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" three-fifths” prevailed, was not such as is now generally
upon the naked question, whether men were to be acknowledged as property, although taxed as such in the condition of slaves, it would not have been possible to have obtained a major vote in the Convention of 1787. And it is an utterly false averment, as we contend, that the constitution was understood by the framers of it, to be a recognition of slavery, as a system or institution. If the Southern States, instead of being the richest, had been the poorest, we are fully warranted to say, that the world would never have heard of the enumeration of “three-fifths; " and no such indelible stain would have ever marred the national glory of the charter of our Federal Union.
And now, as in the result the Government of the Union has been sustained without such taxation as was acknowledged to be the ground of the rule of representation, with what propriety do statesmen and others of the South so determinedly maintain the well-known doctrine of Southern rights ? But we cannot pursue this and some other inquiries, which, however, are of great practical interest, in the present relations of the free and the slave-holding States.
That by the majority of the Convention which framed the
* Madison Papers, p. 1428. | Do. p. 1427.
constitution of the United States, slavery was deemed a temporary institution, is evident from the tone of much of the discussion had at the time, both within and without that body; and might be inferred from the single circumstance, that the express mention of it, by name, is so carefully avoided in that instrument, that the words which refer to it would be unintelligible, if the fact or the existence of slavery did not interpret them.
The animus of the framers of the constitution might also be inferred from the fact, that its adoption was immediately followed by the establishment of societies for the abolition of slavery in Virginia, Maryland, and North Carolina, in which societies many of those very statesmen, who had been members of the Convention, including Washington and Jefferson, were actively engaged. Up to the date of the constitution, the black population had failed to reproduce its own number, under the law of natural increase. It was supposed, therefore, as has been already suggested in this Report, that on the cessation of the slave-trade, the gradual extinction of the colored race within our borders would begin, and slavery would cease. This would have been the result, perhaps, had not the purchase of Louisiana and the extension of slave-territory opened a home market and acted as a bounty or premium on production.
As such were the views and expectations of the framers of the constitution, it is not surprising that all which that instrument can be interpreted or made to contain, is the reluctant and half-latent acknowledgment of the existence of slavery, with provision for the civil estimate in respect to representation, and the treatment in respect to fugitives, of those who then happened to be included under it, without indicating any purpose or possibility of its extension, but implying the contrary; and without making any provision, or conferring any power, by which it could be lawfully extended, or by which the rights (now so called) which it confers, could be legitimated in any State where it did not then exist, or upon any territory that might thereafter be added to the Union. This, as we believe, it can be demonstrated, is the extent of the connection between the Constitution of the United States and Slavery. And in what we have now to say, in commenting more particularly upon the language of the constitution, we must omit many historical and other citations, which a full view of this part of the subject would very urgently require us to introduce.
That slavery described by the periphrasis of "persons held to service,” is recognized by the constitution, as existing in some of the States of the Union, will of course not be denied; and it must be admitted also, that so far as it is recognized by that instrument, and until it shall in some legal manner be abol
ished, it is the duty of the judiciary to sustain the provisions of the constitution in respect to it. In interpreting these provisions, we should always bear in mind the circumstances under which they were adopted. Most important also it is, that we bear in mind the principle, that slavery, from its very nature and character, is a wrong in itself, having no foundation in natural or moral right; and whoever avers that it has a legal existence within any particular territory or jurisdiction, must prove that it exists by clear and distinct provision of law. This principle is recognized by eminent English jurists, who, when they have had occasion to speak of slavery, uniformly say,-
--" It is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only provisions of law; and it is so odious, that nothing can be suffered to support it, but positive law."
