An argument on the unconstitutionality of slavery : embracing an abstract of the proceedings of the national and state conventions on this subject.

Preface

In presenting the public with the present volume, we are aware it involves some presumption, as we are not connected with the learned profession of the law j but none, either abler or otherwise, having undertaken the task, we have ventured to raise our sail, and, with what skill and favorable winds we could command, have endeavored to steer our bark into the desired haven. We are aware that Mr. Alvan Stewart, of New York, with his great mind, has preceded us in the discussion of the constitutional question of the rights of slaveholders; ,but he did not touch the poiqt which we thought lay at the foundation of this most interesting question; we have therefore considered it in a somewhat different aspect. While h« supposed, becaube the States, had not hy their laws established slavery, therefore it did not exist, we, ' on, the contrary, would affirm, that, according to

our ConstitutioD^it is impossible either for congress 1* or the States to establish it ; that no man now is rightfully or legally held in hondage in this, country j tha*^ th3 whole system is unconstitutional ; and that it is in violation of its spirit and letter, and ought not to he upheld.

But, knowing such weighty authorities are at present opposed to us, we have had to be rather labored, and to extend our remarks and proofs to a greater length than might be desirable ; but, as we have endeavored to give a connected history of the projeefling.s of various public bodies in relation to the question at issue, and have done it with all the impartiality of which we are capable, we Lope our exertions will not prove unavailiag to throw light upon a subject which now seems to be involved in much darkness and uncertainty, -if we can judge from the contrariety of opiniomts we have heard both publicly and privately expi^s^d. We' are aware, aiso, we take a diffexent stand from many distinguished abolitionists on t\m question, and that a good deal of sensitiveness has been manifested towards us on account of it ^ but, as the facts and arguments adduced in this wock have fully satisfied eurself on s&bjeet, it is hoped they may not fail coovi^ee others, and ^at it vili be fiAaliy admitted that dsu^ only the Stiitfis, but the Umted States, and ^ various

PBEk ACE.

courts of the land, all have authority over the snhject, when the question arises in their several jurisdictions. We have considered the distinctive character of our government arises from the fact a man cannot be siibjected to arbitrary authority in this country • and from (his alone it deserves the appellation " free." We take, it for granted, it cannot be supposed that individuals under a government have a greater authority over other individuals under the same government than the government itself.

But, while we have, as we think, most clearly demonstrated these as truths, and that every individual person is by the Constitution allowed his inalienable rights, and tlie free exercise of them, we should also hold, even if the Southern States were foreign nations, and we had no connection or , interest with them, it would be our duty, the duty of every other ma», to lift op his voioe against the oppression that is there exercised, on. the same grounds ihat we (should enter a stranger's house from which proceeded t)ie cry of beip and murder. Is there one of us, in the Northem States, who ^uM see one maa beating a&- otber ia the street, wcmid not endeavor to know 1^ imm of the asaault, and, if in our powe.> iM«tveat its ^Qtioxiamje ; or^ if we ^onld Sv> one

PXIEFACK.

flying from an infuriated man, should we not endeavor to render succor and assistance to him who - is fleeing ? And when we see and know that thousands and tens of thousands of our colored brethren have alreadyv fled, and are continually fleeing, for succor and for aid to shield them from the iron yoke imposed upon them in the Southern States of this Union, and when we know their cry is constantly ascending for assistance, can we, ought we, to fold our arms in indifference ? Let him who has never wanted, and never expects to want, the sympathies and aid of his fellow-men ansv;er in the af&rmative, and act accordingly. Knowing, however, our own weakness and our own wants, we must act in a diflTerent manner.

But we aflSrm, according to our present arrange- - ment, the Southern States can in no light be considered as foreign nations to us: our destiny is bound up with theirs, and we cannot hope to escape unless we dissolve our present connection. Are we liable every moment to be called' upon to shoulder our muskets, to defend, the South from any danger. that may arise either from external foes, or internal msuirections, without having any interest to prevent, if possible, our being thus called upon Has. a f-^^^ign n^ition the same right to call upon us for such a purpose f We cannot

PBBFACE.

suppose any one will answer in the affirmative ; neither could we have believed, had it not been done by so many individuals, that a single person could have been found, that would have admitted it possible any one could, in this cotintry, be driven about hither and thither, whether as soldiers or as slaves, without being able to ask the reason why, or without having the right, in any way or in any manner, of preventing suc4i being the c£^e. We thi&k our fathers have rfot left us such a legacy; on the contrary, they not only took better care of their own rights, ba* took betted car© of the rights of their posterity ; and it is the purpose of the following pages t6 show htew and in x^hat manner they have d<me it.

