UNCONSTITUTIONALITY OF SLAVERY

CHAPTER XXIV.

POWER OF THE GENERAL GOVERNMENT OVER SLAVERY.

It is a common assertion that the general government has no power over slavery in the States. If by this be meant that the States may reduce to slavery the citizens of the United States within their limits, and the general government cannot liberate them, the doctrine is nullification, and goes to the destruction of the United States government within the limits of each State, whenever such State shall choose to destroy it.

The pith of the doctrine of nullification is this, viz., that a State has a right to interpose between her people and the United States government, deprive them of its benefits, protection, and laws, and annul their allegiance to it.

If a State have this power, she can of course abolish the government of the United States at pleasure, so far as its operation within her own territory is concerned; for the government of the United States is nothing, any further than it operates upon the persons, property, and rights of the people. fn84 If the States can arbitrarily intercept this operation, can interpose between the people and the government and laws of the United States, they can of course abolish that government. And the United States constitution, and the laws made in pursuance thereof, instead of being "the supreme law of the land," "anything in the constitution or laws of any State to the contrary notwithstanding," are dependent entirely upon the will of the State governments for permission to be laws at all. A State law reducing a man to slavery, would, if valid, interpose [*271] between him and the constitution and laws of the United States annul their operation, (so far as he is concerned,) and deprive him of their benefits. It would annul his allegiance to the United States; for a slave can owe no allegiance to a government that either will not, or cannot protect him.

If a State can do this in the case of one man, she can do it in the case of any number of men, and thus completely abolish the general government within her limits.

But perhaps it will be said that a State has no right to reduce to slavery the people generally within her limits, but only to hold in slavery those who were slaves at the adoption of the constitution, and their posterity.

One answer to this argument is, that, at the adoption of the constitution of the United States, there was no legal or constitutional slavery in the States. Not a single State constitution then in existence, recognized, authorized, or sanctioned slavery. All the slaveholding then practised was merely a private crime committed by one person against another, like theft, robbery, or murder. All the statutes which the slaveholders, through their wealth and influence, procured to be passed, were unconstitutional and void, for the want of any constitutional authority in the legislatures to enact them.

But perhaps it will be said, as is often said of them now, that the State governments had all power that was not forbidden to them. But this is only one of those bald and glaring falsehoods, under cover of which, even to this day, corrupt and tyrannical legislators enact, and the servile and corrupt courts, who are made dependent upon them, sustain, a vast mass of unconstitutional legislation, destructive of men's natural rights. Probably half the State legislation under which we live is of this character, and has no other authority than the pretence that the government has all power except what is prohibited to it. The falsehood of the doctrine is apparent the moment it is considered that our governments derive all their authority from the grants of the people. Of necessity, therefore, instead of their having all authority except what is forbidden, they can have none except what is granted.

Everybody admits that this is the true doctrine in regard to the United States government; and it is equally true of the State governments, and for the same reason. The United States constitution, (amendment 10,) does indeed specially provide that the U. S. government shall have no powers except what are delegated [*272] to it. But this amendment was inserted only as a special guard against usurpation. The government would have had no additional powers if this amendment had been omitted. The simple fact that all a government's powers are delegated to it by the people, proves that it can have no powers except what are delegated. And this principle is as true of the State governments, as it is of the national one; although it is one that is almost wholly disregarded in practice. fn85

The State governments in existence in 1789 purported to be established by the people, and are either declared, or must be presumed, to have been established for the maintenance of justice, the preservation of liberty, and the protection of their natural rights. And those governments consequently had no constitutional authority whatever inconsistent with these ends, unless some particular powers of that kind were explicitly granted to them. No power to establish or sustain slavery was granted to any of them. All the slave statutes, therefore, that were in existence in the States, at the adoption of the United States constitution, were unconstitutional and void; and the people who adopted the constitution of the United States must be presumed to have known this fact, and acted upon it, because everybody is presumed to know the law. The constitution of the United States, therefore, can be presumed to have made no exceptions in favor of the slavery then existing in the States. fn86

But suppose, for the sake of the argument, that slavery had been authorized by the State constitutions at the time the United States constitution was adopted, the constitution of the United States would nevertheless have made it illegal; because the United States constitution was made "the supreme law of the land," "anything [*273] in the constitution or laws of any State to the contrary notwithstanding.'' It therefore annulled everything inconsistent with it, then existing in the State constitutions, as well as everything that should ever after be added to them, inconsistent with it. It of course abolished slavery as a legal institution, (supposing slavery to have had any legal existence to he abolished,) if slavery were inconsistent with anything expressed, or legally implied, in the constitution.

