The Relations of the Federal Government to Slavery
As to my personal opinion in regard to slavery, I am free to say I consider it an evil, which I hope will be eradicated from the earth, but I do not regard it as the greatest of evils, nor do I consider that it requires political action from the Federal government. On the contrary, I believe that while the question of slavery might be safely agitated, with a view to political action, in a consolidated or imperial government, or even in an American Federal State, it cannot under our Federal system of government be safely or rightly agitated as a national question. Its agitation as such has done more to alienate and embitter the two sections of our Union – more to rouse the spirit of slavery aggression and extension, and to tighten the bonds and increase the burdens of the slave, than it has done to effect emancipation. Slavery is an evil permitted by Providence for ends that time will reveal. From this form of social evil, he is still educing good, far more good to the slaves, as a class, than to the masters as a class. It must not be suddenly nor rashly dealt with. Like a disease that pervades the blood or the whole constitution of a man, it needs not, for it cannot be reached by, the exterminating knife or cautery of the surgeon; it requires the gradual, purifying and alterative influences of gentle medicines, that work their way almost imperceptibly to the very principle and seat of the malady.
For my part, while I yield to no man in my love of liberty and the rights of man, I frankly say I had rather that the "rivulet of African slavery" flow on for five hundred years to come, than to see around me the fragments of a dissevered Union. In that Union, and the silent steady workings of its glorious principles, more than in the conflict of antagonist and angry parties, rest the hopes, not alone of African emancipation, but of unborn nations.
The American Union grew out of the exigencies of the times. A common cause and a common danger united the colonies first in resistance to the aggressions and exactions of the British government, and finally in the overthrow of its power over them. With the declaration of their independence, came the conviction of the necessity of their permanent Union, and this conviction after much of doubt and debate, resulted in the adoption of the Articles of Confederation by the final ratification of Maryland, on 1st March, 1781, which continued in force until the present Constitution went into operation.
So long as the States were engaged in the war of the Revolution, although the confederation was found to be in many things weak and imperfect, amid the dangers and anxieties of those years of trial its defects were overlooked or supplied by the earnest patriotism of our fathers, and it accomplished its end in the triumph of independence. But it was not long after the peace of 1783, when the Congress came to carry on the Federal government with reference to the ends of peace and the commercial policy and general prosperity of the United States, that it was found that the Articles of Confederation could no longer answer as the Constitution of the United States. A leading writer of that day in addressing the public upon the subject, after enumerating many of the defects of the Confederation with reference to the powers of the Congress, summed up the whole in these brief words, "In short, they may declare everything but do nothing."
Judge Story remarks in speaking of this period of our history – "That the confederation had at least totally failed as an effectual instrument of government. It stood the shadow of a mighty name."
Judge Marshall on the same subject says – "The confederation was apparently expiring from mere debility."
Judge Story further says – "It is, indeed, difficult to over-charge any picture of the gloom end apprehension which pervaded the public councils, as well as the private meditations of the ablest men of the country."
It was under such circumstances that the convention for forming the present Constitution of the Union was called.
Into this convention were brought by the delegates of the States, the same unceasing jealousy and watchfulness, which had marked the formation of the confederation, in respect to the powers to be confided to the general government.
In the Articles of Confederation it had been declared "that each State retained its sovereignty, freedom and independence, and every power, jurisdiction and right not expressly delegated to the United States."
The States were generally unwilling to surrender anything of their internal sovereignty. They claimed then as they claim now, full right and power to regulate their own domestic institutions in their own way, and were willing to surrender to the general government only such powers as were necessary to the complete efficiency of a Federal government in attaining the purposes of the Union. These were in the language of Alexander Hamilton:
"The common defence of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries."
The difficulty of obtaining a ratification of the Constitution by the people of the States, was not less than the difficulty of framing it in convention. Georgia, New Jersey and Delaware unanimously approved the Constitution. It was supported by large majorities in Pennsylvania, Connecticut, Maryland and South Carolina. It was carried in Massachusetts, New York and Virginia only by a small majority. North Carolina and Rhode Island were the last to adopt it, and the former at first rejected it.
In the address of the convention to Congress on presenting the Constitution with the recommendation for its submission to and approval by the States, the convention say: "The Constitution which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable." In these few words of the framers of the Constitution, expressing its reason or spirit, we find the true guide to its interpretation and administration. The spirit of compromise, so far as relates to the clashing views or conflicting interests of different States or sections of the Union, pervades the Constitution in every part, and especially is this the case in reference to the now all-absorbing question of negro slavery.
What was the state of this institution at the adoption of the Constitution, and how did the Constitution deal with it?