If w^' are successful in convincing thiE oation, or rendering afliy help to convince it, that there is and can be no legal slavery in this country under our present Constitution, as we ourself are conviaced there can be none, we shall thank God and take courage. We therefore humbly dedicate this book to the people of the United States; and, although it has been written in hours snatch* ed from business and relaxation, and its literary merits may be objectionable, we hope the ideas will be pondered and considered, and that we shall not rush blindfolded into slavery to our own

PREFACE.

destrucUon, and to the destruction of the hopes of the great and good who have desired the liberty and happi»iess of mankind.

We woiildr however obseive, that in any thing we may say in the following pages, we hope no one wiil^ suppose that we would not be as careful of State rights as the most jealous psrspn, whether in or out of the abolition ranks ; but we have no sympRihy with those who are so sensitive with regard to them on some points, and yet pay no sort of regard to them when certain other points are tinder consiaoration.

We will take this opportunity. to thank Mr. Coffin, and Mr. Snellihg, of the State Library, for their politene:^ in allowing us the examination of such books under their charge as we v/ished.

CONTENTS,

CHAPTEE I.

A general Statemeat of the duestion, . - - - ^ - - - 13

OHA?TEK II.

Qbsenrations made by those engaged in the Revolutioaary War, 36

OHAPTBE III.

The Argtunent derived from the Declaration of Independence, the Confederation, and the Constitttiion, • - . - - 61

CHAPTER IV.

Ctaotations showing the Cheuracter of the People ivbo came to settle the Country, -90

CHAPTE& V.

The Proceedings of the National Convention, ----- 104

CHAPTEE VI.

filaotatiais from the Federalist, - - - 124

CHAPTEE VII.

Extracts from, the Proceedings in (he Convention of Uie State of Masachasetts, - --151

CHAPTER VIII.

Extracts from the Debates in the Convention of the Siate of New Vorkj - - - 1=73

Contents

CHAPTER IX.

Extracts from the Pro»;cedings in the Convention of the State of Virginia, on the adoption of the Federal Cousti-

CHAPTER X.

Appendix

Halations passed at the Green Dragon, ---..--437 DecisitHi of the Conrt of Error and Appeal in Pennsylvank^ 439

THK

T J N C O N S T I T U T U) N A 1. 1 T Y

OP

SLAVEEY.

; CHAPTEF, 1.

, 'J'^"-"'. A GENERAL STATKaiENT OF THE •.ITj^^^TiW-

The idea having Deeii advaTic«d in some oi our most prominent political and religious iounial'i, ai?.d also ill various addresses made to ibf;' pablic by members beioisging to both political jiarties/ that no person out of the slnve f^tates had any tbir-g to do witii Slavery ;^ that, its abolition belongs v.)le^y to the State;^ in which it Gxisto; that 7/?c htive nothing morn to do with it than if these States were foreign cations, and that we vioiatc the law of nations by meddlinf with it; ^ and that, if these States were not of our own household, the proceedings of the abolitionists would bo a cause of war : and, further, (the doctrine is sdvmced hj anteed to t-he South, '— it is our purpose to con-

a Boston auar'.trly Review, No. It p. S42 ; also No. XIII. p. 95*

* Boslou duarterly Review, No. n. p. 258.

