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A LECTURE



DELIVERED



IN THE TREMONT TEMPLE,

BOSTON, MASSACHUSETTS,

ON THE 24th JANUARY, 1856,



^AX^^



E. TOOMBS.



SLAVERY— ITS CONSTITUTIONAL STATUS ITS INFLUENCE ON THE AFRICAN RACE

AND SOCIETY.



I propose to submit to you tLis evening some considerations and reflections
upon two points.

\st. The constitutional powers and duties of the Federal Government in rela-
tion to Domestic Slaverv.

Id. The influence of Slavery as it exists in the United States upon the Slave

and Society.

Under the first head I shall endeavor to show that Congress has no power to
limit, restrain, or in any manner to impair slavery; but, on the contrary, itis
bound to protect and maintain it in the States where it exists, and wherever its
flag floats, and its jurisdiction is paramount.

On the second point, I maintain that so long as tbe African and Caucassian
races co-exist in the same society, that the subordination of the African is its nor-
mal, necessary and proper condition, and that such subordination is the condition
best calculated to promote the highest interest and the greatest happiness of both
races, and consequently of the whole society : and that the abolition of slavery,
under these conditions, is not a remedy for any of the evils of the systein. I ad-
mit that the truth of these propositions, stated under the second point, is essen-
tially necessary to the existence and permanence of the system. They rest on
the truth that the white is the superior race, and the black the inferior, and that
subordination, with or without law, will be the status of the African m this mix-
ed society, and, therefore, it is the interest of both, and especially of the black
race, and of the whole society, that this status should be fixed, controlled, and pro-
teeted by law. The perfect equality of the superior race, and the legal subordi-
nation of the inferior, are the foundations on which we have erected our republican
systems. Their soundness must be tested by their conformity to the sovereignty
of right, the universal law which ought to govern all people in all centuries. This
soveieignty of right is justice, commonly called natural justice, not the vague un-
certainlmaginings of men, but natural justice as interpreted by the written oracles,.
and read by the''light of the revelations of nature's God. In this sense I recog-
nize a " higher law^' and the duty of all men, by legal and proper means, to bring,
every society in conformity with it.



I proceed to the consideration of the first point.

The old thirteen States, before the revolution, were dependent colonies of Great
Britain — each was a separate and distinct political community, with different laws,
and each became an independent and sovereign State by the declaration of Inde-
pendence. At the time of this declaration slavery was a fact, and a fact recog-
nized by law in each of them, and tbe slave trade was lawful commerce by the
laws of nations and the practice of mankind. This declaration was drafted by a
slaveholder, adopted by the representatives of slaveholders, and did not emanci-
pate a single Afiican slave ; but, on the contrary, one of the charges which it sub-
mitted to the civilized world against King George was, that he had attempted to
excite "domestic insurrection among us." At the time of this declaration we had
no common government ; the articles of confederation were submitted to the rep-
resentatives of the States eight days afterwards, and were not adopted by all of
the States until 1*781. These loose and imperfect articles of union sufficed to
bring us successfully through the revolution. Common danger was a stronger
bond of union than these articles of confederation, after that ceased, they w«re
inadequate to the purposes of peace. They did not emancipate a single slave.

The Constitution was framed by delegates elected by the State legislatures. It
was an emanation from the sovereign States as independent, separate, communi-
ties. It was ratified by conventions of these separate States, each acting for itself.
The members of these conventions represented the sovereignty of each State, but
they were not elected by the whole people of either of the States. Minois, wo-
men, slaves, Indians, Africans, bond and free, were excluded from participating in
this act of sovereignty. Neither were all the white male inhabitants, over twenty-
one years old, allowed to participate in it. Some were excluded because they had no
laud, others for the want of good characters, others again because they were non-
freemen, and a large number were excluded for a great variety of still more unim-
portant reasons. None exercised this high privilege except those upon whom
each State, for itself, had adjudged it wise, safe, and prudent to confer it.

By this Constitution these States granted to the Federal Government certain
well defined and clearly specified powers in orde: to " to make a more -perfect
Union, establish justice, insure domestic tranquility, 2)rovide for the common de-
fence and general welfare, and to secure the blessings of liberty to {themselves and
their) posterityT And with great wisdom and forecast this Constitution lays
down a plain, certain, and sufficient rule for its own interpretation, by declaring
that " the poioers not herein delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively, or to the
people.''^ The Federal Government is therefore a limited Government. It is lim-
ited expressly to the exercise of the enumerated powers, and of such others only
^^ which shall be necessary and i^roper to carry into execution''' these enumerated
powers. The declaration of the purposes for which these powers were granted can
neither increase or diminish them. If any one or all of them were to fail by reason
of the insufficiency of the granted powers to secure them, that would be a good
reason for a new gi'ant, but could never enlarge the granted powers. That dec-
laration was itself a limitation instead of an enlargement of the granted powers.
If a power expressly granted be used for any other purpose than those declared,
such use would be a violation of the grant and a fraud on the Constitution, and
therefore it follows, that if anti-slavery action by Congress is not warranted by
any express power, nor within any of the declared purposes for which any such
,power was granted, the exercise of even a granted power to effect that action, under
.any pretence whatever, would fall under the just condemnation of the Constitution.
The history of the times, and the debates in the convention which framed the
Constitution, show that this whole subject was much considered by them, and
"perplexed them in the extreme ;" and these provisions of the Constitution which
related to it, were earnestly considered by the State conventions, which adopted
it. Incipient legislation, providing for emancipation, had already been adopted by