The first introduction of African slaves into the American colonies was in 1620. The total number imported by means of the African slave trade between 1715 and 1790, was about 300,000. When the Constitution was ratified in 1790, the total number of slaves in all the States and territories was near 700,000. All the States ratifying the Constitution, except Massachusetts, held slaves; Virginia the largest number – over 293,000; New Hampshire the smallest number – 158. Even the granite hills of New Hampshire were not then free from the feet of bondmen.
Our fathers were not responsible for the existence of slavery in their midst. As already stated, the introduction of slaves had commenced in 1620, 156 years before the declaration of independence, and the institution had under the patronage of the British government, insidiously grown up and strengthened itself, especially in the Southern States, which were adapted to negro labor. There it had interwoven itself with the entire fabric of the social and domestic relations, and could not be suddenly or rashly severed without involving greater evils than its own existence.
It is undoubtedly true that a large number of the framers of the Constitution were themselves slaveholders, among them George Washington himself. With these men domestic slavery, though it might have been regarded as an evil, was certainly not looked upon as a mortal sin, nor were they, whatever might have been their theoretical opinions, practical believers in the doctrine of universal equality of rights or universal suffrage.
Here then, coeval with the organization of the Federal government, was the domestic institution of slavery, existing in all the States but one, and embracing over one sixth of their entire population. There were two very plain methods by which it might have been dealt with. One was by an express declaration of the Constitution, affirming as the Republican sectional party affirm, that slavery is a relic of barbarism, and therefore slavery shall be abolished in all the States and territories of the American Union. Another method was to have declared in the Constitution, as ultra men of the South now declare, that slavery is a benign institution, deserving of protection, encouragement and extension by the Federal government, and therefore slavery shall be protected and extended in all the States and territories of the American Union. Had the constitutional convention been a sectional and not a national organization; had its members been governed by a sectional and not a national spirit, they would doubtless have taken one or the other of the horns of this dilemma, but in that "spirit of amity, mutual deference and concession," which governed their lofty patriotism, they took neither of the extremes. They took the position that the institution of domestic slavery was of local origin and of local concern – a matter directly pertaining to the internal sovereignty of each State; that it was not a legitimate subject for national or Federal legislation, and so far as related to its extension or its abolition within the States, they left it where they found it, with the people of the States whom it most concerned, the Congress assuming only the right, after the period of twenty years, to prohibit the importations of slaves from beyond the limits of the United States. The political reason of this prohibition is apparent. Without it the principle of non-intervention with slavery by the Federal government which pervades the Constitution, could not have been carried out. So long as the foreign traffic in slaves was made lawful to any of the States, slavery was nationalized. American slave ships, engaged in a lawful commerce, and bearing the national flag, would be as much entitled to national protection as any other of the American mercantile marine. Permission of the African slave trade was essentially intervention in favor of slavery, and the right to prohibit it, and the exercise of that right, in no wise conflict with the principle of non-interference with it within the States.
There are but four provisions of the Constitution wherein the subject of slavery is alluded to, viz: Art. 1, sec. 2; art. 1, sec. 9; art. 4, sec. 2; and art. 5.
It is plain from these provisions —
1st – That the slaveholding States are entitled under the Constitution to representation in the national legislature upon three-fifths of their slaves, so long as slavery exists in those States; and they are subject to direct taxation accordingly.
2d – That the right under State laws to import slaves into the then existing States, was guaranteed for twenty years, or until 1808, and the guarded concession of the right involved the converse, that after 1808 the foreign slave trade was to be prohibited by Congress, for the reason already assigned, and any attempt by Congress now to open the African slave trade, would be as direct a moral violation of this compromise of the Constitution as if the Congress were to attempt directly to abolish slavery in any State.
3d – It is equally plain that the right of slave owners to recover fugitive slaves, escaping from the State where they are held, under the laws thereof, into another, is guaranteed.
The Federal Constitution so far as relates to the subject of slavery within the United States, involves the three propositions stated and nothing more, and there is nothing in these in the least degree expressing or implying a right in Congress to abolish or establish slavery in any State or territory of the Union. On the contrary, the whole tenor of the Constitution is, slavery is the creation of local law, and Congress is to let it alone.
Now as to the question of slavery in the territories and the power and policy of the Federal government concerning it there.
The power to acquire territory for the purpose of colonization or the creation of States was not expressly granted to the Federal government, either by the Articles of Confederation or by the Constitution, but it has been largely exercised under both systems of government. The acts of the government of the Confederation in accepting cessions from several of the States of unoccupied territory, claimed by them in the west, and organizing territorial governments therein, were declared in 1788, by as high authority as James Madison, to be "without the least color of constitutional authority." But as has been the case with many other usurpations of the Federal and other governments, the value of the ends to be attained seems to have justified the usurpation in the public mind.
