Free remarks on the spirit of the federal Constitution, the practice of the federal government, and the obligations of the Union, respecting the exclusion of slavery from the territories and new states ...

Front matter

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I, ?J

If LIBRARY OF CONGRESS, j

Section I

THE original members of this republican confederacy, when colonies, found their political liberty menaced with an abridgment which yet would have left them, perhaps a larger portion of that blessing, and more scope for self respect and independent exertion, than were enjoyed by the nations of the European continent styling themselves the most free. But, exquisitely jealous and inflexibly tenacious of all the privileges known to the most liberal scheme of government, they resisted the first and slightest inroads upon those privileges, and in maintaining them, encountered with unshaken resolution, the severest trials and most formidable dangers* Throughout their magnanimous struggle, they bottomed their claim to them, not merely on the British constitution, their charters, and prescription, but on the nature of man and the behest of Providence. They ascended to first principles in their own favour; and in their Declaration of Independence,* began by proclaiming that all men are equal, and endowed by their Creator with certain unalienable rights, such as life, liberty, and the pursuit of happiness. They repeated this doctrine in their subsequent manifestoes;! they obtested Heaven and earth on the same ground; they constantly upbraided Great Britain with her inconsistency in endea\souring

« See, too, the Declaration of Rights of the Congress assembled at Philadelphia, September 1774: And the Declaration of the United Colonies (July 6, 1775) on taking up arms.

•J- See their Addresses to the People of the Colonies.

to wrest from them what her subjects at home vaunted as their birthright, and in refusing to extend to all ^ ithin the pale of her empire the full enjoyment of her constitution.* They pointed to the works of Sidney and Locke as the manuals of their immediate forefathers, and their own textbooks; they even appealed to the Bible in confirmation of the natural equality and independence of all the specie s.f This maxim, such of them as at once remodelled the.i icspective governments, had placed the first in the lisi of fundamentals;^: it was, in short, the device of the revolution; the frontispiece of all the revolutionary institutions.

The confederated colonies did not confine themselves to the assertion of the broadest theory of political rights; they descanted upon the topics of philanthropy and universal justice, of Christian charity and humility; and in reproaching the mother-country with the contrariety between her practice and professions, with her insensibility to human suffering and degradation, they took credit to themselves for the reverse. It was in alleged pursuance of those high considerations and pretensions to which I have adverted, that their delegates in Congress, without being specially empowered, passed and promulgated, several months before the Declaration of Independence, (6th April, 1770), a resolution that no slaves should be imported into any part of the conf deration. §

With all these circumstances, there was one feature in the social condition of most of the states, standing out in offensive contrast. The negrO'slavery which existed among them, formed a strange commentary upon the texts with which they sermonized throughout their revolution, and seemed to the distant world a gross anomaly and incongruity, giving

* See the Address (July 8, 1775) of the United Colonies to the Inhabitants of Great Britain: Also— the Address (May 26, 1775) to the Canadiansj and the Address (July 28, 1775) to the People of Ireland.

\ See note A .

% Constitution of Massachusetts. " All men are born free and equal, and have, certain natural, essential, and inalienable rights," &c. The language of the Constitutions of New Hampshire, New York, Pennsylvania, Delaware, &c. is the Same See note B.

§ See the Journals of CoDgress for 1776 to their revolutionary creed, and regenerated polity, an air of imposture or infatuated selfishness. They could not be supposed to entertain the opinion, that the African race did not belong to the family of man; or that, if gifted with less vigorous and comprehensive faculties of mind, that race or any other so disadvantaged, became a lawful prey to the more fortunate one, to be held in absolute property and unqualified subjection: Such opinions were understood to be exploded and scorned throughout Christendom.* They could not be admitted to be blind to the inherent wickedness and deformity of hereditary servitude; they had universally testified their conviction on this head in their denunciations of Great Britain; some of them had abolished the evil, avowedly from a sense of its enormity, as soon as they acquired the power, by their liberation from her yoke. Our negro-slavery presented itself, therefore, to the eyes of those who were unacquainted with its history and incidents, in a scandalous and opprobrious abstraction; — as a fixed contradiction and solecism disfiguring both our juridical and political codes.

