The Unconstitutionality of Slavery Part 10

But further. The const.i.tution of the United States must be made consistent with itself throughout; and if any of its parts are irreconcilable with each other, those parts that are inconsistent with liberty, justice and right, must be thrown out for inconsistency.

Besides the provisions already mentioned, there are numerous others, in the const.i.tution of the United States, that are entirely and irreconcilably inconsistent with the idea that there either was, or could be, any const.i.tutional slavery in this country.

Among these provisions are the following:

_First._ Congress have power to lay a capitation or poll tax upon the people of the country. Upon whom shall this tax be levied? and who must be held responsible for its payment? Suppose a poll tax were laid upon a man, whom the state laws should pretend to call a slave. Are the United States under the necessity of investigating, or taking any notice of the fact of slavery, either for the purpose of excusing the man himself from the tax, or of throwing it upon the person claiming to be his owner?

Must the government of the United States find a man's pretended owner, or only the man himself, before they can tax him? Clearly the United States are not bound to tax any one but the individual himself, or to hold any other person responsible for the tax. Any other principle would enable the state governments to defeat any tax of this kind levied by the United States. Yet a man's liability to be held personally responsible for the payment of a tax, levied upon himself by the government of the United States, is inconsistent with the idea that the government is bound to recognize him as not having the ownership of his own person.

_Second._ "The congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

This power is held, by the supreme court of the United States, to be an exclusive one in the general government; and it obviously must be so, to be effectual--for if the states could also interfere to regulate it, the states could at pleasure defeat the regulations of congress.

Congress, then, having the exclusive power of regulating this commerce, they only (if any body) can say who may, and who may not, carry it on; and probably even they have no power to discriminate arbitrarily between individuals.--But, in no event, have the _state_ governments any right to say who may, or who may not, carry on "commerce with foreign nations," or "among the several states," or "with the Indian tribes."

Every individual--naturally competent to make contracts--whom the state laws declare to be a slave, probably has, and certainly may have, under the regulations of congress, as perfect a right to carry on "commerce with foreign nations, and among the several states, and with the Indian tribes," as any other citizen of the United States can have--"any thing in the const.i.tution or laws of any state to the contrary notwithstanding." Yet this right of carrying on commerce is a right entirely inconsistent with the idea of a man's being a slave.

Again. It is a principle of law that the right of traffic is a natural right, and that all commerce (that is intrinsically innocent) is therefore lawful, except what is prohibited by positive legislation.

Traffic with the slaves, either by people of foreign nations, or by people belonging to other states than the slaves, has never (so far as I know) been prohibited by congress, which is the only government, (if any,) that has power to prohibit it. Traffic with the slaves is therefore as lawful at this moment, under the const.i.tution of the United States, as is traffic with their masters; and this fact is entirely inconsistent with the idea that their bondage is const.i.tutional.

_Third._ "The congress shall have power to establish post offices and post roads."

Who, but congress, have any right to say who may send, or receive letters by the United States posts? Certainly no one. They have undoubted authority to permit any one to send and receive letters by their posts--"any thing in the const.i.tutions or laws of the states to the contrary notwithstanding." Yet the right to send and receive letters by post, is a right inconsistent with the idea of a man's being a slave.

_Fourth._ "The congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Suppose a man, whom a state may pretend to call a slave, should make an invention or discovery--congress have undoubted power to secure to such individual himself, by patent, the "_exclusive_"--(mark the word)--the "exclusive right" to his invention or discovery. But does not this "_exclusive right_" in the inventor himself, exclude the right of any man, who, under a state law, may claim to be the owner of the inventor?

Certainly it does. Yet the slave code says that whatever is a slave's is his owner's. This power, then, on the part of congress, to secure to an individual the exclusive right to his inventions and discoveries, is a power inconsistent with the idea that that individual himself, and all he may possess, are the property of another.

_Fifth._ "The congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;" also "to raise and support armies;" and "to provide and maintain a navy."