some of the States. Massacliusetts had declared that slavery was extinguished in
her limits by her bill of rights; the African slave-trade had been legislated against
in many of the States, including Virginia and Maryland, and North Carolina. The
public mind was unquestionably tending towards emancipation. This feeling dis-
played itself in the South as well as in the North. Some of the delegates from
the present slaveholding States thought that the power to abolish, not only the
African slave-trade, but slavery in the States, ought to be given to the Federal
Government; and that the Constitution did not take this shape, was made one of
the most prominent objections to it by Luther Martin, a distinguished member of
the convention from Maryland, and Mr. Mason of Virginia, was not far behind
him in his emancipation principles ; Mr. Madison sympathised to a great extent,
to a much greater extent than some of the representatives from Massachusetts, in
this anti-slavery feeling; hence we find that anti-slavery feelings were extensive-
ly indulged in by many members of the convention, both from slaveholding and
non-slaveholdiug States. This fact has led to many and grave errors ; artful and
unscrupulous men have used it much to deceive the northern public. Mere opin-
ions of individual men have been relied upon as authoritative expositions of the
Constitution. Om' reply to them is simple, direct: they were not the opinions of
the collective body of the people, who made, and who had the right to make this
government ; and, therefore, they found no place in the organic law, and by that
alone are we bound ; and, therefore, it concerns us rather to know what was the
collective will of the whole, as afBrmed by the sovereign States, than what were
the opinions of individual men in the convention. We wish to know what was
done by the whole, not what some of the members thought was best to be done.
The result of the struggle was, that not a single clause was inserted in the Con-
stitution giving power to the Federal Government any where, either to abolish,
limit, restrain, or in any other manner to impair the system of slavery in the
United States : but on the contrary every clause which was inserted in the Con-
stitution on this subject, does in fact, and was intended either to increase it, to
strengthen it, or to protect it. To support these positions, I appeal to the Consti-
tution itself, to the contemporaneous and all subsequent authoritative interpreta-
tions of it. The Constitution provides for the increase of slavery by prohibiting
the suppression of the slave-trade for twenty years after its adoption. It declares
in the Ist clause of the 9th section of the first article, that " the migration or im-
portation of such persons as any of the States now existing shall think proper to
admit, shall not be pirohibited by the Congress prior to the year 1808, but a tax or
duty may be imposed on such importation, not exceeding ten dollars for each per-
son^ After that time it was left to the discretion of Congress to prohibit, or not
to prohibit, the African slave-trade. The extension of this trafic in Africans from
1800 to 1808, was voted for by the whole of the New England States, including
Massachusetts, and opposed by Virginia and Delaware; and the clause was insert-
ed in the Constitution by votes of the New England States. It fostered an active
and profitable trade for New England capital and enterprise for twenty years, by
which a large addition was made to the original stock of Africans in the United
States, and thereby it increased slavery. This clause of the Constitution was
specially favored, it was one of those clauses which was protected against amend-
ment by article fifth.

Slavery is strengthened by the 3d clause, 2d section of 1st article, which fixes
the basis of representation according to numbers by providing that the '''â– numbers
shall be determined by adding to the ivhole number of free persons, including those
bound to service for a term of years, and excluding Indians not taken, three-fifths
of all other persons. " This provision strengthens slavery by given the existing
slaveholding States many more representatives in Congress than they would have
if slaves were considered only as property ; it was much debated, but finally
adopted, with the full understanding of its import, by a great majority.

