SPEECH (continued 2)

so the constitution, about to recognize the most guilty and cruel of all relations between man and man, sought to avert its eyes from the act, and to pacify the remonstrances of conscience against every participation in the crime, by hiding the deed under a reputable word.

But let us look to the prohibitions of the constitution; for I maintain that there is not only no power, express or implied, in the constitution authorizing Congress to create or continue slavery in this District, but that it is debarred and prohibited from doing so, again and again.

I suppose no one will deny that the positive prohibitions, against the exercise of certain enumerated powers, apply to Congress, when legislating for this District, just as much as when legislating for the union at large. This doctrine has recently been strongly asserted by Mr. Calhoun in the Senate of the United States; and, as I would gladly produce conviction in southern minds, I make use of this southern authority. He affirms that Congress, in legislating for the territories, “is subject to many and important restrictions and conditions, of which some are expressed and others implied. Among the former may be classed all the general and absolute prohibitions of the constitution; that is, all those which prohibit the exercise of certain powers under any circumstances. In this class is included the prohibition of granting titles of nobility; passing ex post facto laws and bills of attainder; the suspension of the writ of habeas corpus, except in certain cases; making laws respecting the establishment of religion, or its free exercise, and every other of like description.”

Will any man say that Congress can pass an ex post facto law for this District, and defend itself by referring to its power of “exclusive legislation” over it? Can Congress pass a bill of attainder corrupting the blood of an inhabitant of this District, or repeal or suspend at any time his right to a writ of habeas corpus, or establish a religion here, or interdict the free exercise thereof? No jurist, no statesman, will pretend it.

But there is another prohibition in the constitution every whit as full and explicit as any of these. The fifth article of amendment declares that “no person shall be deprived of life, liberty, or property, without due process of law.”

Here the constitution uses the word “person,”—the most comprehensive word it could find. “No PERSON shall be deprived of life, liberty, or property, without due process of law.” Now, what does this word “person” mean? Or who, under the constitution, is such a “person” as cannot be deprived of life, liberty, or property, by virtue of an act of Congress, without due process of law? Let us take our definition of the word “person” from the constitution itself. “No person shall be a representative, who shall not have attained the age of twenty-five years,” &c., (see 2d clause of the 2d section of the 1st article.) “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.” (3d clause of the same section.) “No person shall be a senator who shall not have attained the age of thirty years,” &c. (1st art., 3d section, 3d clause.) “No person shall be convicted [of an impeachable offence, by the Senate] without the concurrence of two thirds.” (1st art., 3d section, 6th clause.) “No person holding any office under the United States, shall be a member of either House, during his continuance in office.” (1st art., 6th section, 2d clause.) “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited,”—“but a tax, or duty, may be imposed on such importation, not exceeding ten dollars for each person,” &c. (1st art., 9th section, 1st clause.) “No person holding any office of profit or trust,” “shall accept any present,” &c. (1st art., 9th section, 8th clause.) “No person holding an office of trust or profit under the United States, shall be appointed an elector.” (2d art., 1st section, 2d clause.) “The electors shall meet in their respective states and vote by ballot for two persons,” &c. “The person having the greatest number of votes shall be the President,” &c. “If no person have a majority,” &c. “In every case, after the choice of the President, the person having the greatest number of votes of the electors, shall be Vice President.” (2d art., 1st section, 2d clause.[7]) “No person except a natural born citizen,” &c., “shall be eligible to the office of President; neither shall any person be eligible to that office, who shall not have attained the age of thirty-five years,” &c. “No person shall be convicted of treason, unless on the testimony of two witnesses,” &c. (3d art., 3d sect., 3d clause.) “A person charged in any state with treason,” &c. (4th art., 2d section, 2d clause.) “No person held to service or labor,” &c. (4th art., 2d section, 3d clause.)

Now, it will be seen from all this, that the word “person” is used in the constitution in the most comprehensive sense. It embraces Indians, if taxed; it embraces natives of Africa; it embraces apprentices and slaves, or those held to service or labor; and it embraces every citizen, from the humblest to the highest, from the most true to the most treasonable. It embraces all, from the slave to the President of the United States. And after having used the word to embrace all these classes and descriptions of men, it proceeds to say, in an amendment, that “no PERSON shall be deprived of life, liberty, or property, without due process of law.” (Amendment, Article 5.)

The law of Maryland ceded this District to Congress, “in full and absolute right, as well of soil as of person, residing, or to reside therein.”

Now Congress, in attempting to legalize slavery in the District of Columbia, has provided in terms, by its adoption of the Maryland laws, that one man may hold another man in bondage in this District, “WITHOUT DUE PROCESS OF LAW,” and indeed without any process of law; may hold him in bondage from his birth; may beget him, and still hold him and his posterity in bondage. “Process of law” means legal proceedings and a jury trial. It is a phrase that does not pertain to the legislature, but to the courts. It means the institution of a suit in civil matters; the finding of an indictment, or an information in criminal ones; the issuing of subpœnas for witnesses, &c., in both. (See Art. 6 of Amendments to the Constitution.)

