Andrew J. (Andrew Jackson) Wilcox.

The powers of the federal government over slavery! online

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Entered according to the Act of Congress, in the year 1862,

By Asdrew J. Wilcox,

tn the Clerk's Office of the District Court fb the District of Maryland.




r a former publication, a Remedy for the Defects of the Gon-
stitution, I endeavored to show what power the Government had
over the subject of slavery, as granted to it by the people, in the
particular clauses of the Constitution, bearing on that subject.

Since then, the President has issued his proclamation; the
first four and last paragraphs of which is in the words followiag:

'*1, Abraham Lincoln, President of the United States of
America, and Commander-in-Chief of the Army and Navy there-
of, do hereby proclaim, that hereafter, as heretofore, the war will
be prosecuted for the object of practically restoring the Consti-
tutional relations between us and the people thereof, in which
States that relation is or may be suspended or disturbed."

"That it is my purpose, upon the next meeting of Congress,
to again recommend the adoption of a practical measure, tender-
ing pecuniary aid to the free acceptance or rejection of all the
Slave States, so called, the people whereof may not be in re-
bellion against the United States, and which States may then
be in rebellion against the United States, and which States may
then have voluntarily adopted, or thereafter may voluntarily-
adopt, immediate or gradual abolishment of slavery within
their respective Citifes, and that the efforts to colonize persons
of African descent, with their consent, upon this Continent or
elswhere, with th^ pr^VioMy obffiined consent of the Govern-
ments existing then will be continued."

^^That on the first day of Jaivaary in the year of our tord one
thousand eight huTidred and sixty-three, all persons held as slaves
within any State or designated part of a State, the people lohei^of
shall then he in rebellion against the United States, shall be thence-
forward and forever free; and that the Fccecutive Government of
the United States, including the military and naval authority
thereof, will recogonize and maintain the freedom of such persons.
and will do no act or acts to repress mich persons, or any of them,
in any efforts that they may make for their actual freedom."

Thai the Executive will, on the 1st day of January aforesaid,
by proclamation, designate the States and parts of States, if any,
in which the people thereof respectively shall then be in rebellion
against the United Slates; and the fact that any State or people
thereof shall, on that day, be in good faith represented in the
Congress of the United States, by members chosen thereto at
elections wherein a majority of the qualified voters of such
States shall have participated, shall, in the absence of strong
counteracting testimony, be deemed conclusive evidence that
such State, and the people thereof, are not in rebellion against
the United States; that attention is hereby called to an act of
Congress, entitled "An Act to make an additional Article of
War/' approved March 13th, 1862, &c.

Then follows a paragraph containing the Article of War pro-
viding for the non-return of fugitive slaves, those sections of the
Confiscation Act which hold out inducements for negroes to be-
come fugitives from their masters, and another, saying that the
"Executive will, in due time, recommend that all citizens of
the United States, svho shall have remained loyal thereto
throughout the rebellion, shall, upon the restoration of the
constitutional authority between the United States and their re-
spective States and people — if the relations shall have been sus-
pended or disturbed, be compensated for all losses by acts of the
United States, including the loss of slaves."

I shall take it for granted, that our Constitution was made for
all contingencies, at least for a contingency like the present. In
the preamble it is said, that the Constitution was "ordained and
established to form a more perfect Union, establish Justice, insure

domestic tranquility, provide for the common defence, "promote the

general welfare," &c.

This language is either false, or the idea that the Constitution
was not intended to meet a case like the present, and that the
lex necessitate must govern is false.

Although the President does not say by virtue of what au-
thority he issues this proclamation, and although ho does not
even say that it was* done by virtue of any authority, yet, I
presume, it was intended to have been issued constitutionally,
and under the 1st clause of the 8th section of the 1st article, in
these words; "To lay and collect taxes, duties, imposts and ex-
cises; to pay the debts and provide for the common defence and
general welfare of the United States; but all duties, imposts and
excises shall be uniform throifghout the United States."