Of these unfortunate appearances, all our federal assemblies, from the commencement of the revolution to the formation of our present government, must have been fully aware: but they were supported against the disgrace, by the knowledge that this slavery was not introduced, and could not be at once effaced, by the new sovereignties which they represented. It was a pre-existing, unavoidable evil, imputable to the mother country; and of which the extirpation was not to be even attempted, until the federal empire, at which they aimed, should be consolidated, and the American nation not only secure in independence, but matured in strength and resources. They were conscious, that, sooner, nothing could reasonably be expected from them; except, perhaps, the declaration that a course of remedy would be entered upon when that state of affairs was reached; and its uncertainty at the outset of the revolution, is the best excuse which can be offered why the first of them did not pledge the nation to the effort. It. was, perhaps, due to consistency,

* See note C.

to national honour, and to the cause of justice and morals, that the extirpation of slavery from the American soil, when this might be practicable, should be proclaimed a primary and settled purpose with the confederation which asserted such a character, such dispositions, and such motives of action, as are detailed in the Declaration of Independence.*

The Congress of 1787 would seem to have been particularly alive to the obligations in this matter, imposed by the facts which I have indicated above. They recognized the principle of universal abolition, in their proceeding with respect to the North West Territory; of which proceeding the history and import are especially worthy of attention.

The whole territory north of the river Ohio, and west of the state of Pennsylvania, extending northwardly to the northern boundary of the United States, and westwardly to the Mississippi, was claimed by Virginia. The states of Massachusetts and Connecticut claimed all that part which was within the breadth of their respective charters, and the state of New York had also an indeterminate claim to the country. As early as the year 1780, Congress recommended to all the states whose charters included ungranted territory, to cede it to the Union for national purposes; and the states without such territory, always contended that the lands gained by the common exertions, were or ought to be common property.f Some of the smaller withheld their ratification of the articles of confederation, in order fc> compel the cession for which they called as matter of right; and finally they carried their point. The act of cession of the state of New York is prefaced with the following recital.

" Whereas nothing under Divine Providence, can more effectually contribute to the tranquillity and safety of the

* The revolutionary governments of South America* in forming tWeir constitutions, either emancipated the slaves at once, or fixed a period for emancipatitjn. See the work entitled "Outline of the Revolution in South America."

t See Ramsay's History of the United States, Chap. 29.

United States of America, than a federal alliance, on such liberal principles as will give satisfaction to its respective members; and whereas the articles of confederation and perpetual union, recommended by the honourable Congress of the United States of America, have not proved acceptable to all the states, it having been conceived that a portion of the waste and uncultivated territory, within the limits or claims of certain states, ought to be appropria ed as a common fund for the expenses of the war: and the people of this state of New York, being, on all occasions, disposed to manifest their regard for their sister states, and their earnest desire to promote the general interest and security; and more especially to accelerate the federal alliance, by removing, as far as it depends upon them, the before mentioned impediment to its final accomplishment, &c."

The act of cession from the state of Massachusetts commences in the following language: ** Whereas several of the states in the union have at present no interest in the great and extensive tract of uncultivated country, lying in the western part of the United States, and it may be reasonable that the states abovementioned should be interested in the aforesaid country, &c. &c."

Of the immense territory ceded from these motives, the portion which Virginia conveyed was by far the largest. In two of the states, parties to the grant, slavery was still permitted; in the other two it had been abolished. None of them imposed a condition upon the United States, in their acts of cession, as to the toleration or prohibition of slavery in the countries ceded. Nor was there any general stipulation in favour of the settlers in them, on the score of the slaves which they held. But the Congress had added, to their recommendation abovementioned (of the 6th September 1780) a resolution dated October 10th, 1780 that " the unappropriated land which might be ceded or relinquished to the United States, should be settled and formed into distinct republican states, which should become members of the federal union, and have the same rights of sovereignty, freedom, and independence, as the other states." The state of

Virginia, in the act (20th October 1783) empowering her delegates to transfer to the United States, annexed to the authority, the condition, that " the territory ceded should be laid out and formed into states, and that the states so formed should be formed into republican states, and admitted members of the federal union, having- the same rights of sovereignty , freedom, and independence as the other state"

The North- West Territory being thus put, with these restrictions, at the disposal of the United States, Congress, their only representation, proceeded, by the same right by which they had negotiated and received the cession of the territory, to make permanent regulations for it; and passed accordingly an ordinance, dated July 13, 1787, for its government. This ordinance, worthy of the highest admiration for its perfect coincidence with all the principles and actions of which I have spoken,— -after making various dispositions, runs thus: — " And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws, and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which: forever hereafter, shall be formed in the said territory; to provide for the establishment of states therein and for their admission to a share in the federal councils on an equal footing with the original states, at as early periods as may be consistent xvith the general interest, it is hereby ordained and declared, that the following articles shall be considered as articles of compact, between the original states and the people and states of the said territory, and for ever remain unalterable, unless by common consent, &c."