The territory acquired by Congress under the Confederation was territory which was claimed by or belonged to certain of the original States. The territory acquired under the Constitution has been foreign territory. Louisiana was acquired in 1803 from France, Florida in 1819 from Spain, Texas in 1846 by annexation as a State, a portion of Oregon in 1846 by a boundary treaty, and a large territory including New Mexico, Utah and California by treaty with Mexico in 1848.
The purchase of Louisiana was a measure of Mr. Jefferson, but so serious were his doubts as to the constitutionality of the purchase, that he advised an amendment of the Constitution, but no such amendment was attempted, and the purchase was finally made and acquiesced in, upon the principle that the end justified the means. It seems now, however, to be generally conceded that the power of the Federal government to acquire territory, exists by implications either in the treaty making power or in the power to admit new States. In view of the only legitimate end and purpose of all such acquisitions, it is natural to look upon the power of acquiring as an incident of the power to admit new States.
The right or claim of some of the States, viz: New York, Virginia, Massachusetts, Connecticut, North Carolina, South Carolina and Georgia to a vast extent of waste and unoccupied territory, as embraced in their original charters or territorial limits, was a subject of serious concern in the Congress of the Confederation, and constituted for some time the only obstacle to the ratification of the Articles of Confederation. Delaware, Maryland and New Jersey, which had no such territory, were especially jealous on this subject, the two former peremptorily insisting upon the restriction of the boundaries of such of the States as claimed to extend to the Mississippi River or South Sea, to moderate limits, and that the property in the soil of the western territories should be held by the Federal government for the common benefit of all the States, as the same, to use the language of Delaware, "had been gained by the blood and treasure of all."
To remove this subject of contention, New York was the first to tender on 7th March, 1780, a surrender of her claim in western territory. On 6th Sept., 1780, the Congress, by resolution, recommended to the States concerned "a liberal surrender of a portion of their territorial claims, since they cannot be preserved entire without endangering the stability of the general confederacy." On 10th October, 1780, the Congress, by resolution, defined the condition upon which the cession of territory was asked, declaring that "such territory shall be disposed of for the common benefit of the United States, and be settled and formed into distinct republican States, which shall become members of the Federal Union, and have the same rights of sovereignty, freedom and independence as the other States."
Governed by that noble patriotism and devotion to the good of the Union, which marked the whole course of the revolution, and the foundation of the general government, all the States rose above the dictates of selfishness and State pride, and laid upon the altar of the Union, gifts that have grown to empires. The surrender of territory asked for by New Jersey, Maryland and Delaware, and recommended by Congress, was made. All the States but Georgia had ceded prior to the adoption of the Constitution. The cession of Georgia was completed in 1802. With the immense domain of fair and fertile lands, thus freely given to the Federal government by individual States, it was able to discharge the debts of the war of the revolution, and in various ways to provide for the common defence and promote the general welfare of the United States. No man in whose bosom glows a generous sentiment, can read the record of that period of our national history without feeling his heart swell with admiration and affection for the fathers of the Republic. Would that their sons would ever honor their memory by an imitation of their noble example of devotion to the Union!
In this surrender of territory to the general government, we distinctly mark, and it is for that purpose I have related the history, the same "spirit of amity, and of mutual deference and concession," which pervades the Constitution, and I would dwell here a moment to ask you, and especially sectional Republicans, who think that no good thing can come out of the Nazareth of the South, to note another fact: that of all the territory ceded to the United States by individual States, for the common benefit of the Union, by far the largest part was owned by what were then and are now Slave States. Massachusetts, New York, and Connecticut claimed largely, but without possessory right. Virginia, North Carolina, South Carolina and Georgia had superior claims to nearly all. The splendid empire that now embraces the States of Ohio, Indiana, Illinois, Michigan, Kentucky and Wisconsin was most of it once the property of the sovereign State of Virginia. Yet Virginia, then the largest slaveholding State of the Union, laid all this vast territory at the feet of the Union, with no other reward than the consciousness of love of country. She did not even stipulate for the preservation of her own "peculiar institution." Virginia has not alone given to the nation Washington, Jefferson, Madison, Monroe, Harrison, Clay, Henry, Marshall, heroes, statesmen and Presidents, whose valor aided to win our independence, and whose wisdom laid deep and broad the foundations of our Union, but by her magnanimity she added to the Union six of its noblest States, and from their citizens at least she should never hear the cry that taunts her with slavery. Rather let that cry go forth from puritan and abolition Massachusetts, as her sons read over her ancient Quaker laws, or count up the nefarious gains their slave-trading fathers made, while enjoying the twenty years lease of the African slave trade, granted by the Federal Constitution. Ridicule as we may the family pride or State pride of Virginia, or the sometimes Quixotic chivalry of her sons, they have reason to be proud of their noble mother, for her great names belong to American fame, and her history is our nation's glory. In view of all the past, I hope that day may never come when Virginia shall cease to be one of the Union as our fathers made it.