This power was granted by the people to the Congress, and
not the President of the United States. The precise words used
are "that the Congress shall have power to lay and collect taxes,''
&c. The first question that would arise is: Can Congress dele-
gate powers granted \o it by the people to auothe)- branch of the
government? On this question I do not think there can possibly
be any difference of opinion, but will suppose that it could, then
then the question would arise: Has it done so? This must bo
answered in the negative. But I will 'again make the supposi-
tion, that Congress will legalize the acts of the President, then
the question would arise: Has Congress the power, under this,
clause, to emancipate slaves?

On this point, Patrick Henry, in the Virginia Convention,
said that "With respect to that part of the proposal, whicli says
that every power not granted remains with the people, it must
be ^rei;iOMs to adoption or it will invoh'e this country in inev-
itable destruction. To talk of it as a thing subsequent; not as
one of your inalienable rights; is leaving it to the casual opinion
of the Congress who shall take up the consideralion of that
matter. They will not reason with you about the effect of this
Constitution. They will not take the opinion of this coramitiee
concerning its operation. They will construe it as as they
please. If you place it subsequently, let me ask the conse-


qnences. Among ten thousand implied powers wtiicfi fhe^ fii&y
assume, they may, if we be engaged in war, liberate every one
of your slaves if they please, and this must and will he done by
men, a majority of whom have not a common interest with you."

"They will therefore have no feeling for your interests. It has
been repeatedly said here, that the great object of national Gov-
ernment was national defence. That poiver lohich is intended
for security and safety, may be rendered detestable and, oppres-
sive. If they give powers to the General Goveroment to provide
for the general defence, the means must be commensurate to the
end. All the means in the possession of the people must be
given to the Government, which is entrusted with the public
defence. In this State there are 236,000 blacks and there are
many in several other States. But there are few or none in the
Northern States, and yet if the Northern States shall be of
opinion that our number are numberless.. They may call forth
every national resource,"

^'•May Congress not say that every black man must fight. Did we
see a little of this last war? we were not so hard pushed as to
make emancipation general. But acts of assembly passed that
every slave who would go to the army should be free, another
thing will contribute to bring this event about. Slavery is de-
tested. We feel its fatal effects. We deplore it with all the
pity of humanity. Let all these considerations at some future
period press with full force on the minds of Congress. Let that
urbanity, which I trust will distinguish America, and the ne-
cessity of national defence; let all these things operate on their
minds they loill search that paper and see if they havej)oioer of
manumission. And have they not Sir? have they not power to
])rovide for the ^'eneral defence and welfare? May they not ihinh
that these call for the abolition of slavery? May they not pronounce,
all slaves free, and will they not be warranted by that power.^
There is no ambigous implication or logical deduction. The
paper speaks to' the point. They have the power in clear un-
equivocal terms and will clearly and certainly exercise it. As much
as I deplore slavery, I see thai prudence forbids its abolition. I
deny that the general Government ought to set them free, be-


cause a decided majority of the States have not the ties of

sympathy and fellow feeling for those whose interests would be
affected by. their emancipation. The majority of Congress is
to the north, and the slaves are to the south."

"In this situation, I see a great deal of the property of the
people of Virginia in jeopardy, and their peace and tranquility
gone. I repeat it again that it, would rejoice my very soul thai
every one of my fellow beings was emancipated. As we ought with
gratitude to admire that decree of heaven, which has remembered
us among the free, we ought to lament and deplore the necessity
of holding our fellow men in bondage. But is it practicable by
any human means to liberate them without producing the most
dreadful and ruinous consequences? We ought to possess them
in the manner we inherited them from our ancestors, as their
manumission is incompatable with the felicity of our Country. But
we ought to soften, as much as possible the rigor of their un-
happy fate. I know that in a variety of particular instances,
the legislature, listening to complaints, have admitted their
emancipation. Let me not dwell on this subject. I will (jniy
add that this as well as every other property of the people of
Viginia, is in jeopardy and put in the hands of those who have
no similarity of situation with us. This is a local matter and I
can see no propriety in subjecting it to Congress,"

