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Barbadoes, Bermudas, Bahamas, the Mauritius, St. Christopher's, Nevis,
the Virgin Islands, Antigua, Montserrat, Dominica, St. Vincents,
Grenada, Berbice, Tobago, St. Lucia, Trinidad, Honduras, Demarara, and
the Cape of Good Hope, on the 1st of August, 1834. But waving details,
suffice it to say, that England, France, Spain, Portugal, Sweden,
Denmark, Austria, Prussia, and Germany, have all and often given their
testimony to the competency of the law to abolish slavery. In our own
country, the Legislature of Pennsylvania passed an act of abolition in
1780, Connecticut, in 1784; Rhode Island, 1784; New-York, 1799;
New-Jersey, in 1804; Vermont, by Constitution, in 1777; Massachusetts,
in 1780; and New Hampshire, in 1784.

When the competency of the law-making power to abolish slavery, has thus
been recognised every where and for ages, when it has been embodied in
the highest precedents, and celebrated in the thousand jubilees of
regenerated liberty, is it forsooth an achievement of modern discovery,
that such a power is a nullity? - that all these acts of abolition are
void, and that the millions disenthralled by them, are, either
themselves or their posterity, still legally in bondage?

4. _Legislative power has abolished slavery in its parts_. The law of
South Carolina prohibits the working of slaves more than fifteen hours
in the twenty-four. [_See__Brevard's Digest_, 253.] In other words, it
takes from the slaveholder his power over nine hours of the slave's time
daily; and if it can take nine hours it may take twenty-four - if
two-fifths, then five-fifths. The laws of Georgia prohibit the working
of slaves on the first day of the week; and if they can do it for the
first, they can for the six following. Laws embodying the same principle
have existed for ages in nearly all governments that have tolerated
slavery.

The law of North Carolina prohibits the "immoderate" correction of
slaves. If it has power to prohibit _immoderate_ correction, it can
prohibit _moderate_ correction - _all_ correction, which would be virtual
emancipation; for, take from the master the power to inflict pain, and
he is master no longer. Cease to ply the slave with the stimulus of
fear, and he is free. Laws similar to this exist in slaveholding
governments generally.

The Constitution of Mississippi gives the General Assembly power to make
laws "to oblige the owners of slaves to _treat them with humanity_." The
Constitution of Missouri has the same clause, and an additional one
making it the DUTY of the legislature to pass such laws as may be
necessary to secure the _humane_ treatment of the slaves. This grant of
power to those legislatures empowers them to decide what _is_ and what
is _not_ "humane treatment." Otherwise it gives no "power" - the clause
is mere waste paper, and flouts in the face of a mocked and befooled
legislature. A clause giving power to require "humane treatment" covers
all the _particulars_ of such treatment - gives power to exact it in all
_respects - requiring_ certain acts, and _prohibiting_ others - maiming,
branding, chaining together, allowing each but a quart of corn a day,[A]
and but "one shirt and one pair of pantaloons" in six
months[B] - separating families, destroying marriages, floggings for
learning the alphabet and reading the Bible - robbing them of their oath,
of jury trial, and of the right to worship God according to
conscience - the legislature has power to specify each of these
acts - declare that it is not "_humane_ treatment," and PROHIBIT it. - The
legislature may also believe that driving men and women into the field,
and forcing them to work without pay as long as they live, is not
"humane treatment," and being constitutionally bound "to _oblige_"
masters to practise "humane treatment" - they have the _power_ to
_prohibit such_ treatment, and are bound to do it.

[Footnote A: Law of North Carolina, Haywood's Manual, 524-5.]


[Footnote B: Law of Louisiana, Martin's Digest, 610.]

The law of Louisiana makes slaves real estate, prohibiting the holder,
if he be also a _land_ holder, to separate them from the soil.[C] If it
has power to prohibit the sale _without_ the soil, it can prohibit the
sale _with_ it; and if it can prohibit the _sale_ as property, it can
prohibit the _holding_ as property. Similar laws exist in the French,
Spanish, and Portuguese colonies.