Over the territory thus acquired, the Congress of the Confederation had adopted two systems of government; viz: the ordinance of April 23, 1784, prepared by Thomas Jefferson, soon superseded by the more celebrated ordinance of July 13, 1787, prepared by Nathan Dane of Massachusetts. In its extent the first ordinance covered all territory ceded or to be ceded; the second ordinance covered only the territory north west of the Ohio.
I shall not refer to the Jefferson ordinance of 1784, further than to note these points concerning it.
First – It provided for temporary government, by which the people of the territory might regulate their own internal affairs free from the control of Congress; and,
Second – It did not prohibit slavery – a provision for that purpose having been stricken out by the vote of Southern States. This ordinance was superseded, as before stated, by that of July 13, 1787.
On the terms of this ordinance and its subsequent recognition under the Constitution, rests much of the argument of the advocates of Congressional intervention to prohibit slavery in the territories. This ordinance, as you doubtless all know, forever prohibited slavery in all the North west territory, but contained also the proviso for the surrender of fugitive slaves. I ask you to note in regard to the ordinance.
First – It applied only to territory acquired from Virginia north of the Ohio, and it was unanimously adopted; and it was a sufficient legal and moral ground for its recognition by the Congress after the adoption of the Federal Constitution, that the ordinance, whether made with or without authority, was in its terms a compact between all the States, and was recognized by all the States as such by tacit assent, if not express legislation. It was expressly so recognized by Virginia, Georgia and North Carolina. Consent had cured the usurpation of the Congress, if such it was, as Madison affirmed, and therefore, the ordinance, when the Constitution took effect, was legally and constitutionally an engagement of the United States, under the Confederation, binding upon the Federal government by express provision of the sixth article of the Constitution, declaring that "all debts contracted and engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation." It was upon this legal ground, as well as upon the ground that Indiana was not adapted to and did not need slave labor, that Congress refused to allow the petitions of Indiana while a territory, which petitions were approved by William Henry Harrison, for a suspension for a term of years of the sixth article of the ordinance of 1787, prohibiting slavery. It was a compact to which all the States were parties, and by its express terms, could not be repealed or suspended without their common consent.
Second – The prohibition of the ordinance, applied to territory substantially free from slavery, and which it was well understood was not adapted to slave labor. It raised no such question, as would have been raised, if it had been applied to territory where slavery then largely existed, or which was adapted to negro slave labor. It is, therefore, no precedent for Congressional action in such a case. The precedent of one case is not a rule of decision for another, unless the two are substantially alike. This noble ordinance of 1787, then rather affirmed a principle of freedom, than imposed a necessary practical prohibition, for it may be well to know, that notwithstanding the ordinance, there were as late as 1810, in Indiana, 237 slaves, and as late as 1820, in Illinois, 917 slaves, but upon a soil fitted by nature for the vigorous growth of freedom, African slavery, the tree of tropic climes, could not grow, and it withered and died, as it had done before in New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, New Jersey and Pennsylvania.
In connexion with the ordinance of 1787, another point may be alluded to here. In a very able speech made by Mr. Upham of Massachusetts, in opposition to the Kansas and Nebraska bill in the House of Representatives on 10th of May 1854, the point is made, that the prohibition of slavery in the ordinance of 1787, and the provisions of the Constitution regarding slavery, were the result of a bargain between the North and the South, by which the North gained on one hand exclusion of slavery from the North-west territory, and the right first to tax, and after twenty years to prohibit the African slave trade, and the South on the other hand gained the right to representation in slaves, the right to continue to import them for twenty years, and the right forever to reclaim fugitive slaves. According to this theory, the slave representation, the reclamation of fugitive slaves, and the right to twenty years of the African slave trade, were, to use Mr. Upham's language "the equivalent paid by the free States to the Slave States, in consideration of the abandonment by the Slave States of all claim to extend their slavery beyond their own limits." It is undoubtedly true, that the ordinance of 1787 and the Constitution were almost concurrent acts, but the facts of history will not sustain Mr. Upham's assumption of a bargain to the extent stated, yet it has sufficient basis to warrant the point, that the ordinance of 1787 was a compact and a compromise, and was never intended by the South as a concession of any right or power in Congress arbitrarily to prohibit slavery in any territory of the United States. It may be true that for their consent to have slavery excluded from the North-west territory, the South received an equivalent, but the exclusion and the equivalent applied only to the North west territory, and as to all territory thereafter acquired, the question remained the same as before the ordinance of 1787, and must depend on the Constitution itself, unaffected by the precedent of the ordinance. Let us consider the question under the Constitution.