"With respect to subsequent amendments proposed by the wor-
thy member I am distressed when I hear the expression. It is
a new one altogether, and such a one as stands against every
idea of fortitude and manliness in the States, or any one else.
Evils admitted in order to be removed subsequeatly, and tyran-
ny submitted to in order to be excluded by subsequent alteration
are things totally new to me."

Elliot's Debates on Fed. Constitution, page 533.

It will be remembered, that Patrick Henry was one of the most
violent of the opponents of the Constitution ; and on this occa-
sion, being his last speech before the question was put to the
House, used ail the rhetorical and logical powers of which he
was capable, in making the strongest possible case against the
Constitution, so that he may be considered as a prejudiced wit-


The principal question in all the conventions was on the divi-
sion of powers, between the State and Federal government.
Thp friends of the Constitution claiming, as we shall hereafter
sec, that (even without the amendments which have since been
made, particularly the 9th and 10th here referred to) the gov-
ernment was one of limited powers; that only such powers
as were enumerated were intended to be granted, and that these
powers could not be enlarged upon. Whilst the opponents of
the Constitution, among the most formidable of whom was Pat-
rick Henry, denied this position, and said, that the Constitu-
tion, especially this and the 18th clause of this section and ar-
ticle, granted to the government unlimited powers, and would
effect a consolidation of the States. Patrick Henry, in this speech
says, that i£ that part of the system, ''which says that every
power not granted remains with the people," would be inserted,
previous to the adoption of the Constitution, it would then be
satisft'ctory even to those who agreed with him, and that the
general government would not be able to assume any implied
powers, which they would do, (even if the Constitution did
not warrant the assumption) as it then was, and Congress could
not then imply any power, under the power of providing for
the general defence in time of war, to emancipate slaves. It
was not the ti7ne luhen the amendments should be made, that
would prevent, the general government from using this unlim-
ited puwer, but it was the amendments themselves. Although
this vgry amendment had been proposed by nearly all the con-
ventions of which we have the proceedings, and which sat
prior to Virginia, yet it was repeatedly said, in the Convention
of that State, that these amendments never would be made.
Another point here made was that although Patrick Henry de-
plored slavery, and that it would rejoice his very soul to see all
slaves emancipated, yet he thought it was not practicable by any
human means to liberate them without producing the most dread-
ful and ruinous consequences, would be altogether incompatable
with felfcity of the country, and being a local matter, in subject-
ing it to Congress under the Constitution, as it then was, would
bo submitting to tyranny in order to afterwards exclude it by
subsequent aitcratiou.


Gov. Edmund Randolph, also a member of the Virginia Con-
vention, in reply to Patrick Henry said, that. ''That honor-
able gentlemen and some others have insisted that the abolition
of slavery will result from it, and at the same tinie have com-
plained that it encourages its continuation.

The inconsistency proves, in some degree, the futility of their
arguments. But if it be not conclusive, to satisfy the committee,
that there is no danger of enfranchisement taking place, I beg
leave to refer them to the paper itself. I hope that there is none
here who, considering the subject in the calm light of phil-
osophy, will advance an objection dishonorable to Virginia; that
at the moment they are securing the rights of their citizens, an
objection is started that there is a spark of hope that those
unfortunate men, now held in bondage, may, by the operation
of the General Government, be raade/ree. But if any gentleman
be terrified by this agprehension let him read, the system.. I ask and
I loill ask again and again till I be ansivered, {not by declamation)
where is the part that has a tendency to the abolition of slavery?
Is it the clause which says that 'Hhe migration or importation
of such persons as any of the States now existing shall think
proper to admit, shall not be prohibited by Congress prior to
the year 1808. ' ' This is an exception from the power of reg-
ulating commerce, and the restriction is only to continue till
1808. Then Congress can, by the exercise of that power, pre-
vent future importations; but does it affeet the existing state of
slavery? Were it right here to mention what passed in convention
on the occasion, I might tell you that the Southern States, even
South Carolina herself, conceived this property to be secure by
these loords. I believe whatever we may think here that there was
not a member of the Virginia delegation loho had the smallest sus-
picion of the abolition of slavery. Go to their meaning. Point
out the clau^se lohere this formidable power of emancipation is