The Constitution protects it, impliedly, by withholding all power to injure it.



or limit its duration, but it protec/s it expressly hy the Sd clause of 2d section
of the ith article, hy the 4th section of the 4th article, and hy the \5th clause of
the 1st article. The 3d clause of the 2d section, 4th article, provides that " no'
persons held to service or labor in one State by the laws thereof, escaping into
another, shall in consequence of any law or regulation therein, be discharged from
such service or labor, but shall be delivered up on claim of the party to whom
such service or labor may be due. " The 4th section of the 4th article provides
that Congress shall protect each State " on application of the legislature (or of
the executive when the legislature cannot be convened) against domestic violence."
The loth clause of the 8th section of the 1st article, makes it the duty of
Cono-ress " to provide for calling forth the militia to execute the laws of the Union,
suppress insurrections, and repel invasions," The first of these three clauses last
referred to protects slavery by following the esoai)ing slave iuto nori-slaveholding
States and returning him to bondage, the other clauses place the whole military
power of the Republic in the hands of the Federal Government to repress " domes-
tic violence" and " insurections." Under this Constitution, if he flies to other
lands, the supreme law follows, captures, and returns him ; if he resists the law by
which he is held in bondage, the same Constitution brings its military power to
liis subjugation. There is no limit to this ])rotection, it must exist as long as any
of the States tolerate domestic slavery and the Constitution unaltered, endures.
None of these clauses admit of misconception or doubtful construction. They
were not incorporated into the charter of our liberties by surprise or inattention,
they were each and all of them introduced into that body, debated, referred to
committees, reported upon, and adopted. Our construction of them is supported
by one unbroken and harmonious current of decisions and adjudications by the
Executive, Legislature, and Judicial Departments of the Government, State and
Federal, from President Washington to President Pierce. Twenty representatives
in the Congress of the United States hold their seats to-day, by the virtue of one
of these clauses. The African slave trade was carried on its whole appointed
period under another of them. Thousands of slaves have been delivered up under
another, and it is a just cause of congratulation to the whole country that no occa-
sion has occurred to call into action the remaining clauses which have been quoted.
These constitutional provisions were generally acquiesced in even by those who
did not approve them, until a new and less obvious question sprung out of the ac-
quisition of territory. When the Constitution was adopted the question of slave-
ry had been settled in the northwest territory by the articles of session of that ter-
ritory by the State of Virginia, and at that time the United States had not an acre
of land over which it claimed unfettered jurisdiction except a disputed claim on our
southwestern boundary, which will hereafter be considered in its appropriate con-
nection. The acquisition of Louisiana imposed upon Congress the necessity of its
government. This duty was assumed and performed for the general benefit of the
whole country without challenge or question for nearly seventeen years. Equity and
good faith shielded it from criticism. But in 1819, thirty years after the Consti-
tution was adopted, upon application of Missouri for admission into the Union, the
extraordinary pretension was, for the first time, asserted by a majority of the non-
slaveholding States, that Congress not only had the power to prohibit the exten-
sion of slavery into new territories of the Republic, but that it had power to com-
pel new States seeking admission iuto the Union to prohibit it in their own con-
stitutions and mould their domestic policy in all respects to suit the opinions, whims,
or caprices of the Federal Government. This novel and extraordinary pretension
subjected the whole power of Congress over the territories to the severest criticism.
Abundant authority was found in the Constitution to manage this common domain
merely as property ; the 2d clause, 3d section of the 4tli article, declares " that
Congress shall have power to dispose of and make all needful rules and regulations
respecting the territory or other property helonging to the United States; and no-
thing in this Constitution shall he so construed as to prejudice any claims of the



5

United States or of any particular Stated But tliis clause was rightfully adjudi-
cated by the supreme judicial authority not to confer on Congress general jurisdic-
tion over territories, but by its terms to restrain that jurisdiction to their manage-
ment as property, and oven without that adjudication, it would not be difficult to
prove the utter disregard of all sound principles of construction of this attempt to
expand this simple duty "to dispose of and make all needful rules and regulations
concerning the territory and other property of the United States" into this gigantic
assumption of unlimited power in all cases whatsoever over the territories. When
the Constitution seeks to confer this power, it uses appropriate language ; when it
wished to confer this power over the District of Columbia and the places to be
acquired for forts, magazines, and arsenals, it gives Congress power " to exercise
exclusive legislation in all cases whatsoever over them." This is explicit, it is apt
language to express a particular purpose, and no ingenuity can construe the clause
concerning the territories into the same meaning.