American jurists have recognized the same principle. In pronouncing a judgment of the supreme court, chief justice Marshall, speaking of the slave trade, uses this language"That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor is generally admitted, and that no other person can rightfully deprive him of those fruits and appropriate them against his will, seems to be the necessary result of the admission.” These views and principles have received the sanction of the supreme court of Massachusetts, and will be sustained by every intelligent legal tribunal; and on this ground it may be maintained, that no intendment in favor of slavery can be made out from the constitution, except such as is the necessary result of express provision. In reference to right, justice, and equity,
. the construction applied to any instrument or law, is liberal and favorable, so as thereby, if practicable, to uphold the right. When any instrument or law is designed to uphold or accomplish a purpose not in conformity with natural right, the construction adopted is strict and rigid, so as thereby to limit and restrain the evil which might otherwise exist. Applying this just principle of construction to the constitution of the United States, in its relations to slavery, we say that it was no part of the intention of that instrument to create or establish the institution of slavery, or to enlarge its territory, or to give to Congress any power or right to establish it, or to recognize or permit its existence in any State or Territory of the Union, where it did not exist at the time the constitution was framed and adopted. At that time the institution had a legal existence within certain States; this limited existence, as a matter of compromise, was permitted to continue. Without and beyond these States, slavery has and can have no legal existence under the constitution. The provisions of that instrument and its
whole spirit and principles are prohibitory as regards slavery over all other soil that has since, is now, or may become, a portion of the Union. For that instrument, as is asserted in its first clause, was formed, among other things, to establish justice and secure the blessings of liberty to its framers and their posterity. Slavery most certainly is not essential to justice or the blessings of liberty. It is in direct conflict and opposition to these purposes. This being the spirit and purpose of the constitution, no intendment in support of slavery can be drawn from it, but such as is upheld by the most strict and rigid interpretation of the express provisions by which it is to a certain extent recognized. These provisions are but two in number. The first, and in some respects the most important one, is in these words, " The 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 one thousand eight hundred and eight." This provision is an express limitation of
. the right to import and consequently to hold slaves, in language which admits of only one construction. This right was thereby restrained to the States then existing, and of these States it was to be exercised only by those in which at that time, slavery had a legal existence. No broader construction can be put upon this provision. "The second provision is thus expressed. "No person held to service or labor in one State, under the laws thereof, escaping into another, shall be discharged of such service, but shall be delivered up to the party to whom such service is due."
This second provision was not designed to extend or enlarge the first—but only to uphold it in the limited manner, in which it was intended to be interpreted, and goes to prove that that limited interpretation is correct. By the universal principles of law, as known to communities in which slavery has no existence-whenever a slave puts his foot upon the territory of such community, he becomes free. The second provision was adopted to obviate the effect of this principle ; because without it a slave escaping from a slave-holding State into a non-slaveholding one, would be regarded as free, notwithstanding the right secured to his owner under the first provision ; and the fact that it was deemed necessary to insert this second provision, shows that the first was understood and was to be interpreted in the limited manner already noticed.
An opinion different from the position stated above, is held by some, who, however they may express themselves, rely for support to their opinion upon that provision of the constitution, which says that, "citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." But this provision was clearly not intended to enlarge the right
of slavery, as recognized to a limited extent in the two provisions upon that subject already referred to. To infer from it a right in a citizen of a slave-holding State to become a citizen of a non-slave-holding State, carrying his slaves with him and exercising over them therein the rights and power which he had been accustomed to exercise in the State from which he removed, is a supposition so monstrously absurd, that it could never be for a moment entertained, save by one in whom the strong influence of passion and self-interest had blinded the judgment. Let the principle involved in this inference be carried out and applied to all other matters as well as to slavery, and every law of every State may be in turn modified or subverted by it, and inextricable confusion introduced into the administration of justice-or what would then be the administration of injustice.
The law of Massachusetts punishes murder with death. The law of Michigan spares life, but condemns to perpetual imprisonment for the same crime. To infer that because the constitution says,
"citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States,” therefore a citizen of Michigan can come to Massachusetts, either on a visit or for permanent residence, and committing murder, may claim to be exempt from the death penalty, and subject only to imprisonment for life, on the ground that this was his privilege and immunity under the laws in the State of Michigan, would not be more absurd than to infer from the same provision of the constitution that a citizen of Carolina may come to reside in Massachusetts and claim to exercise and enjoy in the latter the privileges and immunities which were guarantied to him as a citizen slave-holder in the former State. Both inferences, and all such inferences, are unwarrantable and absurd.
The clause of the constitution under consideration, was simply intended to prevent the several States from prohibiting the free ingress and egress of citizens of one State into and from another. Under it any citizen of the United States has a right to pass from Maine to Texas, and from Massachusetts to Oregon or California, unmolested and unquestioned, and to fix his residence in any State that he chooses; but in passing from one to another State, he does not carry with him the laws of the State from which he passes, but becomes subject immediately to the law of the State within which he may chance to be.
Those who uphold slavery, have never urged or pretended that a citizen of a State in which slavery existed at the time of the adoption of the constitution, could carry and hold his slaves as such, into a State in which at that time slavery had no legal