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A Few friends of freedom, who believe the Constitution of the United States to be a sufficient warrant for giving liberty to all the people of the United States, make the following appeal against any support being given to the Republican Party at the ensuing election.
Boston, September, 1860.
[Back to Table of Contents] NOTE TO SECOND EDITION.
Although this address was published previous to the late presidential election, and was designed to have an effect upon it, it nevertheless contains constitutional opinions, which are deemed of permanent importance, and worthy of preservation. The opinions it expresses in regard to the Republican party will also be pertinent so long as that party shall occupy the grounds it has hitherto done.
Boston, November, 1860.
[Back to Table of Contents] ADDRESS.
[Back to Table of Contents] I.
The real question, that is now convulsing the nation, is not—as the Republican party would have us believe—whether slaves shall be carried from the States into the Territories? but whether anywhere, within the limits of the Union, one man shall be the property of another?
Whether a man, who is confessedly to be held as property, shall be so held in one place, rather than in another? in a State, rather than in a Territory? is a frivolous and impertinent question, in which the man himself can have no interest, and which is unworthy of a moment's consideration at this time, if not at all times. If he is to be a slave at all, the locality in which he is to be held, is a matter of no importance to him, and of little or no importance to the nation at large, or any of its people.
If there are to be slaves in the country, a humane man, instead of feeling himself degraded by their presence, would desire to have them in his neighborhood, that he might give them his sympathy, and if possible ameliorate their condition. And the man, who, like the Republican party, consents to the existence of slavery, so long as the slaves are but kept out of his sight, is at heart a tyrant and a brute. And if, at the same time, like the more conspicuous members of that party, he makes loud professions of devotion to liberty and humanity, he thereby just as loudly proclaims himself a hypocrite. And those Republican politicians, who, instead of insisting upon the liberation of the slaves, maintain, under the name of State Rights, the inviolability of the slaveholder's right of property in his slaves, in the States, and yet claim to be friends of liberty, because they cry, "Keep the slaves where they are;" "No removal of them into the Territories;" "Bring them not into our neighborhood,"—are either smitten with stupidity, as with a disease, or, what is more probable, are nothing else than selfish, cowardly, hypocritical, and unprincipled men, who, for the sake of gaining or retaining power, are simply making a useless noise about nothing, with the purpose of diverting men's minds from the true issue, and of thus postponing the inevitable contest, which every honest and brave man ought to be ready and eager to meet at once.
[Back to Table of Contents] II.
We repeat, that the true issue before the country—the one which sooner or later must be met—is nothing less than this: Shall any portion of the people of the United States be held as property at all?
So far as the practical solution of this question depends upon existing political institutions, it depends mainly upon the constitution of the United States.
If the constitution of the United States—"the supreme law of the land"—declares A to be a citizen of the United States (we use the term citizen in its technical sense) then, constitutionally speaking, he is a citizen of the United States everywhere throughout the United States,—"any thing in the constitution or laws of any State to the contrary notwithstanding;" and no State law or constitution can depose him from that status, or deprive him of the enjoyment of the least of those rights, which the national constitution guarantees to the citizens of the United States.
If, on the other hand, that same "supreme law" declares him to be property, then, constitutionally speaking, he is property everywhere under that law; and his owner may, by virtue of that law, carry him, as property, into any and every State in the Union, and there hold him as a slave forever,—"any thing in the constitutions or laws of such States to the contrary notwithstanding."
There can, therefore, be no such distinction made between the States, as that of free and slave States. All are alike free, or all are alike slave, States. They must all necessarily be either the one or the other; since the constitution of the United States, being "the supreme law" over all alike, must necessarily determine, in all alike, the status of each individual therein, relative to that "supreme law." In other words, the constitution of the United States, and not any constitutions or laws of the States, must determine, in the case of each and every individual, whether he be a citizen of the United States, and entitled to the benefits and protection of the national government, or not. If it determines that any particular person is a citizen of the United States, entitled to the benefits and protection of the national government, then certainly he cannot be deprived of such citizenship, or of the protection and benefits which that citizenship implies, by any subordinate or State government; for, in that case, the constitution of the United States would not be "the supreme law of the land." If, on the contrary, the constitution of the United States determines that any particular individual (native or naturalized) is not a citizen of the United States, nor entitled to the benefits and protection of the national government, it can do so only because it has itself declared him to be property; since that is the only cause that can prevent his being a citizen of the United States, and entitled, as such citizen, to the benefits and protection of the government of the United States. The declaration of no subordinate law, that he is property, can break the force of that "supreme law," which declares everybody (native and naturalized) a citizen, whom it does not itself declare to be a slave.