This construction was so clear that Congress was then driven to look for power
to govern its acquisitions in the necessity and propriety of it as a means of exe-
cuting the express power to make treaties. The right to acquire territory under
the treaty-making power, was itself an implication, and an implication whose
rightfulness was denied by Mr. Jefferson, who exercised it ; the right to govern
being claimed as an incident of the right to acquire, was then but an implication
of an implication, and the power to exclude slavery therefrom was still another
remove from the fountain of all power — express grant. But whether this
power to prohibit slavery in the common territories be claimed from the one source
or the other, it cannot be sustained upon any sound rule of constitutional con-
struction. The power is not expressly granted. Then unless it can be shown to
be both "necessary and proper" in order to the just execution of a granted power,
the constitutional argument against it is complete. This remains to be shown by
the advocates of this power. Admit the power in Congress to govern the terri-
tories until they shall be admitted as States into the Union — derive it either from
the clause of the Constitution last referred to, or from the treaty making power,
this power to prohibit slavery is not an incident to it in either case, because it is
neither " necessary nor proper" to its execution, — that it is not necessary to execute
the treaty-making power, is shown from the fact that the treaty power not only
was never used for this purpose, but can be wisely and well executed without it,
and has been repeatedly used to increase and protect slavery. The acquisitions
of Louisiana and Florida are examples of its use without the exercise of this pre-
tended " necessary and proper " incident. Numerous treaties and conventions,
with both savage and civilized nations, from the foundation of the Government,
demanding and receiving indemnities for injuries, to this species of property are
conclusive against this novel pretension. That it is not necessary to the execution
of the power "to make needful rules and regulations respecting the territory and
other property of the United States," is proven from the fact that seven territories
have been governed by Congress, and trained into sovereign States, without its ex-
ercise. It is not proper, because it seeks to use an implied power for other and
different purposes from any specified, expressed or intended by the grantors. The
purpose is avowed to be, to limit, restrain, weaken, and finally crush out shivery,
whereas the grant expressly j^rovides for strengthening and protecting it. It is
not proper, because it violates the fundamental condition of the Union — the
equality of the States. The States of the Union are all political equals — each
State has the same rights as every other State — no more, no less. The exercise
c f this prohibition vioLites this equality and violates justice. By the laws of na-
tions, acquisitions, either by purchase or conquest, even in despotic governments,
enure to the benefit of all of the subjects of the State ; the reason given for this
principle, by the most approved publicists, is, that they are the fruits of the com-
mon blood and treasure. This prohibition destroys this equality, excludes a part of
the joint owners from an equal participation and enjoyment of the common do-



main and against justice and riglit, appropriates it to the greater number. There-
fore so far from being a necessary and proper means of executing granted powers,
it is' an arbitrary and despotic usurpation, against the letter, tlie spirit, and the
decLared purposes of the Constitution ; for its exercise neither " promotes a more
perfect union, nor establishes justice, nor insures domestic tranquility, nor provides
for the common defence, nor promotes the general -welfare, nor secures the bless
ings of liberty to ourselves or our posterity," but on the contrary, puts in jeop-
ardy all these inestimable blessings. It loosens the bonds of union, seeks to
establish injustice, disturbs doinestic tranquility, weakens the common defence,
and endangers the general welfare by sowing hatreds and discords among our
people, and puts in eminent peril the liberties of the white race, by whom and
for whom the Constitution was made, in a vain effort, to bring them down to an
equality with the African or to raise the African to an equality with them. Pro-
vidence has ordered it otherwise, and vain will be the efforts of man to resist this
decree. This effort is as wicked as it is foolish and unauthorized. It does not
benefit, but injures the black race ; penning them up in the old States will neces-
sarily make them more wretched and miserable, but will not strike a fetter from
their limbs. It is a simple wrong to the white race, but it is the refinement of
cruelty to the blacks. Expansion is as necessary to the increased comforts of the
slave as to the prosperity of the master.

The constitutional construction of this point by the South works no wrong to
any portion of the Republic, to no sound rules of construction, and promotes the
declared purposes of the Constitution. We simply propose that the common terri-
tories be left open to the common enjoyment of all the people of the United States,
that they shall be protected in their persons and property by the Federal Govern-
ment until its authority is superseded by a State constitution, and then we propose
that the character of the domestic institutions of the new State be determined by
the freemen thereof. This is justice — this is constitutional equality.

But those who claim the power in behalf of Congress to exclude slavery from
the common territories, rely rather on precedent and authority than upon prin-
ciple to support the pretension. In utter disregard of the facts, they boldly pro-
claim that Congress has from the beginning of the Government, uniformly assert-
ed, and repeatedly exercised this power. This assertion I will proceed to show is
not supported by a single precedent up to 1820. Before that time the general
duty to protect this great interest equally with every other, both in the tenito-
ries and elsewhere, was universally admitted and fairly performed by eveiy De-
partment of the Government. The act of lY93 was passed to secure the delivery
up of fugitives from labor, escaping to the non-slaveholding States ; our navigation
laws authorized their transportation on the high seas, the Government demanded
and frequently received compensation for owners of slaves, for injuries sustained in
these lawful voyages by the interference of Foreign governments. It not only-
protected this property on the high seas, but followed it to foreign lands where it
had been driven by the dangers of the sea, and protected it when cast even
within the jurisdiction of hostile laws. It was protected against the invasions
of Indians by your military p«wer and public treaties. In your statute book
are to be found numerous treaties from the beginning of the Government to
this time, compelling the Indian tribes to pay for slave property captured or
destroyed by them in peace or war, and your laws regulating intercourse -v\'ith
the Indian tribes on our borders made permanent provision for its protection.