Have not congress authority, under these powers, to enlist soldiers and sailors, _by contract with themselves_, and to pay them their wages, grant them pensions, and secure their wages and pensions to their own use, without asking the permission either of the state governments, or of any individuals whom the state governments may see fit to recognize as the owners of such soldiers and sailors? Certainly they have, in defiance of all state laws and const.i.tutions whatsoever; and they have already a.s.serted that principle by enacting that pensions, paid by the United States to their soldiers, shall not be liable to be taken for debt, under the laws of the states. Have they not authority also to grant letters of marque and reprisal, and to secure the prizes, to a ship's crew of blacks, as well as of whites? To those whom the State governments call slaves, as well as to those whom the state governments call free?--Have not congress authority to make contracts, for the defence of the nation, with any and all the inhabitants of the nation, who may be willing to perform the service? Or are they obliged first to ask and obtain the consent of those private individuals who may pretend to own the inhabitants of this nation? Undoubtedly congress have the power to contract with whom they please, and to secure wages and pensions to such individuals, in contempt of all state authority. Yet this power is inconsistent with the idea that the const.i.tution recognizes or sanctions the legality of slavery.

_Sixth._ "The congress shall have power to provide for the organizing, _arming_ and disciplining the _militia_, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by congress." Also "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions."

Have not congress, under these powers, as undoubted authority to enroll in the militia, and "_arm_" those whom the states call slaves, and authorize them always to keep their arms by them, even when not on duty, (that they may at all times be _ready_ to be "called forth" "to execute the laws of the Union, suppress insurrections, and repel invasions,") as they have thus to enroll and arm those whom the states call free? Can the state governments determine who may, and who may not compose the militia of the "United States?"

Look, too, at this power, in connection with the second amendment to the const.i.tution; which is in these words:

"A well regulated militia being necessary to the security of a free state, the right of _the people_ to keep and bear arms shall not be infringed."

These provisions obviously recognize the natural right of all men "to keep and bear arms" for their personal defence; and prohibit both congress and the state governments from infringing the right of "the people"--that is, of _any_ of the people--to do so; and more especially of any whom congress have power to include in their militia. This right of a man "to keep and bear arms," is a right palpably inconsistent with the idea of his being a slave. Yet the right is secured as effectually to those whom the states presume to call slaves, as to any whom the states condescend to acknowledge free.

Under this provision any man has a right either to give or sell arms to those persons whom the states call slaves; and there is no _const.i.tutional_ power, in either the national or state governments, that can punish him for so doing; or that can take those arms from the slaves; or that can make it criminal for the slaves to use them, if, from the inefficiency of the laws, it should become necessary for them to do so, in defence of their own lives or liberties; for this const.i.tutional right to keep arms implies the const.i.tutional right to use them, if need be, for the defence of one's liberty or life.

_Seventh._ The const.i.tution of the United States declares that "no state shall pa.s.s _any_ law impairing the obligation of contracts."

"The obligation of contracts," here spoken of, is, of necessity, the _natural obligation_; for that is the only real or true obligation that any contracts can have. It is also the only obligation, which courts recognize in any case, except where legislatures arbitrarily interfere to impair it. But the prohibition of the const.i.tution is upon the states' pa.s.sing any law whatever that shall impair the natural obligation of men's contracts. Yet, if slave laws were const.i.tutional, they would effectually impair the obligation of all contracts entered into by those who are made slaves; for the slave laws must necessarily hold that all a slave's contracts are void.

This prohibition upon the states to pa.s.s _any_ law impairing the natural obligation of men's contracts, implies that all men have a const.i.tutional right to enter into all contracts that have a natural obligation. It therefore _secures_ the const.i.tutional right of all men to enter into such contracts, and to have them respected by the state governments. Yet this const.i.tutional right of all men to enter into all contracts that have a natural obligation, and to have those contracts recognized by law as valid, is a right plainly inconsistent with the idea that men can const.i.tutionally be made slaves.

This provision therefore absolutely prohibits the pa.s.sage of slave laws, because laws that make men slaves must necessarily impair the obligation of all their contracts.

_Eighth._ Persons, whom some of the state governments recognize as slaves, are made eligible, by the const.i.tution of the United States, to the office of president of the United States. The const.i.tutional provision on this subject is this:

"No person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this const.i.tution, shall be eligible to the office of president; neither shall any person be eligible to that office, who shall not have attained the age of thirty-five years, and been fourteen years a resident of the United States."