The government of the United States cannot act directly upon the State governments, as governments, requiring them to do this, and forbidding them to do that. It must, therefore, act directly upon individuals; else it cannot act at all. It is practically a government only so far as it does operate upon individuals. It must necessarily know, by virtue of the United States constitution, the individuals upon whom it is to operate; otherwise it would be in the situation of a government not knowing its own citizens, and consequently not knowing to whom its own duties were due.
The rights, which the general government secures to the people, are as much personal rights, and come home to each separate individual as directly and fully as do the rights secured to them by the State governments. And the rights secured to the people by the national government, as much imply personal liberty, on the part of the people, as do the rights secured to them by the State governments; for, without personal liberty, the former rights can no more be enjoyed than the latter. Hence the indispensable necessity that the general government should know, for itself, independently of the State governments, who are, and who are not (if any are not) citizens of the United States; for otherwise, we repeat, it cannot know to whom its own duties are due.
To say that it rests with the State governments to decide upon whom the United States government shall act, or upon whom it shall confer its protection or benefits, is equivalent to saying that "the supreme law" is dependent upon the arbitrary will of subordinate laws, for permission to operate at all as a law. It is consequently equivalent to saying that the subordinate law may nullify the supreme law, and exclude it from a State altogether, by simply declaring that no persons whatever, within the State, shall be citizens of the United States; and consequently that there shall be no persons, within the State, upon whom the supreme law can operate, or upon whom it shall confer its benefits.
We repeat the proposition, that, if the State constitutions or laws can determine who may, and who may not, be citizens of the United States, and enjoy the benefits of the United States government, each State may nullify the constitution, government, and laws of the United States, within such State, by declaring that there shall be, within the State, no citizens of the United States, to enjoy those benefits, or upon whom the laws of the United States shall operate.
It is, therefore, indispensable to the existence and operation of the government of the United States, that the constitution of the United States shall itself determine upon whom the United States government shall operate, and who are its citizens, "any thing in the constitutions or laws of the States to the contrary notwithstanding;" and that the State laws and constitutions shall be allowed to have nothing to do with the matter.
To say that a State can make a man a slave, is only another mode of saying that a State can deprive the United States of a citizen, and abolish the government of the United States, so far as that citizen is concerned. And to say that a State can deprive the United States of one citizen, is equivalent to saying that a State can deprive the government of the United States of all its citizens, within the State. And to say that a State can deprive the government of the United States of all its citizens, within the State, is equivalent to saying that the State can entirely abolish the United States government, within such State. This is the necessary conclusion of the doctrine, that the States can make a slave of any individual, who would otherwise be a citizen of the United States.
If all the people of the States were made slaves, plainly the United States government would have no citizens, upon whom it could operate; and it would, therefore, be virtually abolished. And, in just so far as the people of the United States are made slaves, in just so far is the United States government abolished.
This whole theory, therefore, that the States have a right to make slaves of the people of the United States, is nothing less than a theory that the States have the right to abolish the government of the United States, by withdrawing individuals from the operation of its laws.
To say, as is constantly done, that the United States constitution "recognizes," as slaves, those whom the States may declare to be slaves, is equivalent to charging the constitution with the absurdity of recognizing the right of the States to make slaves of the citizens of the United States. And to say that the constitution of the United States recognizes the right of the States to make slaves of the citizens of the United States, is equivalent to charging it with the absurdity of actually recognizing the right of each separate State to abolish the government of the United States, within such State.
It therefore results that the constitution of the United States, "the supreme law of the land," must necessarily fix the status of every individual relatively to that law; and that, in fixing the status of each and every individual, relatively to that law—that is, in determining whether an individual shall be a citizen of the United States or not,—it necessarily fixes his status as a freeman, or a slave.