Slavery is inconsistent with nearly everything that is either expressed or legally implied in the constitution. All its express provisions are general, making no exception whatever for slavery. All its legal implications are that the constitution and laws of the United States are for the benefit of the whole "people of the United States," and their posterity.

The preamble expressly declares that "We the people of the United States" establish the constitution for the purpose of securing justice, tranquility, defence, welfare, and liberty, to "ourselves and our posterity." This language certainly implies that all "the people" who are parties to the constitution, or join in establishing it, are to have the benefit of it, and of the laws made in pursuance of it. The only question, then, is, who were "the people of the United States?"

We cannot go out of the constitution to find who are the parties to it. And there is nothing in the constitution that can limit this word "people," so as to make it include a part, only, of" the people of the United States." The word, like all others, must be taken in the sense most beneficial for liberty and justice. Besides, if it did not include all the then "people of the United States," we have no legal evidence whatever of a single individual whom it did include. There is no legal evidence whatever in the constitution, by which it can be proved that any one man was one of" the people," which will not also equally prove that the slaves were a part of the people. There is nothing in the constitution that can prove the slaveholders to have been a part of "the people,'' which will not equally prove the slaves to have been also a part of them. And there is as much authority in the constitution for excluding slaveholders from the description, "the people of the United States," as there is for excluding the slaves. The term "the people of the United States" must therefore be held to have included all "the people of the United States," or it can legally be held to have included none. [*274]

But this point has been so fully argued already, that it need not be dwelt upon here? fn87

The United States government, then, being in theory, formed by, and for the benefit of, the whole "people of the United States," the question arises, whether it have the power of securing to "the people" the benefits it intended for theme. Or whether it is dependent on the State governments for permission to confer these benefits on "the people?" This is the whole question. And if it shall prove that the general government has no power of securing to the people its intended benefits, it is, in no legal or reasonable sense, a government.

But how is it to secure its benefits to the people? That is the question.

The first step, and an indispensable step, towards doing it, is to secure to the people their personal liberty. Without personal liberty, none of the other benefits intended by the constitution can be secured to an individual, because, without liberty, no one can prosecute his other rights in the tribunals appointed to secure them to him. If, therefore, the constitution had failed to secure the personal liberty of individuals, all the rest of its provisions might have been defeated at the pleasure of the subordinate governments. But liberty being secured, all the other benefits of the constitution are secured, because the individual can then carry the question of his rights into the courts of the United States, in all cases where the laws or constitution of the United States are involved.

This right of personal liberty, this sine qua non to the enjoyment of all other rights, is secured by the writ of habeas corpus. This writ, as has before been shown, necessarily denies the right of property in man, and therefore liberates all who are restrained of their liberty on that pretence, as it does all others that are restrained on grounds inconsistent with the intended operation of the constitution and laws of the United States.

Next after providing for the "public safety, in cases of rebellion and invasion," the maintenance of courts for dispensing the privileges of this writ is the duty first in order, and first in importance, of all the duties devolved upon the general government; because, next after life, liberty is the right most important in itself; it is also indispensable to the enjoyment of all the other rights which [*275] the general government is established to secure to the people. All the other operations of government, then, are works of mere supererogation until liberty be first secured; they are nothing but a useless provision of good things for those who cannot partake of them.