Now, a slave is a person deprived of his liberty and property, without any process of law. There has been no “due” process of law to reduce him to this miserable condition; there has been no process of law at all. A slave, therefore, in this District, is deprived of his liberty and property, in pursuance of the laws of Congress, without any legal process whatever, and therefore in flagrant contradiction of the fifth article of the Amendments to the Constitution of the United States. Hence, the act of Congress, purporting to continue the Maryland laws respecting slavery in this District, was, and is, and forever must be, until the constitution is altered, null and void.

There is a striking historical fact in regard to the phraseology of this fifth article of amendment. Its substance was proposed by several states. Virginia proposed it in the following words: “No freeman ought to be taken, imprisoned, or disseized of his freehold liberties, privileges, or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the law of the land.” (See 3 Elliot’s Debates, 593—Proceedings of June 27, 1788. Also, 4 Elliot’s Debates, 216, for the same amendment, as proposed by the State of New York.)

The Virginia amendment used the word “freeman.” It proposed that no “freeman” should be deprived, &c. The New York amendment used the word “person.” And the amendment was adopted and ratified, almost in the words of the New York phraseology. The word person was chosen, and therefore Congress has no constitutional power to deprive of life, liberty, or property, without due process of law, any being embraced in the definition of that word. By its own selection of words it is debarred not merely from depriving a “freeman,” but from depriving a “person” of this right.

When Congress attempted to legalize and perpetuate slavery in this District, it violated the fourth article of the Amendments, which declares “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” If Congress cannot authorize domiciliary searches and seizures against a single individual, can it degrade a whole race of men to the condition of slaves, and then say that because they are slaves, they shall not be “secure;” but shall be at the mercy of any alleged master, in regard to their persons,—to be commanded and restrained, to be bought and sold? If Congress cannot authorize searches and seizures of houses, papers, and effects, can it get round the constitution, by saying we will create a class of persons who shall have no power of owning any houses, papers, or effects, to be searched or seized?

Again; Congress shall pass “no bill of attainder.” What is a bill of attainder? It is a bill that works corruption of blood. It disfranchises its object. It takes away from him the common privileges of a citizen. It makes a man incapable of acquiring, inheriting, or transmitting property; incapable of holding office, or acting as attorney for others; and it shuts the door of the courts against him. These disabling consequences may descend to a man’s children after him, though this is not necessary. Now, to pass such a bill is a thing which Congress cannot do. But when Congress undertook to legalize slavery in this District, it undertook to do all this, and worse than all this. It attainted, not individuals merely, but a whole race. A slave is an outlaw; that is, he cannot make a contract; he cannot prosecute and defend in court; property cannot be acquired by him, or devised to him, or transmitted through him. A white man may give his testimony against him, but he cannot give his testimony against a white man. He is despoiled of his liberam legem,—his birthright. He cannot own the food or clothes he has earned. What is his, is his master’s. And this corruption of blood, which the law of slavery works, does not stop with the first, nor with the second generation,—not with the tenth nor the ten thousandth; but by the theory of the law, goes on forever. Bills of attainder, during the history of the worst periods of the world, have applied to individuals only, or at most to a family. But here, Congress, in defiance of the constitution, has undertaken to establish a degraded caste in society, and to perpetuate it through all generations. Now, can any reasonable man for a moment suppose that the constitution meant to debar Congress from passing acts of attainder against individuals, but to permit it to pass wholesale, sweeping laws, working disfranchisement of an entire race, and entailing degradation forever?

Let us look at another general prohibition of the constitution: “No title of nobility shall be granted by the United States.” (art. 1, § 9, clause 8.) “The distinction of rank and honors,” says Blackstone, “is necessary in every well-governed state, in order to reward such as are eminent for their services to the public.” But the framers of the constitution did not think so; the people of the United States did not think so; and therefore they incorporated a provision into their organic law that “no title of nobility should be granted.” But it matters not whether the favored individual is called “Marquess” or “Master.” If he is invested by the government with a monopoly of rights and privileges, in virtue of his title and its legal incidents, without any corresponding civil duties, he belongs to an order of nobility,—he is a nobleman. Mr. McDuffie defends the institution of slavery, on the ground that it establishes the highest of all ranks and the broadest of all distinctions between men. He says no nation has yet existed which has not in some form created the distinction of classes,—such as patrician and plebeian, or citizen and helot, or lord and commoner,—and that the institution of slavery stands here instead of these orders, and supersedes them all, by being equivalent to them all. Now, is it not inconceivable that the constitution should interdict the bestowment of special favors to distinguished individuals for meritorious services, and yet should authorize Congress to confer the highest of all earthly prerogatives,—the prerogative over property, liberty, and volition itself, upon one class of men over another class of men? Yet if Congress can create or legalize slavery, it can establish the worst order of nobility that ever existed. It can give to one class of men the power to own and to control, to punish and to despoil another class; to sell father, mother, wife, and children, into bondage. To prohibit Congress from doing one of these things, and to permit it to do the other, is straining at a gnat and swallowing a camel,—a whole caravan of camels!