And it necessarily does this independently of, and in defiance of, any subordinate or State law; for otherwise it could not be "supreme."
To say that the national constitution is "the supreme law of the land," and yet that it depends upon each of thirty-three State governments to say upon whom that supreme law shall operate, or whom it shall protect, is as absurd as it would be to say that one man is an absolute monarch over thirty-three States, and yet that he is wholly dependent upon the consent of thirty-three subordinate princes, for permission to rule over his own subjects.
If the constitution, laws, and government of the United States are to be limited, in their operation within each State, to such individuals as the States respectively may designate, then each State may, so far as its own territory is concerned, determine who may, and who may not, send and receive letters by the United States mail; who may, and who may not, go into a United States custom-house for purposes of commerce; who may, and who may not, go into a United States court-house; and so on. If this were the true relation between our general and State governments, then the United States constitution, instead of declaring that "this constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding," ought to have declared that this constitution, and the laws and treaties made by the United States in pursuance thereof, shall have effect, within each State, only so far as such State shall consent, or only upon such individuals as such State shall designate.
[Back to Table of Contents] III.
Another proof that the general government must determine for itself, independently of the State governments, who are, and who are not, citizens of the United States, is found in that provision of the constitution, which declares that "the United States shall guarantee to every State of this Union a republican form of government."
Although the constitution presumes that the State governments will be representative governments, yet this provision for "a republican form of government" certainly requires that the United States shall guarantee to the States something more than a mere representative government; for a government may be a representative government, and yet the constituent body—or the body enjoying the right of suffrage—be so small, and the principles of the government so exclusive and arbitrary, as to make the government a perfect tyranny, as to the great body of the people. A guaranty, therefore, of a representative government simply, would have been of no practical value to the people.
It is plain, too, from another part of the constitution, that the constitution does not mean to imply that a representative form of government is necessarily a republican form of government; because if it did, it would have made some specific provision as to the extent of the suffrage to be enjoyed by the constituent body. Whereas it leaves that matter to be regulated at the discretion of the States respectively.
It is certain, therefore, that the "republican form of government," which the United States are bound to guarantee to the States, is something essentially different from, and more than, a representative government, representing such portions only of the whole people as may chance to get the power of a State into their hands, wielding it arbitrarily for their own purposes.
What, then, is implied in this "republican form of government?" This certainly, if no more, is implied—for this must necessarily be implied in the very terms, "a republican form of government,"—viz., that at least all the members of the republic shall enjoy the protection of the laws.
Whatever other disagreements there may be in men's minds, as to the essential requisites of "a republican form of government," certainly no man in his senses can deny so self-evident a proposition as this,—that such a government necessarily implies that all the acknowledged members of the republic must be under the protection of the laws.
This being admitted, it follows that the United States must guarantee to each State a government, that shall give the protection of the laws to all the acknowledged members or citizens of the State.
But who are the acknowledged members or citizens of a State? We answer, that, whomsoever else they may, or may not, include, they must certainly include all the citizens of the United States, within the State. This must necessarily be so; because it would be absurd to suppose that those people, in the various States, who united to form the national government, and thereby made themselves citizens of the United States, would also unite to guarantee a republican form of government for each of the separate States, unless they themselves were personally to have the benefit of this guaranty. It certainly cannot be supposed that they would be so foolish and suicidal as to unite to guarantee to others a government within the States, the benefits of which could be denied to themselves, or the power of which could be turned against themselves for purposes of oppression.
This guaranty, then, on the part of the United States, of a "republican form of government" for each State, is a guaranty of a government, under which at least all the citizens of the United States, within the State, shall have the protection of the laws.
From this proposition it follows inevitably that the United States government must determine, independently of the State government, who are the citizens of the United States, within a State; for, otherwise, it could not know when it had fulfilled this guaranty to them of the protection of a republican form of government. The guaranty itself might be wholly or partially defeated, at the pleasure of the State government, if it were left to the State government itself to determine who were, and who were not, among those citizens of the United States, within the State, for whose benefit this guaranty had been made. And the State government might very likely have great motive to defeat the guaranty, either in whole or in part.