[Footnote C: Virginia made slaves real estate by a law passed in 1705.
(_Beverly's Hist. of Va._, p. 98.) I do not find the precise time when
this law was repealed, probably when Virginia became the chief slave
breeder for the cotton-growing and sugar-planting country, and made
young men and women "from fifteen to twenty-five" the main staple
production of the State.]

The law of Louisiana requires the master to give his slaves a certain
amount of food and clothing, (_Martin's Digest_, 610.) If it can oblige
the master to give the slave _one_ thing, it can oblige him to give him
another: if food and clothing, then wages, liberty, his own body. Such
laws exist in most slaveholding governments.

By the slave laws of Connecticut, under which slaves are now held, (for
even Connecticut is still a slave State,) slaves might receive and hold
property, and prosecute suits in their own name as plaintiffs: [This
last was also the law of Virginia in 1795. See Tucker's "Dissertation on
Slavery," p. 73.] There were also laws making marriage contracts legal,
in certain contingencies, and punishing infringements of them,
["_Reeve's Law of Baron and Femme_," p. 310-1.] Each of the laws
enumerated above, does, _in principle_, abolish slavery; and all of them
together abolish it _in fact_. True, not as a _whole_, and at a
_stroke_, nor all in one place; but in its _parts_, by piecemeal, at
divers times and places; thus showing that the abolition of slavery is
within the boundary of _legislation_.

5._The competency of the law-making power to abolish slavery has been
recognized by all the slaveholding States, either directly or by
implication_. Some States recognize it in their _Constitutions_, by
giving the legislature power to emancipate such slaves as may "have
rendered the state some distinguished service," and others by express
prohibitory restrictions. The Constitutions of Mississippi, Arkansas,
and other States, restrict the power of the legislature in this respect.
Why this express prohibition, if the law-making power cannot abolish
slavery? A stately farce, indeed, formally to construct a special
clause, and with appropriate rites induct it into the Constitution, for
the express purpose of restricting a nonentity! - to take from the
lawmaking power what it _never had_, and what _cannot_ pertain to it!
The legislatures of those States have no power to abolish slavery,
simply because their Constitutions have expressly _taken away_ that
power. The people of Arkansas, Mississippi, &c., well knew the
competency of the law-making power to abolish slavery, and hence their
zeal to _restrict_ it. The fact that these and other States have
inhibited their legislatures from the exercise of this power, shows that
the abolition of slavery is acknowledged to be a proper subject of
legislation, when Constitutions impose no restrictions.

The slaveholding States have recognised this power in their _laws_. The
Virginia Legislature passed a law in 1786 to prevent the further
importation of Slaves, of which the following is an extract: "And be it
further enacted that every slave imported into this commonwealth
contrary to the true intent and meaning of this act, shall upon such
importation become _free_." By a law of Virginia, passed Dec. 17, 1792,
a slave brought into the state and kept _there a year_, was _free_. The
Maryland Court of Appeals at the December term 1813 (see case of Stewart
_vs._ Oakes,) decided that a slave owned in Maryland, and sent by his
master into Virginia to work at different periods, making one year in
the whole, became _free_, being _emancipated_ by the law of Virginia
quoted above. North Carolina and Georgia in their acts of cession,
transferring to the United States the territory now constituting the
States of Tennessee, Alabama and Mississippi, made it a condition of the
grant, that the provisions of the ordinance of '87, should be secured to
the inhabitants _with the exception of the sixth article which prohibits
slavery_; thus conceding, both the competency of law to abolish slavery,
and the power of Congress to do it, within its jurisdiction. Besides,
these acts show the prevalent belief at that time, in the slaveholding
States, that the general government had adopted a line of policy aiming
at the exclusion of slavery from the entire territory of the United
States, not included within the original States, and that this policy
would be pursued unless prevented by specific and formal stipulation.