But the same clause in the constitution which gives Congress the power of exclusive legislation over this District, also empowers it “to exercise like authority over all places purchased by the consent of the legislature of the state, in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” If, then, Congress has any constitutional power to legalize slavery in this District, it has the same power to legalize it, (that is, to create it,) in all places in the state of Massachusetts, or New York, or any other, where it may have obtained territory from a state for a fort, magazine, arsenal, dock-yard, or other needful building. Where it has obtained land in the middle of a city,—Philadelphia, New York, Boston, or Chicago,—for a custom-house, it may create slavery there. The power to do this is conferred in precisely the same words as the power by which it has been held that slavery can be established in the District of Columbia.

And now I will occupy the few minutes that are left me, in considering what seems to me the only plausible argument that can be urged in favor of the constitutionality of slavery in this District.

It may be said, that when a territory is obtained by one nation from another, whether by conquest or by treaty, the laws which governed the inhabitants at the time of the conquest or cession, remain in force until they are abrogated by the laws of the conquering or purchasing power. For this principle, the authority of Lord Mansfield, in the case of Campbell v. Hall, 1 Cowper, 208, may be cited. The decision of our own courts are to the same effect. (See United States, appellant, vs. Juan Percheman, 2 Gallison’s Reports, 501; Johnson vs. McIntosh, 7 Peters, 51; 8 Wheat. 543.) I do not dispute the authority of this case. But it does not touch the question I am arguing; or, so far as it bears upon it at all, it confirms the views I would enforce. The principle is, that the existing laws remain in force until they are abrogated. I agree to this. But in the case of the District of Columbia, there was a special agreement between Maryland and the United States, that as soon as the United States should legislate for the District, the laws of Maryland, as such, should cease to be operative here. On the 27th day of February, 1801, therefore, all the rights which the citizens of this District possessed, they possessed under the law of Congress, and not under the law of Maryland. On the day preceding, a citizen could have voted for governor or other state officers of Maryland; but on the day following, he could no longer vote for any such officer. On the day preceding, he could have voted for electors of President and Vice President of the United States; but on the day following, he was bereft of all such right of the elective franchise, and must accept such officers and legislators as the rest of the country might choose to elect for him. On the day preceding, he might, in the character of an insolvent debtor, have been discharged under the insolvent laws of Maryland; but on the day following, he could no longer be so discharged. On the day preceding, he might have been required, though a justice of the peace of the State of Maryland, to perform militia duty; but on the day following, if commissioned as a justice of the peace of the District of Columbia, he could not be compelled to perform militia duty, because he would, in such case, be an officer of the United States. On the day preceding, he might have sued in the circuit court of the United States, as being a citizen of Maryland; but, on the day following, he could not so sue, because he had ceased to be a citizen of a state. Thus the change of jurisdiction over him deprived him of some privileges, and relieved him from some burdens. It deprived him of these privileges, and relieved him from these burdens, notwithstanding the act of Congress had said, in unambiguous words, “the laws of the State of Maryland, AS THEY NOW EXIST, shall be and continue in force in that part of the said District which was ceded by that state to the United States.” But the most momentous change which was wrought by the transfer of the citizen from the jurisdiction of Maryland to the jurisdiction of the United States, was that which made it impossible for him any longer to hold a slave. Under the laws of Maryland, he might have held his slave, for her statutes had legalized slavery; but under the constitution of the United States, he could not hold a slave; for that constitution had given Congress no power to legalize slavery in this District, and had gone so far as to make prohibitions against it. His right to hold slaves then expired, or fell, like his right to vote for United States’ officers, or for state officers, or his right to be discharged under the Maryland insolvent law, or his right to sue in certain courts, &c., &c.

One point more, sir, and I have done. Why, says my opponent, did not the right to hold slaves continue after the change of jurisdiction, as well as the right to hold horses? For the plainest of all reasons, I answer: for the reason that a horse is property by the universal consent of mankind, by the recognition of every civilized court in Christendom, without any positive law declaring it to be the subject of ownership. But a man is not property, without positive law; without a law declaring him to be the subject of ownership. There was such a positive law in Maryland; but Congress, for want of constitutional authority, could not enact, revive, or continue it. And such I verily believe would have been the decision of the Supreme Court of the United States, had the question been carried before them immediately subsequent to the act of 1801. But now, as slavery has existed practically in this District for half a century, it is proper to pass a law abolishing it. It is better, under the present circumstances, that slavery should be abolished here by a law of Congress, than by the decision of a court; because Congress can provide an indemnity for the owners, and let the slaves go free. But should it be abolished by a legal adjudication, every slave would be hurried away to the south, and sold, he and his descendants, into perpetual bondage.

In justice, then, to the north, which ought not to bear the opprobrium of slavery in this capital of the nation; in justice to the slaves who are here held in bondage against legal, as well as natural right; and, in more than justice to the masters, whose alleged claims I am willing, under all the circumstances, to satisfy, let a law be forthwith passed for ascertaining and paying the market value of the slaves, and for repealing all laws which uphold slavery in this District.

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