It must be borne in mind that this guaranty of a republican form of government to the citizens of the United States, within a State, is a guaranty against the oppressions of any anti-republican form of government, that may succeed in obtaining power in a State. Yet clearly the United States could not protect its own citizens against such anti-republican government within the States, unless it could determine, independently of the State governments, who its own citizens, within the States, were.
We insist that this argument is entirely conclusive to prove that the United States Government must determine, for itself, who are its own citizens within the respective States; and that the constitutions and laws of the States themselves can have nothing whatever to do with the matter.
[Back to Table of Contents] IV.
Still further proof that the constitution of the United States, and not the constitution or laws of the States, controls the citizenship of every person born in the country, is found in the fact that a simple act of congress is acknowledged by all to be sufficient, in defiance of all State laws and constitutions, to confer the privilege of United States citizenship upon persons of foreign birth. It would certainly be very absurd to give to congress such a power in regard to foreigners, if neither the United States constitution, nor the United States government had any similar power in regard to the natives of the country; for, in that case, the constitution would do more for foreigners than for natives.
[Back to Table of Contents] V.
We therefore hold it demonstrable, at least, if not self-evident, that the constitution of the United States, "the supreme law of the land," must, simply by virtue of its supremacy, fix the status of every individual in the United States, independently of the State governments; that it must operate directly upon each and every individual, native or naturalized, declaring him entitled, as a citizen of the United States, to the protection and benefits of the national government, or declaring him to be property, subject only to the will of his owner, and therefore entitled to no personal protection at all, either from the general or State governments.
[Back to Table of Contents] VI.
If it rests with the State governments to say whether the natives of the country shall be citizens of the United States, and have the protection of the national government, or be property, subject only to the will of their owners, then certainly it rests equally with the State governments to say whether naturalized persons shall be citizens or slaves; for naturalization by the United States government can at most but put the persons naturalized on a level with the natives. And that is all that the principle of naturalization implies.
This question therefore, as to the power of the States to convert men into property, is not one that concerns the natives of the country alone. It concerns all immigrants as well; since the general government can certainly have no more power to protect immigrants against being reduced to property, than it has to protect those born on the soil.
[Back to Table of Contents] VII.
There are, then, three decisive proofs that the United States government must determine for itself, independently of the State governments, who are, and who are not (if any are not) citizens of the United States.
The first of these proofs is, that otherwise the United States government could not know its own citizens, or consequently know to whom its own proper and ordinary duties were due.
The second proof is, that otherwise the United States government could not know when it had fulfilled its guaranty of "a republican form of government" to the citizens of the United States, within the States respectively.
The third proof is, that otherwise the United States constitution and laws could either do more for foreigners (by naturalization) than they can do for those born on the soil; or else naturalization itself, by the United States government, would be an utterly useless process for protecting the persons naturalized against being reduced to property by the State government.
[Back to Table of Contents] VIII.
Assuming it now to be settled, that the constitution of the United States fixes the status of every person, as a citizen or a slave; and that it does so, "any thing in the constitution or laws of any State to the contrary notwithstanding;" let us ascertain what its decision on this point is. To do so, we have only to ascertain by and for whom the constitution of the United States was established. This the instrument itself has explicitly informed us. It declares itself to have been established by "the people of the United States," for the benefit of "themselves and their posterity." From this declaration of the constitution itself there can be no appeal. And the instrument is to be interpreted throughout consistently with this declaration. Thus interpreted, it implies that all the then "people of the United States," with their "posterity," were to be citizens of the United States, and, as such, to have the benefit and protection of the general government; and consequently that none of them could be lawfully reduced to the condition of property. It also authorizes congress to naturalize all persons of foreign birth, coming into the country, without discriminating between those that may come in voluntarily, and those that may be brought in against their will. It also authorizes Congress "to punish offences against the law of nations;" and thus authorizes the punishment of all attempts to enslave the people of other nations, whether they come here voluntarily, or are brought here by force. It also, without making any discrimination as to persons, authorizes the writ of habeas corpus, which denies the right of property in man. It also requires the United States to "guarantee to every State in the Union a republican form of government;" under which at least all the citizens of the United States, within the State, shall have the protection of the laws. In these various ways, the constitution of the United States, "the supreme law of the land," has made the principle of property in man impossible anywhere within the United States; and has empowered the general government to maintain that principle, in opposition to any subordinate or State government.