Slaveholding states have asserted this power _in their judicial
decisions._ In numerous cases their highest courts have decided that if
the legal owner of slaves takes them into those States where slavery has
been abolished either by law or by the constitution, such removal
emancipates them, such law or constitution abolishing their slavery.
This principle is asserted in the decision of the Supreme Court of
Louisiana, in the case of Lunsford _vs._ Coquillon, 14 Martin's La.
Reps. 401. Also by the Supreme Court of Virginia, in the case of Hunter
_vs._ Fulcher, 1 Leigh's Reps. 172. The same doctrine was laid down by
Judge Washington, of the United States Supreme Court, in the case of
Butler _vs._ Hopper, Washington's Circuit Court Reps. 508. This
principle was also decided by the Court of Appeals in Kentucky; case of
Rankin _vs._ Lydia, 2 Marshall's Reps. 407; see also, Wilson _vs._
Isbell, 5 Call's Reps. 425, Spotts _vs._ Gillespie, 6 Randolph's Reps.
566. The State _vs._ Lasselle, 1 Blackford's Reps. 60, Marie Louise
_vs._ Mariot, 8 La. Reps. 475. In this case, which was tried in 1836,
the slave had been taken by her master to France and brought back; Judge
Mathews, of the Supreme Court of Louisiana, decided that "residence for
one moment" under the laws of France emancipated her.

6. _Eminent statesmen, themselves slaveholders, have conceded this
power_. Washington, in a letter to Robert Morris, dated April 12, 1786,
says: "There is not a man living, who wishes more sincerely than I do,
to see a plan adopted for the abolition of slavery; but there is only
one proper and effectual mode by which it can be accomplished, and that
is by _legislative_ authority." In a letter to Lafayette, dated May 10,
1786, he says: "It (the abolition of slavery) certainly might, and
assuredly ought to be effected, and that too by _legislative_
authority." In a letter to John Fenton Mercer, dated Sept. 9, 1786, he
says: "It is among my first wishes to see some plan adopted by which
slavery in this country may be abolished by _law_." In a letter to Sir
John Sinclair, he says: "There are in Pennsylvania, _laws_ for the
gradual abolition of slavery, which neither Maryland nor Virginia have
at present, but which nothing is more certain that that they _must
have_, and at a period not remote." Speaking of movements in the
Virginia Legislature in 1777, for the passage of a law emancipating the
slaves, Mr. Jefferson says: "The principles of the amendment were agreed
on, that is to say, the freedom of all born after a certain day; but it
was found that the public mind would not bear the proposition, yet the
day is not far distant, when _it must bear and adopt it_." - Jefferson's
Memoirs, v. 1, p. 35. It is well known that Jefferson, Pendleton, Mason,
Wythe and Lee, while acting as a committee of the Virginia House of
Delegates to revise the State Laws, prepared a plan for the gradual
emancipation of the slaves by law. These men were the great lights of
Virginia. Mason, the author of the Virginia Constitution; Pendleton, the
President of the memorable Virginia Convention in 1787, and President of
the Virginia Court of Appeals; Wythe was the Blackstone of the Virginia
bench, for a quarter of a century Chancellor of the State, the professor
of law in the University of William and Mary, and the preceptor of
Jefferson, Madison, and Chief Justice Marshall. He was author of the
celebrated remonstrance to the English House of Commons on the subject
of the stamp act. As to Jefferson, his _name_ is his biography.

Every slaveholding member of Congress from the States of Maryland,
Virginia, North and South Carolina, and Georgia, voted for the
celebrated ordinance of 1787, which _abolished_ the slavery then
existing in the Northwest Territory. Patrick Henry, in his well known
letter to Robert Pleasants, of Virginia, January 18, 1773, says: "I
believe a time will come when an opportunity will be offered to
_abolish_ this lamentable evil." William Pinkney, of Maryland, advocated
the abolition of slavery by law, in the legislature of that State, in
1789. Luther Martin urged the same measure both in the Federal
Convention, and in his report to the Legislature of Maryland. In 1796,
St. George Tucker, professor of law in the University of William and
Mary, and Judge of the General Court, published an elaborate
dissertation on slavery, addressed to the General Assembly of the State,
and urging upon them the abolition of slavery by _law_.