According to this provision, _all_ "persons",[23] who have resided within the United States fourteen years, have attained the age of thirty-five years, and are either _natural born citizens, or were citizens of the United States at the time of the adoption of the const.i.tution_, are eligible to the office of president. No other qualifications than these being required by the const.i.tution, no others can be legally demanded. The only question, then, that can arise, is as to the word "citizen." Who are the persons that come within this definition, as here used? The clause itself divides them into two cla.s.ses, to wit, the "natural born," and those who were "citizens of the United States at the time of the adoption of the const.i.tution." In regard to this latter cla.s.s, it has before been shown, from the preamble to the const.i.tution, that all who were "people of the United States,"

(that is, permanent inhabitants,) at the time the const.i.tution was adopted, were made citizens by it. And this clause, describing those eligible to the office of president, implies the same thing. This is evident; for it speaks of those who were "citizens of the _United States_ at the time of the adoption of the const.i.tution." Now there clearly could have been no "citizens of the United States, at the time of the adoption of the const.i.tution," unless they were made so by the const.i.tution itself; for there were _no_ "citizens of the _United States_" _before_ the adoption of the const.i.tution. The Confederation had no citizens. It was a mere league between the state governments. The separate states belonging to the confederacy had each their own citizens respectively. But the confederation itself, as such, had no citizens.

There were, therefore, no "citizens of the United States," (but only citizens of the respective states,) before the adoption of the const.i.tution.--Yet this clause a.s.serts that immediately on the adoption, or "at the time of the adoption of this const.i.tution," there _were_ "citizens of the United States." Those, then, who were "citizens of the United States at the time of the adoption of the const.i.tution," were necessarily those, and only those, who had been made so by the adoption of the const.i.tution; because they could have become citizens at that precise "time" in no other way. If, then, any persons were made citizens by the adoption of the const.i.tution, who were the _individuals_ that were thus made citizens? They were "the people of the United States," of course--as the preamble to the const.i.tution virtually a.s.serts. And if "the people of the United States" were made citizens by the adoption of the const.i.tution, then _all_ "the people of the United States" were necessarily made citizens by it--for no discrimination is made by the const.i.tution between different individuals, "people of the United States"--and there is therefore no means of determining who were made citizens by the adoption of the const.i.tution, unless _all_ "the people of the United States" were so made. Any "person," then, who was one of "the people of the United States" "at the time of the adoption of this const.i.tution," and who is thirty-five years old, and has resided fourteen years within the United States, is eligible to the office of president of the United States. And if every such person be eligible, under the const.i.tution, to the office of president of the United States, the const.i.tution certainly does not recognize them as slaves.

The other cla.s.s of citizens, mentioned as being eligible to the office of president, consists of the "natural born citizens." Here is an implied a.s.sertion that _natural birth_ in the country gives the right of citizenship. And if it gives it to one, it necessarily gives it to all--for no discrimination is made; and if all persons, born in the country, are not ent.i.tled to citizenship, the const.i.tution has given us no test by which to determine who of them are ent.i.tled to it.

Every person, then, born in the country, and that shall have attained the age of thirty-five years, and been fourteen years a resident within the United States, is eligible to the office of president. And if eligible to that office, the const.i.tution certainly does not recognize him as a slave.

Persons, who are "citizens" of the United States, according to the foregoing definitions, are also eligible to the offices of representative and senator of the United States; and therefore cannot be slaves.

_Ninth._ The const.i.tution declares that "the trial of all crimes, except in cases of impeachment, shall be _by jury_."--Also that "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

It is obvious that slaves, if we had any, might "levy war against the United States," and might also "adhere to their enemies, giving them aid and comfort." It may, however, be doubted whether they could commit the crime of treason--for treason implies a breach of fidelity, trust or allegiance, where fidelity, trust or allegiance is due. And it is very clear that slaves could owe allegiance, trust or fidelity, neither to the United States, nor to the state governments; for allegiance is due to a government only from those who are protected by it. Slaves could owe to our governments nothing but resistance and destruction. If therefore they were to levy war against the United States, they might not perhaps be liable to the technical charge of treason; although there would, in reality, be as much treason in their act, as there would of any other crime--for there would, in truth, be neither legal nor moral crime of any kind in it. Still, the government would be compelled, in order to protect itself against them, to charge them with some crime or other--treason, murder, or something else. And this charge, whatever it might be, would have to be tried by a jury. And what (in criminal cases,) is the "trial by jury?" It is a trial, both of the law and the fact, by the "peers," or equals, of the person tried. Who are the "peers" of a slave? None, evidently, but slaves. If, then, the const.i.tution recognizes any such cla.s.s of persons, in this country, as slaves, it would follow that for any crime committed by them against the United States, they must be tried, both on the law and the facts, by a jury of slaves. The result of such trials we can readily imagine.