We are aware that the supreme court of the United States, in the Dred Scott case, have asserted that the phrase, "the people of the United States," did not mean all the people, but only all the white people, of the United States. And they attempt to fortify this opinion by saying that the Declaration of Independence itself did not mean to assert that "all men were created equal," but only that all white men were created equal. To this view of the case we will, at this time, offer no other answer than this: that, if this famous clause of the Declaration of Independence is to be interpreted according to this opinion of the supreme court, the whole instrument must also be interpreted in accordance with it; and the necessary consequence would then be, that the Declaration of Independence absolved only the white people of the country from their allegiance to the English crown, leaving the black people still subject to that allegiance, and entitled to corresponding protection. Thus Queen Victoria would have now, in our midst, four millions of subjects, whose rights she ought at once to take care of, as she would undoubtedly be very willing to do.
We are also aware, that, although "the idea that there could be property in man" was studiously excluded from the constitution itself, it is nevertheless historically known that an understanding existed, outside of the constitution, among some of the framers, and other politicians of that day, that, if the honest character of the instrument itself should be successful in securing its adoption by the people, these framers and others would then use their influence to give to the instrument an interpretation favorable to the maintenance of slavery. And we are aware that it is now claimed that this outside understanding ought to be substituted, as it hitherto has been, for the instrument itself, and acknowledged as the real constitution, so far as slavery is concerned.
Our answer on this point is,—that this outside understanding could have existed among but a small portion of the whole people; that they dared not incorporate it in the constitution itself; that, instead of being any part of the constitution itself, it was but a traitorous conspiracy against the very constitution, which they, with others, induced the people of the United States to adopt; that it could have had no legal effect or validity, even among those who were actually parties to it; and that we, of this day, would not only be slaves, but idiots, if we were to allow the criminal purposes of these men to be substituted for the constitution; and thus suffer ourselves, in effect, to be governed by a set of dead traitors and tyrants, who no longer have any rights in this world; who, when living, dared put only honest purposes into the constitution; and who, if now living, would deserve to be punished for their treason and their crimes, rather than reverenced as patriots and statesmen, and taken as authority as to the true meaning of the constitution.
The fraudulent interpretation given to the constitution at large, in respect to slavery, has been accomplished mainly by means of the fraudulent interpretation given to the one word "free," in the clause relative to representation and direct taxation. The conspirators against freedom, with their dupes, have, from the foundation of the government, claimed that this word was used to describe a free person, as distinguished from a slave. Where as it had been used in England for centuries, and in this country from its first settlement, to describe a native or naturalized person, as distinguished from an alien. Thus our colonial charters guaranteed that persons born in the colonies should "be free and natural subjects, as if born in the realm of England." When the troubles arose between this and the mother country, in regard to taxation, our fathers insisted that they were "free British subjects," and therefore could not be taxed without their consent. And, up to the Revolution, the words free and freemen, if not the only words used, were the words principally used, to designate native or naturalized persons, as distinguished from aliens.
After the Revolution, the word "free" continued to be used in this political sense, through the country generally. And, at the time the constitution of the United States was adopted, it was so used in the constitution of Georgia, Art. XI.; in the general naturalization law of Georgia, passed Feb. 7, 1785, Sec. 2; in a statute of Georgia, passed Feb. 22, 1785, granting lands to the Count D'Estaing, and making him "a free citizen" of the State; in the constitution of South Carolina, Sec. 13; in a statute of South Carolina, passed March 27, 1787, naturalizing Hugh Alexander Nixon; in the constitution of North Carolina, Sec. 40; in the constitution of Pennsylvania, Sec. 42; in numerous acts of the legislature of Massachusetts, from the year 1784 to 1789, naturalizing the individuals named in them; in the charters of Rhode Island and Connecticut, then continued in force as constitutions; in the Articles of Confederation, Art. IV., Sec. 1; and in the Ordinance of 1787. The statutes and constitutions of several of the States used the words freeman and freemen in a nearly similar, if not in precisely the same, sense.