4 Chrjstijsp. Eraifi'iner, Third Series, No, XIH. 1837, p. 84, *c.

14 STATEMENT OF THE (BUESTION.

Sider these several subjects, aod see how far they can be true, and if in truth it be possible we can arrive to any such alarming conclusions. While, we say, we will niake the above inquiries, we will also see whether, on the contrary, while this system was found, like other evil practices that aotnetimes gain a foothold on the affections of a people, our fathers did not do as much as they thought in their power to put an end to the system, and leave it not only in the power of the government to dsstroy it, but absolutely, and in fact, by the system they adopted, they did not place it in the power of every individual, who should be maltreated or restrained in his liberty, ta get redress of his grievances through the instrumentality of the courts; so that, if proper steps had been talcea, \)o man need to have been retained in slavery since the adoption of the Constitution '} in truth, that there is no legal or rightful slavery in the United States; nor can there be, by any powers either in the State or United States go/ernment; much less is there any constitutional power in the individual, to make a slave of any person whatever ; that, unless for crimes committed against the laws of society, and which laws must have an equal bearing upon all, a man cannot be restrained in his life, liberty, or pursuit of happiness ; and, consequently, all the laws made by the different States to secure man in slavery are null and Toid, and, if carried into execution, are in direct violation of the Constitution of our country. To say onr fathers guaranteed slavery to the

STATKMiSNT Oi" THE qWESTION.

Sonth, is advaincing a doctriae so opposed to thek professed attachment to liberty, aiid to the doctrines advanced in, the Declaration of Independenco, and to the professed reasons which most of them gave for coming to this country, and would involve them in such a labyrinth of hypocrisy, that it seems as if no individual would be willing to mako himself obnoxious to the charge, and that he would paase for a long time before he would admit such a doctrine, ot would suffer it to i^ain publicity. To Say our fathers — the persons who came over in the Mayflower, that Penn, that^ the Germans — all left their shores, either openly avowing, or, by their subsequent practice, allowing, they came away to avoid the tyranny of their own "countries, and came to this continent, to these shores, with the express purpose of here enjoying greater freedom than at home, and of establishing, in this the^ wilderness, the basis of freer institutions than they wtre living under in their own country, bat, at the sa^ne time, beneatli this fair exterior they were entertiining doctiined which, if carried out, (and they have been carried out,) would introduce a tyranny as much worse than any existing in the several lands firom which they came as can be well conceived ; or that otir fathers, ^ho took an active part in our resrolutionary struggle, dioold have pla£yed the same §ame,~~ ^uld, while they were advancing the . " s^-^ evitot truthi?," " that all men were created equal|"t that they " bad an infiJienittiae jrigfai^ t& life, liberty, and pursuit of hapjanessi" r andei^Uwif^by

STATEMENT OF THE qCESTJON.

touching that cord in every noble and generous atn-Rd, and which, if properly struck, will be sure to vibrate in union with the master hand, and which did call forth the treasures and assistance of a Lafayette, and caused a Kosciusko to bleed ; that these meU; who advanced and maintained these principles before the world, did it only that they might gain the world's s^sistance and its applause, while they had determined, within themselves, to violate every pfinciple they professed, or only that they might be better able to impose on their brother man a tyranny equal in cruelty to any the world had ever witnessed, — is advancing a doctrine so abhorrent, we can scarce believe, had it not been asserted, it could have been entertained a augment. And yet what is it but saying all this, when we allow it to be understood, without any qualification, that our fathers, the moment it in their power to frame laws to govern the country to which they had resorted, should, in contempt of all their previous professions, place upon a permanent footing, and that with mialice prepense, a system of which they at least made a show, on account of its barbarity and the manner it was imposed upon them one cause of war? Such, a judgment seems too contrary to all of our preconceived notions of their integrity, to be for a moment admitted ; and^ if there was any thing in their actions that would at all give countenance to subh a construction of their conduct, some excoise oujo^ht to be found, some reason, either good or apparently so, which may have appeared, td their

STATEMENT OF THE QUESTION.

minds, to justify them in a course so oppoisite to what might have been expected.