"But another clause of the Constitution proves the absurdity
of the supposition. The words of the clause are, "no person
held to service or labor in one State, under the laws thereof, es-
caping into another, shall in conse(juence of any law or regula-


tion 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." Every one knows that slaves are held to ser-
vice and labor. And when authority is given to owners of slaves
to vindicate their property, can it be supposed they can be de-
prived of it? If a citizen of this State, in consequence of this
clause, can take his runaway slave in Maryland can it be serious-
ly thou'ght that after taking him and bringing him home he
could be made free?"

"I observed that the honorable gentleman's proposition came
in a truly questionable shape, and is still more extraordinary and
unaccountable for another consideration. That although we
went article by article through the Constitution, and although Ave
did not expect a genera^ review on the subject, (as a most compre-
hensive view had been taken of it before it was regularly debated,)
yet we are carried back to the clause giving that dreadful(? jpower
for the general welfare. Pardon me if I remind you of the true state
of that business. I appeal to the candor of the honorable gentle-
men, and if he thinks it an improper appeal, I ask the gentleman
here whether there be a general indefinite power of providing for
the general welfare? The power is to lay and collect taxes, du-
ties, imposts and excises; to pay the debts and provide for the
common defence and general welfare. "So that they can only
raise money by these means in oi'der to provide for the common
defence and general welfare. No man who reads it, can say it
is general, as the honorable gentleman represents it. You must
violate every rule of construction and common sense if you sever it
from the potoer of raising money and annex it to any thing else in
order to make it that formidable power which it is represented to
6«." — (Ibid, 3rd vol., page 541.)

Gov. Randolph was not only a member of the Federal Con-
vention, in which the Constitution was adopted, but it was
on the basis of his resolutions principally framed. If it can be
supposed that any one understood what it was intended that the
Constitution should mean, it certainly was he. He does un-
equivocally say, in this speech, that not only he, but every mem-
ber in the Convention from the Southern States, fully under-

stood what the intention of those were who framed the Constitu-
tion, in regard to the subject of slavery. His words are that
"were it right here to tell what passed in Convention. (Federal)
on the occasion, / might tell you that the Southern States, even
South Carolina herself, conceived this property to be secure by these
loords.'' Again. "I believe, whatever we may think hert, that
there was not a member of the Virginia delegation who had the
smallest suspicion of the abolition of slavery." The italics here are
his own. This seems to favor the idea that this clause in respect
to the "migration or importation of such persons as any of the
states then existing should think proper," was regarded as a
sacred compromise, on which the slavery question should
forever rest. But irrespective of all compromises and private
understandings, he goes to the law as laid down in the Consti-
tuti n, and asks Patrick Henry and his friends to "point out the
clause where this formidable power of emancipation is inserted."
"Where is the part that has a tendency to the abolition of sla-
very? He does not wish to be answered by declamation either.
A conclusive ansioer that no such power resides in the govern-
ment, was the clause before quoted in respect to the migration
or importation of slaves. But if that is not sufficient to prove
the absurdity of the supposition, he quotes the clause, "that no
person held to service or laboi* in one State, under the laws there-
of, 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 ser-
vice may be due." For fear that it may be misinterpreted, as
is now frequently done, he declares that every one knows that
the terms held to service or labor was intended to mean slaves.
Again, least his silence on the clause which provides for the
general welfare should be taken as an admission of Patrick
Henry's declaration, whom he accuses of endeavoring to get a
snap judgment against him, he states what the convention under-
stood was the meaning of the clause. He says, "pardon me if
I remind yon of the true state of that business. I appeal to the
candor of the honora'ulc; gentleman, and if he thinks it an im-
proper appeal, I ask the gentleman here, whether there be a
general indefinite power of providing tor the general welfare?"