Usage, therefore,—even the usage of the then strongest slaveholding States themselves—and all legal rules of interpretation applicable to the case—and especially that controlling rule, which requires a meaning favorable to justice, rather than injustice, to be given to the words of all legal instruments whatsoever—required that the word "free," in the constitutional provision relative to representation and direct taxation, should be understood in this political sense, to distinguish the native and naturalized inhabitants of the country from aliens, and not to distinguish free persons from slaves.
But slavery, which can be maintained only by force and fraud, has hitherto succeeded in palming off upon the country a false interpretation of the word "free." And it is only by giving a fraudulent meaning to the word "free," that men have been made to believe that the constitution recognized the legality of slavery. Without the aid of this fraud, the other clauses, now held to refer to slaves, could probably never have had such a meaning fastened upon them; since there is nothing in their language that justifies such a meaning.
If we wish to enjoy any liberty ourselves, or do any thing for the liberation of others, it is time for us to emancipate ourselves from our intellectual and moral bondage to the frauds and crimes of dead slaveholders and their accomplices, and either read and execute our constitution as it is, or tear it in pieces. If the language of our constitution is not to be considered as conveying its true meaning, nor interpreted by the same rules by which all our other legal instruments are interpreted; if it is to be presumed, as it ever heretofore has been, that neither honest men, nor honest motives could have had any part in the formation or adoption of the constitution; but we are to search, outside of the instrument, for the private motives of every robber, kidnapper, hypocrite, scoundrel, and tyrant, who lived at the time it was adopted, and accept those motives, in place of those written in the instrument itself, as the only lawful principles of the government,—if such is the true mode of ascertaining the legal import of written constitutions, the sooner they are all given to the flames, the better it will be for the liberties of mankind, and the better we shall vindicate our own claims to the possession of common honesty and common sense. If we dare not correct the frauds of the past, and interpret our constitution by the same rules by which it ought to have been interpreted from the first,—if, in other words, we dare not decide for ourselves what the true principles of our constitution are, and whether those principles have been obeyed or violated by those appointed to administer it—we are ourselves wretched cowards and slaves, fit to be used as instruments for enslaving each other.
But, independently of the constitution of the United States, we know that slavery has never had any constitutional existence in this country, for these reasons:—
1. The colonial charters, the constitutional law of the colonies, required the legislation of the colonies to "be consonant to reason, and conformable, as nearly as circumstances would allow, to the laws, customs, and rights of the realm of England." This made slavery illegal up to the time of the Revolution.
2. Of all the State constitutions established and existing in 1787 or 1789, when the constitution of the United States was framed and adopted, not one established or authorized slavery. It was, therefore, impossible that the slavery then existing could have been legal.
3. Even of the statute law of the States, on the subject of slavery, in 1787 and 1789 (admitting such statute law to be, as it really was not, constitutional), none described the persons to be enslaved with such accuracy as that many, if indeed any, individuals could ever have been identified by it as slaves.
On the 19th of August, 1850, Senator Mason, of Virginia, confessed, in the Senate of the United States, that, so far as he knew, slavery had never been established by positive law in a single State in the Union. And in the United States House of Representatives, on the 14th day of March last, Mr. Curry, of Alabama, said,—
"No law, I believe, is found on our statute books authorizing the introduction of slavery; and, if positive precept is essential to the valid existence of slavery, the tenure by which our slaves are held is illegal and uncertain."
He also, in the same speech, said,—
"It has been frequently stated in congress, that slavery was not introduced into a single British colony by authority of law; and that there is not a statute in any slaveholding State legalizing African slavery, or 'constituting the original basis and foundation of title to slave property.' "
And he made no denial of the truth of this statement.
Thus we have abundant evidence that slavery had never had any legal existence in the country, up to the adoption of the constitution of the United States. And, if it had no legal existence at the time of the adoption of the United States constitution, that constitution necessarily made citizens of all the then people of the United States; for there can be no question that it made citizens of all, unless of such as were then legally held in bondage.