It is not our intention, however, to advance the id6a that all the men of that age were perfect. That there were men who would not have been willing to act in such a hypocritical manner; and that there were many who did use their utmost influence to fasten upon the country this system of abominations, and, on account ijf their supposed interest involved, were willing to do any thing, provided this should be effected j and that many, after our independence was gained, took no ac^2ve interest in it, and would have been very glad had no change taken place, but, after it did take place, threw in what weight they could tp prevent any alteration in their domestic coticerus, — we have no doubt. And that such persons did effect much, and did, perhaps, prevent a general emancipation fi^m slavery throughout the United States at the time, there can, J)erhaps, be no donbt; rv^ither can there be any doubt that^ through their solicitations, and the honest fears of others, as to the consequence of having in theit midst, without more than ordinary restraint, a comparatively ignorant, barbaroi^s, and heatheu _ peo^e, the subject of emancipation was Irept in the badb[-ground, or involved so itysteriously as to be left, by those who would have taken aicliffeient cbtirse, to fptur« generations, to correct ati^ error thej aaay have committed ; asiid we find t^^t them took Hie inost aotive part in that s^u^J^^^ s&ci by whose! isfluence it was ia the iriaiii. carried 2*

on, were thwarted and prevented from doing b& ihtv would. Having gon« through one struggle, and being, as they themselves say, advanced m years, they left what of the work thoy had not finished to those who might come after thfiQi But J after all, alihoiigh they did not proclaim a geueral emancipation to the colored raco, yet we think they left no word by which slavery could be justified or maintained in tho Constitution of our country ; and t^at, so far as that instrument is coDcorned, it cannot be supported. This, we are aware, is an assertion contrary to the expressed opinion of many distinguished men. But, when a guaranty is given, we think there ought to be something more than innendoes to maintain it ; ihat the subject to be guaranteed should be exprestly stated ; thiat iiothmg should have been left to inference ; that, in a case so importent, a clear understanding should ha\^e been entertained ; there should have been left no doubt on . the Subject ; and y&t, in all of the public docnments that Were given to the Ainerioan people and to the world, the snbjec* of slavery is not mentioned but with reprobation. The nation at large were, no doubt, oppoised to slavery. SSo one, in tnat age, dared to assent slavery was a blessing; no one seemed to , think it was so ; but every demonstration that was made in regard to it was of a contrary character. The trade has been temitjd, at least when <5ondncted- on a foreign shore, piracy ; and their abhorrence of it has been shewn, in a greatw or less degree, in the various laws that have been made m subject. We must admit, however, they suffered, against the consent of the most active men ins the revolutionary struggle, this pirocy to continue twenty years after our present government was estabiishedi and, by so doing, laid the foundation of the troubles we now experience ; though the very manner they woided this permission ^ows they did; not feel over-anxious to leave ox\ iscord any justification, on their part, of its being done ; and that the present ideas in regard to it am but of late growth. The idea of its being a blessing, as & permanent institution,, does no» pear to have entered their heads. It was solely the want of laborers in the more southern States that induced them to consent to have it continued, and not because they had any s}'mpathy for ' the system. It was urged that the white man could not work on the rice plains of the South ; andi unless there could bfe a colored population there, they would have to remain a wilderness ; and that the AfncalQ would be better off in this country than in his own. These" ideas, with the fear th«y should not be able to maintiiin their liberties and the best goo(J of the eonntry without a Uulou of the States, i.ldnced them tn ronsf.nt to its temporary continuance. Its perpetuation, however, was not thought of, saving, perhaps, in the mini»s of some, the young giant was discovered * wbile it was but a suckling.

But it is asked how it is, then, that that which was considered so great an evil, at ^lie time pi which we are speaking, stiould in so short a time

STATEMENT OF THE QUESTION.

become to be considered of so much utility that it must not be spoken of but with approbation, and that the statesmen hi both of the great political parties of -our country so universally \incover their heads in its presence, and bow down to it as to a god from whom they have received their very existence.

Mr. Birney, in his letter to the Hon. Mr. Elmore, of South Carolina, in answer to certain inquities made of him respecting the intentions and prospects of the abolitionists of the North, states the case iti a clear and distinct light. He says, —

, " The ascendency that slavery has acquired and exercises. ID the adrninistratioa of the government, and the apprehension now prevailing among the sober and intel' ligent, irreapectiire of party, tliat it will soon overmatch the Constitutioa itself, may be ranked among the events of the last two or three years that effect the cause of the abolitbnist. The abolitionists regard the Constitution witih unabated affection. They hold in no common ' veneration the memory of those who made it. They would be the last to brand Franklin, and King, and Morris, and Wilton, and Sherman, and Hamilton, with the ioefl^ie infamy of attempting to engraft on the Consti* tutioo, and therefore to perpeiuatfi^ a system of oppression in absolute antagonism tQ its high and professed objects, one which their own practice coede^ned ; and this, too, when they had scarcely wiped away the dust ■ 9Xtd eWekt of the Bevolution from their. brows.