John Jay, while New-York was yet a slave State, and himself in law a
slaveholder, said in a letter from Spain, in 1786, "An excellent law
might be made out of the Pennsylvania one, for the gradual abolition of
slavery. Were I in your legislature, I would present a bill for the
purpose, drawn up with great care, and I would never cease moving it
till it became a law, or I ceased to be a member."

Daniel D. Tompkins, in a message to the Legislature of New-York, January
8, 1812, said: "To devise the means for the gradual and ultimate
_extermination_ from amongst us of slavery, is work worthy the
representatives of a polished and enlightened nation."

The Virginia Legislature asserted this power in 1832. At the close of a
month's debate, the following proceedings were had. I extract from an
editorial article of the Richmond Whig, of January 26, 1832.

"The report of the Select Committee, adverse to legislation on the
subject of Abolition, was in these words: _Resolved_, as the opinion of
this Committee, that it is INEXPEDIENT FOR THE PRESENT, to make any
legislative enactments for the abolition of Slavery." This Report Mr.
Preston moved to reverse, and thus to declare that it _was_ expedient,
_now_ to make Legislative enactments for the abolition of slavery. This
was meeting the question in its strongest form. It demanded action, and
immediate action. On this proposition the vote was 58 to 73. Many of the
most decided friends of abolition voted against the amendment; because
they thought public opinion not sufficiently prepared for it, and that
it might prejudice the cause to move too rapidly. The vote on Mr.
Witcher's motion to postpone the whole subject indefinitely, indicates
the true state of opinion in the House. - That was the test question, and
was so intended and proclaimed by its mover. That motion was
_negatived_, 71 to 60; showing a majority of 11, who by that vote,
declared their belief that "at the proper time, and in the proper mode,
Virginia ought to commence a system of gradual abolition."

8. _The Congress of the United States have asserted this power_. The
ordinance of '87, declaring that there should be "neither slavery nor
involuntary servitude," in the North Western territory, abolished the
slavery then existing there. The Supreme Court of Mississippi, in its
decision in the case of Harvey _vs._ Decker, Walker's Mi. Reps. 36,
declared that the ordinance emancipated the slaves then held there. In
this decision the question is argued ably and at great length. The
Supreme Court of Louisiana made the same decision in the case of Forsyth
_vs._ Nash, 4 Martin's La. Reps 385. The same doctrine was laid down by
Judge Porter, (late United States Senator from Louisiana,) in his
decision at the March term of the La. Supreme Court, 1830, in the case
of Merry _vs._ Chexnaider, 20 Martin's Reps. 699.

That the ordinance abolished the slavery then existing, is also shown by
the fact, that persons holding slaves in the territory petitioned for
the repeal of the article abolishing slavery, assigning that as a
reason. "The petition of the citizens of Randolph and St. Clair counties
in the Illinois country, stating that they were in possession of slaves,
and praying the repeal of that act (the 6th article of the ordinance of
'87) and the passage of a law legalizing slavery there." [Am. State
papers, Public Lands, v. 1. p. 69,] Congress passed this ordinance
before the United States Constitution was adopted, when it derived all
its authority from the articles of Confederation, which conferred powers
of legislation far more restricted than those conferred on Congress over
the District and Territories by the United States Constitution. Now, we
ask, how does the Constitution _abridge_ the powers which Congress
possessed under the articles of confederation?