The second of these solemn articles provides that no man shall be deprived of his liberty or property but by the judgment of his peers, or the laws of the land, &c: The third provides that the property, rights, and liberty of the Indians shall never be disturbed or invaded: The fifth provides that there shall be formed in the said territory, not less than three, nor more than five states, and that such states shall be admitted into the confederacy, on an equal footing with the original states in all respects whatever. The sixth article, with which we have now particularly to do, is as follows — " There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted; provided always, that any person escaping into the same, from whom labour or service is lawfully claimed in any one of the original states, such fugitive may be lawfully claimed, and conveyed to the person claiming his or her labour or service as aforesaid."

We thus see that the Congress, in the first instance in which a portion of the American territory was subjected to their jurisdiction, prohibited slavery for ever, in that portion; declaredly in pursuance of the general view of extending the fundamental principles of civil and religious liberty, and of fixing and establishing those principles as the basis of new republics which were to be introduced into the confederacy. In excluding slavery on these grounds, they stigmatized it as repugnant to the noble ends just stated; and have justified me in asserting that they recognized the principle of universal abolition. At least, it cannot be denied that they proclaimed the principle of its exclusion from all the new states, which might be admitted into the confederacy. This inference is fortified by the tenor of the provision in the sixth article concerning fugitive slaves, the right to recover whom, is limited to the original states. That the Congress looked to the addition of new members, besides the states to be formed out of the North Western Territory, is evident from the following provision of the fourth article; " the navigable waters leading into the Mississippi and the St. Lawrence and the carrying places between the same, shall be common highways and for ever free as well to the inhabitants of the said territory, as to the citizens ot the United States, and those of any other states that may be admitted into the confederacy"

The Congress proclaimed further, by the strain of this ordinance, and of their preceding Resolutions on the same subject, that the new states, though disabled from tolerating slavery, were still to be considered as having the same rights

B of sovereignty^ freedom, and independence, as the original states, and that, though so disabled, they en ered, when admitted, into the confederacy, upon an equal footing -with the original states in all respects whatever. The power of establishing slavery was thus denied to be among those rights: And the same degree of protection in the enjoyment of them, — an equal share in all the real benefits of the federal constitution, — was given to be understood as the meaning of the phrase last quoted.

Another important maxim was, in the same manner, avowed and determined on this occasion. The state of Virginia, in her act of cession, stipulated that " the French and Canadian inhabitants and other settlers of Kaskaskies, St. Vincents, and the neighbouring villages, who professed themselves citizens of Virginia, should have their possessions and titles confirmed to them, and be protected in the enjoyment of their rights and liberties."* The Congress, in establishing in their ordinance, rules of inheritance and testamentary disposition for the Territory, more conformable to the spirit of the American institutions than those which prevailed there, made an exception in favour of the above mentioned settlers, in the following terms: " Saving to the French and Canadian inhabitants, and other settlers of the Kaskaskies, Saint Vincents, and the neighbouring villages, who have heretofore professed themselves citizens of Virginia, their laws and customs now in force among them, relative to the descent and conveyance of property." But the Congress, in decreeing that there should be neither slavery nor involuntary servitude, made no exception in favour of those inhabitants and settlers, on the score of their slaves who were not inconsiderable in number in the proportion; and it is known that, to escape the operation of the ordinance in this respect, many families removed beyond the limits of the Territory. Congress thus rejected the idea of the faculty of retaining the slaves as such, or subjecting their offspring to perpetual bondage, being among " the rights and liberties," or " titles," or law-

• See 1st vol. Laws of the United States, p. 472.

ful " possessions," of the inhabitants and settlers. And the maxim to which I have alluded, as avowed and determined by the ordinance, is this — that the United States acting in a federal or collective capacity, could not admit a right of property in human flesh, where they had jurisdiction, nor understand it to be referred to, in any general stipulation concerning the unmolested enjoyment of rights, titles, liberties, or possessions.