As the government is bound to dispense its benefits impartially to all, it is bound, first of all, after securing "the public safety, in cases of rebellion and invasion," to secure liberty to all. And the whole power of the government is bound to be exerted for this purpose, to the postponement, if need be, of everything else save "the public safety, in cases of rebellion and invasion." And it is the constitutional duty of the government to establish .as many courts as may be necessary, (no matter how great the number,) and to adopt all other measures necessary and proper, for bringing the means of liberation within the reach of every person who is restrained of his liberty in violation of the principles of the constitution. fn88

We have thus far, (in this chapter,) placed this question upon the ground that those held in slavery are constitutionally a part of "the people of the United States," and parties to the constitution. But, although this ground cannot be shaken, it is not necessary to be maintained, in order to maintain the duty of Congress to provide courts, and all other means necessary, for their liberation.

The constitution, by providing for the writ of habeas corpus, without making any discrimination as to the persons entitled to it, has virtually declared, and thus established it as a constitutional principle, that, in this country, there can be no property in man; for the writ of habeas corpus, as has before been shown fn89 necessarily involves a denial of the right of property in man. By declaring that the privilege of this writ "shall not be suspended, unless when, in cases of rebellion or invasion the public safety may require it," the constitution has imposed upon Congress the duty of providing courts, and if need be, other aids, for the issuing of this writ in behalf of all human beings within the United States, who may be restrained on claim of being property. Congress are [*276] bound by the constitution to aid, if need be, a foreigner, an alien, an enemy even, who may be restrained as property. And if the people of any of the civilized nations were now to be seized as slaves, on their arrival in this country, we can all imagine what an abundance of constitutional power would be found, and put forth, too, for their liberation.

Without this power, the nation could not sustain its position as one of the family of civilized nations; it could not fulfil the law of nations, and would therefore be liable to be outlawed in consequence of the conduct of the States. For example. If the States can make slaves of anybody, they can certainly make slaves of foreigners. And if they can make slaves of foreigners, they can violate the law of nations; because to make slaves of foreigners, is to violate the law of nations. Now the general government is the only government known to other nations; and if the States can make slaves of foreigners, and there were no power in the general government to liberate them, any one of the States could involve the whole nation in the responsibility of having violated the law of nations, and the nation would have no means of relieving itself from that responsibility by liberating the persons enslaved; but would have to meet, and conquer or die in, a war brought upon it by the criminality of the State.

This illustration is sufficient to prove that the power of the general government to liberate men from slavery, by the use of the writ of habeas corpus, is of the amplest character; that it is not confined to the cases of those who are a part of" the people of the United States," and so parties to the constitution; that it is limited only by the territory of the country; and that it exists utterly irrespective of "anything in the constitution or laws of any State."

This power, which is bound to be exerted for the liberation of foreigners, is bound to be exerted also for the liberation of persons born on the soil, even though it could be proved, (which it cannot,) that they are not legally parties to the constitution. The simple fact of their not being parties to the constitution, (if that fact were proved,) would no more alter the power or duty of Congress in relation to securing them the privilege of the writ of habeas corpus, than the same fact does in the case of foreigners, who confessedly are not parties to the constitution; unless, indeed, their coming into the country under the guaranty afforded by the habeas corpus clause of the constitution makes them, so far, parties to it. But [*277] this clause could operate as no guaranty of liberty to foreigners, unless it guarantied liberty to all born on the soil; for, there being no distinction of persons made, it certainly could not be claimed that it guarantied greater privileges to foreigners than to the least favored of those born on the soil. So that it will still result that, unless the constitution, (as it may be executed by the general government alone,) guaranties personal liberty to all born in the country, it does not guaranty it to foreigners coming into the country; and if it do not guaranty it to foreigners coming into the country, any single State, by enslaving foreigners, can involve the whole nation in a death struggle in support of such slavery.

If these opinions are correct, it is the constitutional duty of Congress to establish courts, if need be, in every county and township even, where there are slaves to be liberated; to provide attorneys to bring the cases before the courts; and to keep a standing military force, if need be, to sustain the proceedings.

In addition to the use of the habeas corpus, Congress have power to prohibit the slave trade between the States, which, of itself, would do much towards abolishing slavery in the northern slaveholding States. They have power also to organize, arm, and discipline the slaves as militia, thus enabling them to aid in obtaining and securing their own liberty.

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