The abolition of the slave trade by Congress, in 1808, is another
illustration of the competency of legislative power to abolish slavery.
The African slave trade has become such a mere _technic_, in common
parlance, that the fact of its being _proper slavery_ is overlooked. The
buying and selling, the transportation, and the horrors of the middle
passage, were mere _incidents_ of the slavery in which the victims were
held. Let things be called by their own names. When Congress abolished
the African slave trade, it abolished SLAVERY - supreme slavery - power
frantic with license, trampling a whole hemisphere scathed with its
fires, and running down with blood. True, Congress did not, in the
abolition of the slave trade, abolish _all_ the slavery within its
jurisdiction, but it did abolish all the slavery in _one part_ of its
jurisdiction. What has rifled it of power to abolish slavery in
_another_ part of its jurisdiction, especially in that part where it has
"exclusive legislation in all cases whatsoever?"

9. _The Constitution of the United States recognizes this power by the
most conclusive implication_. In Art. 1, sec. 3, clause 1, it prohibits
the abolition of the slave trade previous to 1808: thus implying the
power of Congress to do it at once, but for the restriction; and its
power to do it _unconditionally_, when that restriction ceased. Again:
In Art. 4, sec. 2, "No person held to service or labor in one state
under the laws thereof, escaping into another, shall in consequence of
any law or regulation therein, be discharged from said service or
labor." This clause was inserted, as all admit, to prevent the runaway
slave from being emancipated by the _laws_ of the free states. If these
laws had _no power_ to emancipate, why this constitutional guard to
prevent it?

The insertion of the clause, was the testimony of the eminent jurists
that framed the Constitution, to the existence of the _power_, and their
public proclamation, that the abolition of slavery was within the
appropriate sphere of legislation. The right of the owner to that which
is rightfully property, is founded on a principle of _universal law_,
and is recognised and protected by all civilized nations; property in
slaves is, by general consent, an _exception_; hence slaveholders
insisted upon the insertion of this clause in the United States
Constitution that they might secure by an _express provision_, that from
which protection is withheld, by the acknowledged principles of
universal law.[A] By demanding this provision, slaveholders consented
that their slaves should not be recognised as property by the United
States Constitution, and hence they found their claim, on the fact of
their being "_persons_, and _held_ to service."

[Footnote A: The fact, that under the articles of Confederation,
slaveholders, whose slaves had escaped into free states, had no legal
power to force them back, - that _now_ they have no power to recover, by
process of law, their slaves who escape to Canada, the South American
States, or to Europe - the case already cited in which the Supreme Court
of Louisiana decided, that residence "_for one moment_," under the laws
of France emancipated an American slave - the case of Fulton, _vs._
Lewis, 3 Har. and John's Reps., 56, where the slave of a St. Domingo
slaveholder, who brought him to Maryland in '93, was pronounced free by
the Maryland Court of Appeals - these, with other facts and cases "too
numerous to mention," are illustrations of the acknowledged truth here
asserted, that by the consent of the civilized world, and on the
principles of universal law, slaves are not "_property_," but
_self-proprietors_, 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.]

But waiving all concessions, whether of constitutions, laws, judicial
decisions, or common consent, I take the position that the power of
Congress to abolish slavery in the District, follows from the fact, that
as the sole legislature there, it 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 constitutional 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
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 Constitution. All its
_fundamental_ provisions are instinct with its spirit; and its
existence, principles and paramount authority, are presupposed and
assumed throughout the whole. The preamble of the Constitution 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 Constitution;" 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
embodiment of "_justice_" and fundamental right was made the groundwork
of the Constitution, 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 Constitution.

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 homogeneous 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 illustrations of
its genius and spirit, while they proclaim and enforce its authority.
Who needs be told that slavery is in antagonism to the principles of the
Declaration, and the spirit of the Constitution, 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 institutions and our national spirit have
claimed it as a common possession, and exulted in it with a common



Online LibraryAmerican Anti-Slavery SocietyThe Anti-Slavery Examiner, Part 1 of 4 → online text (page 46 of 59)