Does this look as if the const.i.tution guarantied, or even recognized the legality of slavery?

_Tenth._ The const.i.tution declares that "The privilege of the writ of _habeas corpus_ shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."

The privilege of this writ, wherever it is allowed, is of itself sufficient to make slavery impossible and illegal. The object and prerogative of this writ are to secure to all persons their natural right to personal liberty, against all restraint except from the government; and even against restraints by the government itself, unless they are imposed in conformity with established general laws, and upon the charge of some legal offence or liability. It accordingly liberates all who are held in custody against their will, (whether by individuals or the government,) unless they are held _on some formal writ or process, authorized by law, issued by the government, according to established principles, and charging the person held by it with some legal offence or liability_. The principle of the writ seems to be, that no one shall be restrained of his natural liberty, unless these three things conspire; 1st, that the restraint be imposed by _special command of the government_; 2d, that there be a general law authorizing restraints for specific causes; and, 3d, that the government, previously to issuing process for restraining any particular individual, shall itself, by its proper authorities, take express cognizance of, and inquire cautiously into the facts of each case, and ascertain, by reasonable evidence, that the individual has brought himself within the liabilities of the general law. All these things the writ of _habeas corpus_ secures to be done, before it will suffer a man to be restrained of his liberty; for the writ is a mandate to the person holding another in custody, commanding him to bring his prisoner before the court, and show the authority by which it holds him. Unless he then exhibit a legal precept, warrant or writ, issued by, and bearing the seal of the government, specifying a legal ground for restraining the prisoner, and authorizing or requiring him to hold him in custody, he will be ordered to let him go free. Hence all the keepers of prisons, in order to hold their prisoners against the authority of this writ, are required, in the case of each prisoner, to have a written precept or order, bearing the seal of the government, and issued by the proper authority, particularly describing the prisoner by name or otherwise, and setting forth the legal grounds of his imprisonment, and requiring the keeper of the prison to hold him in his custody.

Now the master does not hold his slave in custody by virtue of any formal or legal writ or process, either authorized by law, or issued by the government, or that charges the slave with any legal offence or liability. A slave is incapable of incurring any legal liability, or obligation to his master. And the government could, with no more consistency, grant a writ or process to the master, to enable him to hold his slave, than it could to enable him to hold his horse. It simply recognizes his right of property in his slave, and then leaves him at liberty to hold him by brute force, if he can, as he holds his ox, or his horse--and not otherwise. If the slave escape, or refuse to labor, the slave code no more authorizes the government to issue legal process against the slave, to authorize the master to catch him, or compel him to labor, than it does against a horse for the same purpose.--The slave is held simply as property, by individual force, without legal process.

But the writ of _habeas corpus_ acknowledges no such principle as the right of property in man. If it did, it would be perfectly impotent in all cases whatsoever; because it is a principle of law, in regard to property, that simple possession is _prima facie_ evidence of ownership; and therefore any man, who was holding another in custody, could defeat the writ by pleading that he owned his prisoner, and by giving, as proof of ownership, the simple fact that he was in possession of him. If, therefore, the writ of _habeas corpus_ did not, of itself, involve a denial of the right of property in man, the fact stated in it, that one man was holding another in custody, would be _prima facie_ evidence that he owned him, and had a right to hold him; and the writ would therefore carry an absurdity in its face.

The writ of _habeas corpus_, then, _necessarily_ denies the right of property in man. And the const.i.tution, by declaring, without any discrimination of persons, that "the privilege of this writ shall not be suspended,"--that is, shall not be denied to any human being--has declared that, under the const.i.tution, there can be no right of property in man.

This writ was unquestionably intended as a great const.i.tutional guaranty of personal liberty. But unless it denies the right of property in man, it in reality affords no protection to any of us against being made slaves. If it does deny the right of property in man, the slave is ent.i.tled to the privilege of the writ; for he is held in custody by his master, simply on the ground of property.

Mr. Christian, one of Blackstone's editors, says that it is this writ that makes slavery impossible in England. It was on this writ, that Somerset was liberated. The writ, in fact, a.s.serts, as a great const.i.tutional principle, the natural right of personal liberty. And the privilege of the writ is not confined to citizens, but extends to all human beings.[24] And it is probably the only absolute guaranty, that our national const.i.tution gives to foreigners and aliens, that they shall not, on their arrival here, be enslaved by those of our state governments that exhibit such propensities for enslaving their fellow-men. For this purpose, it is a perfect guaranty to people who come here from any part of the world. And if it be such a guaranty to foreigners and aliens, is it no guaranty to those born under the const.i.tution? Especially when the const.i.tution makes no discrimination of persons?