The ordinance so pregnant with principles and views proscriptive of slavery, asserting so absolute a power over the subject in the case of federal territory, had the unanimous sanction, through the votes of delegates in the old Congress, not only of Virginia, but of the two Carolinas, and Georgia. Virginia did not think the conditions which she had imposed in the act of cession, violated b\ the regulations of the ordinance; her opinion was expressed not only in the votes of her delegates, but soon after, more directly, in an act of her own legislature. On receiving her grant, with the modifications which she had prescribed, Congress asked, by Resolution,* an alteration of the act of cession, as to her particular division of the territory ceded, into different states; adding to the request the following phrase, — " which states shall hereafter become members of the federal Union, and have the same rights of sovereignty, freedom, and independence, as the original states, in conformity with the resolution of Congress of the 10th of October, 1780." After the formation of the ordinance, Virginia passed an act (30th December, 1788) acceding to the request or recommendation of Congress contained in the Resolution; referring particularly to that Resolution; reciting in extensor and especially ratifying the fifth article of the compact of the ordinance, — in which article a change of the division which she had prescribed, was made. She left it to be necessarily implied by this act of confirmation, that she did not consider Congress as having, by the prohibition of slavery in the North West Territory, violated the pledge given in their Resolution of request, that the states to be formed out of the said territory should have the same rights of sovereignty, freedom, and independence, as the original states. The request of Congress on. the one hand that she would " empower the United States," to make a division different from that which she had traced, and her formal confirmation, on the other, of the arrangement in which that Assembly had departed from her plan, prove a common understanding as to the regularity of the interpretation of all the other parts of their several acts and proceedings in the case. The other southern states, as I shall have occasion to show hereafter, also ratified the ordinance directly; and it was re-enacted by the first Congress under the new constitution.

When communities which had acted and spoken, as I have noted; which had assumed, emphatically, the title of republics; which, after extorting the recognition of their independence, solemnly ascribed their signal triumph to the favour of Heaven propitiated by the sincerity of their declarations, the elevation of their motives, and the justice of their cause, — when they combined to establish a government national as well as federal, it could not be, that they would devise a system restricted, in its beneficence, to men of any particular complexion of body; equitable and advantageous only for themselves; securing their freedom and prosperity, but serving to rivet and perpetuate the thraldom of another description of the human race. When they entered into a compact of perpetual union and co-operation, they could not intend a partnership merely in military defence; in the culture of tobacco and wheat; in trade and navigation, or in territorial aggrandizement; — a partnership " subservient only to the gross animal existence of a temporary and perishable nature;" but rather one having also higher objects and interests, — universal justice and universal liberty — moral and intellectual perfection* in the utmost extent in which this could be promoted by political

* See Vattel, b. 2. c .

arrangements. And, with regard to the negro-slavery with which they were afflicted and stained, if they could not attempt its extinguishment, at least they would not fail to provide against its extension, and would so legislate as to favour to the utmost the end of abolition.

It must have been with impressions of this nature, that the Convention of 1787 appointed to create a federal constitution, entered upon their task. We may collect the fact from the tenor of the preamble to their system, in which the American people collectively are made to appear as the onlv agents on the occasion, and to propose as their chief ends, the establishment of justice, the promotion of the general welfare, and the perpetuation of the blessings of liberty.

On the subject of the negro-slavery the framers of the constitution, had, no doubt, the same opinions with respect to the quarter to which the guilt of it attached, and the necessitv of postponing all attempts at abolition, which I have described as common to the other federal assemblies. They were therefore, equally consoled under the disrepute inseparable from its continuance, and cautious about tampering with its cure. But, we must confess, that an explicit avowal of the principle of abolition was still more required from the Convention, than from the Congress that put forth the declaration of independence; because abolition was now more within the limits of practicability and calculation, and the debt of righteousness to Providence, greatly increased by the issue of the revolutionary struggle, and the career of prosperity opened to the nation.* If some such avowal was not made, — if some concurrence of national circumstances was not designated in the constitution, as the juncture when the attempt at abolition should be begun under the auspices and with the resources of the confederacy — we may presume, however, that the representatives of most of the states desired and urged such a course of proceeding, and only consented to waive it from the inflexi-

* See on this point the inaugural address of General Washington, as President of the United States, to Congress (April 30th 1789) and the answers of the Senate and House of Representatives. Note D.

bility of others of their body. There was more to hope on the subject of abolition, with, than without the national system of Union which they had in view; it could be attempted more safely, and effected more easily, under such a system, although no active power, no control whatever, with regard to the internal economy of the slave holding states in this respect, should be lodged in the new government. None, therefore, was insisted upon; and the whole subject of slavery within the limits of a number of the states, was left under their exclusive cognizance and control respectively.