The power is, ''to lay and collect taxes, duties, imposts and
excises to pay the debts and provide for the common defence and
general welfare." Why should the provision to provide for
the common defence and general welfare be connected with that
to raise taxes, &cf The opponents to the Constitution on all
occasions declared that if this Constitution was adopted that all
debts of the United States, both foreign and domestic, which
had accumulated under the articles of confederation, would be
repudiated, wiiich would bring on another foreign war. This
clause gives the power to raise the money to pay the debts,
which, if not satisfactory to foreign nations and they will war
with us, we will provide for the general welfare by applying
this money for self defence. "So that they can only raise money
by these means. ' ' To sever it (the power to provide for the com-
mon defonce and general welfare) from the power of raising
money, and annex it to anything else, especially to the power to
abolish slaveiy. in order that, the war power would become
the more, formidable, as Patrick Henry represented, it would
be, "evei-y rule of construction and common sense must be
violated." Ex-President Madison, also a member of both
Federal and State conventions, on the same occasion, used the
following words, in reply to Patrick Henry, he said: "I was
struck with surprise when I heard him express himself alarmed
with respect to the emancipation of slaves. Let me ask if they
should even attempt it, if it will not be anursupation of power?
There is no power to warrant it in that paper. If there be 1
know it not. But why should it be done? says the honorable
gentleman for the general welfare, it will infuse strength in our
system, (^an any member of this committee suppose that it will
increase our strength? Can any one believe that the American
councils will come into a measure which will strip them of there
property, discourage and alienate the afiections of five thir-
teenths of the Union. Why was nothing of this sort arrived at
before, I believe such an idea never entered into any American
breasts, nor do I believe it ever will enter into the heads of those
gentlemen who substitute unsupported suspicions for reasons."
Ibid page 561 .

President Madison was of the opinion that even an attempt
to emancipate slaves, under the war power, would be an usur-
pation of power on the part of the (rovernment. His
opinion is also valuable in respect to the allegation that
emancipation will infuse strength into our system. The idea
is so nonsensical, as to cause him to put the interrogative,
"Can any member of tliis committee suppose that it will increase
our strength.^ The same question might now be asked and could
be practically more answered, that instead of its being a means
of strength to the Government, in the present contest, it has sure-
ly been a means of weakness. It has divided the loya,l and united
the disloyal. It has thrown upon the Gover anient, for support,
many thousands of contrabands who, it is said, do not earn
even their support under masters.

On anotlier occasion, when the Cod fishery bill was before the
House of Represenatives, in the session of 1790, Jas. Madison,
on this particular clause and the general theory of our Consti-
tution said: "I, sir, have always conceived, I believe, those
who proposed the Constitution conceived, it is- still more fully
known and more material to observe, that those who ratified
the Constitution conceived, that this is not an indefinite gov-
ernment, deriving its powers from the general terms ])refixed
to the specified powers; but a limited government, tied down to
the specified powers which explain and define the general terras.

It is to be recollected, that the terms "common defence and
general welfare," as here used, are not novel terms, first intro-
duced into this Constitution. They are terras familiar in tlieir
construction and well known to the people of America. Tliey
are repeatedly found in the old Articles of Confederation, where,
although they are susceptible of as great a latitude as can
be given them by the context here, it was never supposed or


Online LibraryAndrew J. (Andrew Jackson) WilcoxThe powers of the federal government over slavery! → online text (page 1 of 2)