' Whilst abolitionists speak thiis ^f our constitutional fltiieirs, they do not '}\xs6ty the derolictioa from principles into yfU^ th«y were behttyed, when they iraparted ib ^wurksr ibdr l»uid» my pcHlrttr to coBfiry^ to the

I

statemejMt of the qckstiok.

continuance of such a system. They can oaly palliate itj by supposing that they thought slavery was already a waning institution, destined soon to pass away. In theip time, (1787,) slaves were conipirattvely of little value, there being then no great slave staple (as cotton is now) to make them profitable to the slaveholder.^

" Had the circumstances of the country , remained as - they then were, slave labor, always and every ^vhere the most expensive, would have disappeared before the com^^ petition of free labor. They had seen, too, the princi-. pies of libertj embodied in most of the State Conslitu* tions ; they had seen slavery utterly forbidden in that of Vermont, instantaneously abolished iu thaj of Massachusetts, and laws enacted in the other New England States^ and in Pennsylvania, for its gradual abolition. Well might they have anticipated that justice and humanity, now starting forth with fresh vigor, would, in their march, sweep away the whole system ; more especially as freedom of speech and the , press, the legitimate abolisher, not ^ only of the vice of slavery, but of every other that time should reveal in our institutions or practice, had beea fully secured to the people. Again, power was conferred on congress to put a stop to the African slave-trade, without which it was thought at that time to be impossible to maintain slavery as a system on this coatinent, so great was the havoc on human life. Authority was also granted to congress to prevent the transfer of slaves, as uriicles of commerce, from one State to another, and the introdjuction of slavery into the Territories/ All this was crowned by the power to prevent the admis-

. ^ The cnUivatiou of cottcxi was almost aiiknovm is the Uohed States before 17ff7. It was not till iMio years afterwards that it begaa' to be raised and exported. (See report ot the secretary of the treasnry, July 29, l^.y

• The fol5di5i6f is the opihi<Mi of the late OMef Jastiee Jay as to this pan oC the coMHttt^mtJ qaestion. It is ccntaiQed itt atettcar

22 sTATEsruHT or the question.

aioii into the Union of any new State, whose form of govemnicnt was repugnant tio the p/inciples of liberty set forth in the Constitution of the United States. The faithful execution by congress of these power?, it was reasonably enough supposed, would, at least, prevent the gro^vth of slavery, if it did not entirely remove it. Congress did, at tibie same time, execute one of them,- — deemed then the most effectual of the whole, but, as it turned out, the least so."

from him to the venerable Ellas LitUe. and can be added to what has been said and writtsa on the sabject of slavery :

" Nov. n, 1819. I cwwjur in the opinion it ought not to be inlr<hduced, ncr permiUed in aay of the new States ; and that it ought to be gradually diminished and abolished in tham all.'

" To use the constitutional authority of congress to prohibit the vugration and im^rtaHon of slaves into any of the States does not appear questionable.

"The first article of the Constitution specifies the legislative powers committed to congress. The ninth section of this article has these words: ' The migratioo or importation of such persons as any of the now existing States shaL! thiikk proper to admits shall not be prohibited by the congress prior to the year 1808; but a tax, or (iaty, may be imposed on such importation not exceeding tea dollars for each persc^.'

"I ander.$tand the sense and meaning of this clause to be, that the power of the congress, althotigh edmpeient ixiprohilnt mck migraHmmdisi^arUaicitj was not to foe exercised with respect to the TBKs existing States, ^nd them only till the year 1806, but that ccav^ gress were at liberty to make snch prohibiticois as to any new State which might in the mem time b« established. And, fhrther, that, from anda^r that period, they were authorized to make sttchprir hibiiioQ as to all States, whether new or old.