But, it became necessarily a topic of reference and arrangement in the constitution; and here we shall see, that the framers of this instrument, were not wanting in the sense and views which were becoming in such men, and proper in themselves, and suitable to the occasion. They pronounced the condemnation of the institution of slavery, by abstaining from the use of the word slave, when they were called to refer to this class of beings; and substituting for it a term of vague import: They acted as one afflicted with an hereditary leprosy, or any other foul disease of similar origin, would do, in veiling it as far as possible from the eye of the world, though with the consciousness of being free from personal guilt.* They acknowledged by this expedient, its general odium and inherent turpitude, and established a pregnant admonition for the American people and particularly the slave holding states. Their reserve has been interpreted further into a belief that the constitution would survive the canker of slavery, and into the consequent design of excluding from the former, whatever might immediately awaken the recollection of its existence within the jurisdiction of the Republic. Be this as it may, the proceeding argues dispositions on their part every way adverse to the extension of the evil under the auspices of the svstem which they were forming.

* Mr Jay, in his letter to the Hon. Elias Boudinot, (17th Nov. 1819) makes the following remarks. "The word slaves was avoided, probably on account of the exist ng toleration of slavery, and its discordancy with »he principles ot tht> revolution, and from a consciousness of its being repugnant to some of the positions in the Declaration of Independence."

These dispositions are more directly proved by the tenor of that clause of the constitution which relates to the slave trade, and of which it belongs to my purpose to investigate the true meaning and scope. The clause is as follows — " The migration or importation of such persons as any of the states noxu existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person." " I understand the sense and meaning of this clause," says Mr. Jay, " to be — that the power of Congress, although competent to prohibit such migration and importation, was not to be exercised with respect to the then existing states, until the year 1808; but that the Congress were at liberty to make such prohibition as to any Jierv states, which might in the mean time be established; and, further, that from and after that period, they were authorized to make such prohibition as to all the states, whether new or old."

That the power of prohibition, with respect to the original members of the Union, was denied to the federal government until the expiration of twenty years, is a stain upon our national character, which is rendered the deeper by the Resolution to which I have already adverted, of the Congress of 1774, against the further importation of slaves into the thirteen colonies, and by the complaints which some of those colonies had, still earlier, preferred against the British crown on this score. The Congress of 1774 even exceeded what was afterwards deemed the measure of its competency, to arrest the slave trade; the Convention of 1787, with full and undisputed powers to suppress it at once, postponed the suppression for twenty years, showing the national virtue to have been more active and rigid in the crisis of danger, than in the season of security and ease.*

* There is, however, this excuse for the Convention; that most of the states had, themselves, prohibited the slave trade and the importation of slaves. Geor gia and South Carolina persisted in receiving them from abroad. See note E

** It were doubtless to be wished,'* says Mr. Madison, in the Federalist, " that the power of prohibiting the importation of slaves, had not been postponed uniil the year 1808, or rather, that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favour of humanity, that a period of twenty years may terminate for ever within these states, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that "period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few states which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union."

The immediate cause to which Mr. Madison alludes, of this impolitic and sinful restriction upon Congress, is explained by the same authority, in the Report of the debates of the Virginia Convention respecting the Constitution. I will extract the passage, in order that the discredit may fall upon the true culprits.

" The southern states would not have entered into the union of America, without the temporary permission of the slave trade. And if they were excluded from the union, the consequence might be dreadful to them and to us. We are not in a worse situation than before. That traffic is prohibited by our laws, and we may continue the prohibition. The union in general is not in a worse situation."

** The gentlemen from South Carolina, and Georgia argued in this manner: — ' We have now liberty to import this species of property, and much of the property now possessed, has been purchased, or otherwise acquired, in contemplation of improving it by the assistance of imported slaves. What would be the consequence of hindering us from it? The slaves of Virginia would rise in value, and we would be obliged to go to your markets.' I need not expatiate on this subject. Great as the evil is, a dismemberment of the union would be worse. If those states should disunite from the other states, for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers."*

The first remark which I shall make in respect to the construction of the clause in question is, that, though the word persons is employed, it refers exclusively to negro slaves. This is expressly affirmed by Mr. Jay.f The supposition that it was intended to invest Congress with the power of preventing at any time the emigration of zvhite freemen into any of the states, either the old or new, or that it was thought necessary Congress should be empowered to interfere to restrain them from admitting coloured freemen or white malefactors,— involves an absurdity, and has been universally rejected. Some idea of the kind was thrown out by the cavillers at the constitution, at the time it was proposed to the people for adoption, and Mr. Madison alludes to the objection in the following remarks. " Attempts have been made to pervert this clause into an objection against the constitution, by representing it on one side, as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government.":}: