.” ”JUST!” If justice is to be appealed to in determining the _amount_ of compensation, let her determine the _grounds_ also. If it be her province to say _how much_ compensation is ”just,” it is hers to say whether _any_ is ”just,”--whether the slave is ”just” property _at all_, rather than a ”_person_”. Then, if justice adjudges the slave to be ”private property,” it adjudges him to be _his own_ property, since the right to one's self is the first right--the source of all others--the original stock by which they are acc.u.mulated--the princ.i.p.al, of which they are the interest. And since the slave's ”private property” has been ”taken,”

and since ”compensation” is impossible--there being no _equivalent_ for one's self--the least that can be done is to restore to him his original private property.

Having shown that in abolis.h.i.+ng slavery, ”property” would not be ”taken for public use,” it may be added that, in those states where slavery has been abolished by law, no claim for compensation has been allowed.

Indeed the manifest absurdity of demanding it seems to have quite forestalled the _setting up_ of such a claim.

The abolition of slavery in the District instead of being a legislative anomaly, would proceed upon the principles of every day legislation. It has been shown already, that the United States' Const.i.tution does not recognize slaves as ”property.” Yet ordinary legislation is full of precedents, showing that even _absolute_ property is in many respects wholly subject to legislation. The repeal of the law of entailments--all those acts that control the alienation of property, its disposal by will, its pa.s.sing to heirs by descent, with the question, who shall be heirs, and what shall be the rule of distribution among them, or whether property shall be transmitted at all by descent, rather than escheat to the estate--these, with statutes of limitation, and various other cla.s.ses of legislative acts, serve to ill.u.s.trate the acknowledged scope of the law-making power, even where property _is in every sense absolute_. Persons whose property is thus affected by public laws, receive from the government no compensation for their losses; unless the state has been put in possession of the property taken from them.

The preamble of the United States' Const.i.tution declares it to be a fundamental object of the organization of the government ”to ESTABLISH JUSTICE.” Has Congress _no power_ to do that for which it was made the depository of power? CANNOT the United States' Government fulfil the purpose for which it was brought into being?

To abolish slavery, is to take from no rightful owner his property; but to ”establish justice” between two parties. To emanc.i.p.ate the slave, is to ”establish justice” between him and his master--to throw around the person, character, conscience; liberty, and domestic relations of the one, _the same law_ that secures and blesses the other. In other words, to prevent by legal restraints one cla.s.s of men from seizing upon another cla.s.s, and robbing them at pleasure of their earnings, their time, their liberty, their kindred, and the very use and owners.h.i.+p of their own persons. Finally, to abolish slavery is to proclaim and _enact_ that innocence and helplessness--now _free plunder_--are ent.i.tled to _legal protection_; and that power, avarice, and l.u.s.t, shall no longer revel upon their spoils under the license, and by the ministration of _law_! Congress, by possessing ”exclusive legislation in all cases whatsoever,” has a _general protective power for_ ALL the inhabitants of the District. If it has no power to protect _one_ man in the District it has none to protect another--none to protect _any_--and if it _can_ protect one man and is _bound_ to do it, it _can_ protect _every_ man--and is _bound_ to do it. All admit the power of Congress to protect the masters in the District against their slaves. What part of the const.i.tution gives the power? The clause so often quoted,--”power of legislation in all cases whatsoever,” equally in the ”_case_” of defending blacks against whites, as in that of defending whites against blacks. The power is also conferred by Art. 1, Sec. 8, clause 15--”Congress shall have power to suppress insurrections”--a power to protect, as well blacks against whites, as whites against blacks. If the const.i.tution gives power to protect _one_ cla.s.s against the other, it gives power to protect _either_ against the other. Suppose the blacks in the District should seize the whites, drive them into the fields and kitchens, force them to work without pay, flog them, imprison them, and sell them at their pleasure, where would Congress find power to restrain such acts? Answer; a _general_ power in the clause so often cited, and an _express_ one in that cited above--”Congress shall have power to suppress insurrections.” So much for a supposed case. Here follows a real one. The whites in the District are _perpetrating these identical acts_ upon seven thousand blacks daily. That Congress has power to restrain these acts in _one_ case, all a.s.sert, and in so doing they a.s.sert the power ”in _all_ cases whatsoever.” For the grant of power to suppress insurrections, is an _unconditional_ grant, not hampered by provisos as to the color, shape, size, s.e.x, language, creed, or condition of the insurgents. Congress derives its power to suppress this _actual_ insurrection, from the same source whence it derived its power to suppress the _same_ acts in the case supposed. If one case is an insurrection, the other is. The _acts_ in both are the same; the _actors_ only are different. In the one case, ignorant and degraded--goaded by the memory of the past, stung by the present, and driven to desperation by the fearful looking for of wrongs for ever to come. In the other, enlightened into the nature of _rights_, the principles of justice, and the dictates of the law of love, unprovoked by wrongs, with cool deliberation, and by system, they perpetrate these acts upon those to whom they owe unnumbered obligations for _whole lives_ of unrequited service. On which side may palliation be pleaded, and which party may most reasonably claim an abatement of the rigors of law? If Congress has power to suppress such acts _at all_, it has power to suppress them _in_ all.

It has been shown already that _allegiance_ is exacted of the slave. Is the government of the United States unable to grant _protection_ where it exacts _allegiance_? It is an axiom of the civilized world, and a maxim even with savages, that allegiance and protection are reciprocal and correlative. Are principles powerless with us which exact homage of barbarians? _Protection is the_ CONSt.i.tUTIONAL RIGHT _of every human.

being under the exclusive legislation of Congress who has not forfeited it by crime_.

In conclusion, I argue the power of Congress to abolish slavery in the District, from Art. 1, sec. 8, clause 1, of the const.i.tution; ”Congress shall have power to provide for the common defence and the general welfare of the United States.” Has the government of the United States no power under this grant to legislate within its own exclusive jurisdiction on subjects that vitally affect its interest? Suppose the slaves in the district should rise upon their masters, and the United States' government, in quelling the insurrection, should kill any number of them. Could their masters claim compensation of the government?

Manifestly not; even though no proof existed that the particular slaves killed were insurgents. This was precisely the point at issue between those masters, whose slaves were killed by the State troops at the time of the Southampton insurrection, and the Virginia Legislature: no evidence was brought to show that the slaves killed by the troops were insurgents; yet the Virginia Legislature decided that their masters were _not ent.i.tled to compensation._ They proceeded on the sound principle, that the government may in self-protection destroy the claim of its subjects even to that which has been recognized as property by its own acts. If in providing for the common defence, the United States'

government, in the case supposed, would have power to destroy slaves both as _property_ and _persons_, it surely might stop _half-way_, destroy them _as property_ while it legalized their existence as _persons_, and thus provided for the common defence by giving them a personal and powerful interest in the government, and securing their strength for its defence.

Like other Legislatures, Congress has power to abate nuisances--to remove or tear down unsafe buildings--to destroy infected cargoes--to lay injunctions upon manufactories injurious to the public health--and thus to ”provide for the common defence and general welfare” by destroying individual property, when such property puts in jeopardy the public weal.

Granting, for argument's sake, that slaves are ”property” in the District of Columbia--if Congress has a right to annihilate property there when the public safety requires it, it may annihilate its existence _as_ property when the public safety requires it, especially if it transform into a _protection_ and _defence_ that which as _property_ perilled the public interests. In the District of Columbia there are, besides the United States' Capitol, the President's house, the national offices, and archives of the Departments of State, Treasury, War, and Navy, the General Post-office, and Patent office. It is also the residence of the President, of all the highest officers of the government, of both houses of Congress, and of all the foreign amba.s.sadors. In this same District there are also seven thousand slaves.

Jefferson, in his Notes on Va. p. 241, says of slavery, that ”the State permitting one half of its citizens to trample on the rights of the other, transforms them into _enemies_;” and Richard Henry Lee, in the Va. House of Burgesses in 1758, declared that to those who held them, ”_slaves must be natural enemies_.” Is Congress so impotent that it _cannot_ exercise that right p.r.o.nounced both by munic.i.p.al and national law, the most sacred and universal--the right of self-preservation and defence? Is it shut up to the _necessity_ of keeping seven thousand ”enemies” in the heart of the nation's citadel? Does the iron fiat of the const.i.tution doom it to such imbecility that it _cannot_ arrest the process that _made_ them ”enemies,” and still goads to deadlier hate by fiery trials, and day by day adds others to their number? Is _this_ providing for the common defence and general welfare? If to rob men of rights excites their hate, freely to restore them and make amends, will win their love.