"Slaves wer« the pei^us intended. The name slav^ wtus avoided, on accoont of the existing tc^iiratiaa of slaveiy, ani its existing discpidancy with the pri^^^ of the Bevoluticm, and fijom i^e oMLscioasiiess of its being repugnant to those prcposiikMai^ike Deelaratioa of l^deptatd^nce : * 'VfTe hold these iirtitfas 'tol^irdferuNait,-*- that afitoea are creatidvqnnU ttcatthayaze <a^ d»wedJb|, t^ Oi^(^;inth,Mrtain cigh^; and thM,

aoMOg theK are life, Uberty, ajDd the piusQ^

STATKMKNT OF THK QUESTION. 23

He then goes on to state that the interdiction of the African slave trade did not diminish the trade itself, or mitigate its horrors. It simply transferred from Africa to America " its profits from African princes to American farmers." He doubted if slavery would have extended over so large a space as it now does, if the trade had not been interdicted ; for the cheap rate at which slaves could hav6 been im|)orted would have prevented the rearing them on American soil ; atid, if the internal commerce could be restricted, slavery would soon die of itself. They could not maintain it oil account of the competition of free labor. And the not using by congress of the power it possessed, or rather to the unfaithful appHcat'on of |heir power to other points, on which it was expected to act for the limitation and extirpation of slavery, that the hopes of our fathers have not been realized. Slavery has advanced to its present audacious position by steps at first gradual, and for a long time almost unnoticed ; afterwards by intimidation and corruption, up to the time of the " Missouri compromise,^' by which the nation was defrauded of its honor; and that, up to this time, slavery was looked upon as an evil that was to yield to the expwding and enlightened influences of our Constitutiop, principles, and regulations. I

He then proceeds :

It has already been said we have been brbu^ into oar present condition by the anfidthfolness of ;cob* greaB, dn ikH: exerting the power vested in it, to et&p dooeMic slave-trade* and in the abuse of tbi^ ^ptmet i»f

U4: Sr ATKliSNT . OB" THE ^jUES'SriON.

ad»iiubg new States into the Uaion. Kentucky made ffiFplioAtbOf in 1792, with a slavcholding Constitution in her hand. With what a mere ttclmicality congress sn£[ere€( itself to be dragged into torpor ! Shs was pari !of om of the original States^ and therefore entitled to a.U their privileges."

It should have been entitled to all the curses that the system of slavery necessarily imposes iipoti a community that upholds it.

"One precedent established, it was easy to make another. Tennessee was admitted in 1796, without scruple, on the same, ground.

" Thei next-triumph of slavery was in 1803, in the purchase of Louisiana, acknowledged afterwards, even by Jefierson who made it, to be unauthorized by the Consti^ tuUon) and in the establishment of elavdry throughout its vast limits^ actually and substantially under the auspices of thai instrument which declares its- only object to be ' ta form a more perfect union, establish htsticb, insure ItOHMsnc TttAifQnix.ici'nr, provide for the comnxm defence, promote the general wdfai«, and secure the blessings of UBEXTT to oufselves and our posterity.'

la ^uA oase the -violation of the Constitution was sufferod'to paets with bat little opposition, except from Masoftchuaetts, because we were content to receive in exchange multiplied commercial benelBts and enlarged towitojial limits.

*'^Th& aesA stride that slavery made over the GonstitoUoA was the admission of the State of tiouisiana into ^ ^t^i<^ 'SAe eottid claim no favor as part of an %ioaf^^t>Sliiie.^ i At^thia poit^ it mig^t have beeh mppit^ the fnsoit'^ fraedonif and of ^ Cmwdtntiim etfidii^ld ito tM^^iid 'mmti wwld have on^a ataod.

STATKMKNT OF 'J'HJC <4UESTI0N.

2$

But no : with the exception of Masaachusetts, they hesitated, aiui wem persuaded, to acquiesce, because the countiy was just about entering into a war with England, &i\d the crisis was unpropitious for discussing questiotw that would create divisions between ditlerent sections of the Union. ' We must ^ait till the country ih at peace.* Thus it was that Louisiana was admitted without a controversy.

^* Next followed, in 1017 and 1820, Mississippi md Alabansa, admitted, after the example of Kentucky end Tennessee, without any contest

Meantime, Florida Iiad given some uneasiness to the slaveholders of the neighboring States ; and, for iheir accommodation chiefly, a negotiation was set on foot by the government to purchase it.