_Eleventh._ "The United States shall guaranty to every state in this union a republican form of government, and shall protect each of them against invasion; and, on application of the legislature, or of the executive, (when the legislature cannot be convened,) against domestic violence."

Mark the strength and explicitness of the first clause of this section, to wit, "The United States _shall guarantee_ to every state in this union a republican form of government." Mark also especially that this guaranty is one of liberty, and not of slavery.

We have all of us heretofore been compelled to hear, from individuals of slaveholding principles, many arrogant and bombastic a.s.sertions, touching the const.i.tutional "_guaranties_" given to _slavery_; and persons, who are in the habit of taking their const.i.tutional law from other men's mouths, instead of looking at the const.i.tution for themselves, have probably been led to imagine that the const.i.tution had really given such guaranties in some explicit and tangible form. We have, nevertheless, seen that all those pretended guaranties are at most nothing but certain vague hints, insinuations, ciphers and innuendoes, that are imagined to be covered up under language which legally means nothing of the kind. But, in the clause now cited, we do have an explicit and peremptory "guaranty," depending upon no implications, inferences or conjectures, and couched in no uncertain or ambiguous terms. And what is this guaranty? Is it a guaranty of slavery? No. It is a guaranty of something flatly incompatible with slavery: a guaranty of "a republican form of government to every state in this union."

And what is "a republican form of government?" It is where the government is a commonwealth--the property of the public, of the ma.s.s of the people, or of the entire people. It is where the government is made up of, and controlled by the combined will and power of the public, or the ma.s.s of the people--and where, of natural consequence, it will have, for its object, the protection of the rights of all. It is indispensable to a republican form of government, that the public, the ma.s.s of the people, if not the entire people, partic.i.p.ate in the grant of powers to the government, and in the protection afforded by the government. It is impossible, therefore, that a government, under which any considerable number of the people, (if indeed any number of the people,) are disfranchised and enslaved, can be a republic. A slave government is an oligarchy; and one too of the most arbitrary and criminal character.

Strange that men, who have eyes capable of discovering in the const.i.tution so many covert, implied and insinuated guaranties of crime and slavery, should be blind to the legal import of so open, explicit and peremptory a guaranty of freedom, equality and right.

Even if there had really been, in the const.i.tution, two such contradictory guaranties, as one of liberty or republicanism in every state of the Union, and another of slavery in every state where one portion of the people might succeed in enslaving the rest, one of these guaranties must have given way to the other--for, being plainly inconsistent with each other, they could not have stood together. And it might safely have been left either to legal or to moral rules to determine which of the two should prevail--whether a provision to perpetuate slavery should triumph over a guaranty of freedom.

But it is constantly a.s.serted, in substance, that there is "_no propriety_" in the general government's interfering in the local governments of the states. Those who make this a.s.sertion appear to regard a state as a single individual, capable of managing his own affairs, and of course unwilling to tolerate the intermeddling of others. But a state is not an individual. It is made up of large numbers of individuals, each and all of whom, amid the intestine mutations and strifes to which states are subject, are liable, at some time or other, to be trampled upon by the strongest party, and may therefore reasonably choose to secure, in advance, some external protection against such emergencies, by making reciprocal contracts with other people similarly exposed in the neighboring states. Such contracts for mutual succor and protection, are perfectly fit and proper for any people who are so situated as to be able to contribute to each other's security. They are as fit and proper as any other political contracts whatever; and are founded on precisely the same principle of combination for mutual defence--for what are any of our political contracts and forms of government, but contracts between man and man for mutual protection against those who may conspire to injure either or all of them? But these contracts, fit and proper between all men, are peculiarly appropriate to those, who, while they are members of various local and subordinate a.s.sociations, are, at the same time, united for specific purposes, under one general government. Such a mutual contract, between the people of all the states, is contained in this clause of the const.i.tution. And it gives to them all an additional guaranty for their liberties.

Those who object to this guaranty, however, choose to overlook all these considerations, and then appear to imagine that their notions of "propriety" on this point, can effectually expunge the guaranty itself from the const.i.tution. In indulging this fancy, however, they undoubtedly overrate the legal, and perhaps also the moral effect of such superlative fastidiousness; for even if there were "_no propriety_"