But, even if the constitutions and statute-books of every State had legalized slavery in the most unequivocal manner, the constitution of the United States would nevertheless have given freedom to all; because it made "the people of the United States," without discrimination, citizens of the United States; and was thenceforth to be "the supreme law of the land," "any thing" then existing in, as well as ever afterwards to be incorporated into, "the constitution or laws of any State to the contrary notwithstanding."
The adoption of a new constitution is a revolution; and the object of revolutions is to get rid of, and not to perpetuate, old abuses and wrongs. All new constitutions, therefore, should be construed as favorably as possible for the accomplishment of that end. For this reason, in construing the constitution of the United States, no notice can be taken of (with the view of perpetuating) any abuses or crimes tolerated, or even authorized, by the then existing State governments.
What excuse, then, has any one for saying, that, constitutionally speaking, our country is not a free one? free for the whole human race? and especially for all born on the soil?
[Back to Table of Contents] IX.
The palpable truth is, that the four millions of human beings now held in bondage in this country are, in the view of the constitution of the United States, full citizens of the United States, entitled, without any qualification, abatement, or discrimination whatever, to all the rights, privileges, and protection which that constitution guarantees to the white citizens of the United States, and that their citizenship has been withheld from them only by ignorance, and fraud, and force.
Such being the truth in regard to this portion of the citizens of the United States, it is the constitutional duty of both the general and State governments to protect them in their personal liberty, and in all the other rights which those governments secure to the other citizens of the United States.
It is as much the constitutional duty of the general government, as of the State governments, to protect the citizens of the United States in their personal liberty; for if it cannot secure to them their personal liberty, it can secure to them no other of the rights or privileges which it is bound to secure to them.
To enable the general government to secure to the people their personal liberty, it is supplied with all necessary powers. It is authorized to use the writ of habeas corpus, which of itself is sufficient to set at liberty all persons illegally restrained. It is authorized to arm and discipline the people as militia, and thus enable them to do something towards defending their own liberty. It is authorized "to make all laws which shall be necessary and proper for carrying into execution" the powers specifically enumerated. That is to say, it is authorized "to make all laws which shall be necessary and proper for carrying" home to each individual every right and every privilege which the constitution designs to secure to him; and the United States courts are required to take cognizance "of all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." In other words, they are authorized to take cognizance of all cases in which the question to be tried is the right which any individual has under the constitution, laws, or treaties of the United States. The United States are also bound to guarantee to all the citizens of the United States, within the States, the benefits of a republican form of government. There is, then, obviously no lack of powers delegated to the general government, to secure the personal liberty of all its citizens.
That it is as much the duty of the general, as of the State, governments to secure the personal liberty of the people of the United States, will be obvious from the following considerations:—
The people of the United States live under, and are citizens of, two governments, the general and the State governments. These two governments are mainly independent of each other; having, for the most part, distinct powers, distinct spheres of action, and owing distinct duties to the citizen. The purpose of the general government is to secure to the individual the enjoyment of a certain enumerated class of rights and privileges; and the object of the State governments is to secure him in the enjoyment of certain other rights and privileges. But both governments have at least one duty in common, viz., that of securing personal liberty to the citizen. This must necessarily be a duty common to both governments, because the enjoyment of each of the classes of rights and privileges before mentioned, to wit, those that are to be secured by the general government, and those that are to be secured by the State governments, necessarily imply the possession of personal liberty on his part; since without this liberty, none of the other rights or privileges to be secured to him by either government, can be enjoyed. It is necessary, therefore, that each government should have the right to secure his liberty to him, else it cannot secure to him the other rights and privileges which it is bound to secure to him. It is as necessary that the general government should have power to secure to him personal liberty, in order that he may enjoy all the other rights and privileges which the general government is bound to secure to him, as it is that the State governments should have power to secure his personal liberty, in order that he may enjoy all the other rights and privileges which it is the duty of the State governments to secure to him. It would be absurd to say that the general government is bound to secure to him certain rights and privileges, which implied the possession of personal liberty on his part, as an indispensable pre-requisite to his enjoyment of them, and yet that it had no power of its own to secure his liberty; for that would be equivalent to saying that the general government could not perform its own duties to the citizen, unless the State governments should have first placed him in a condition to have those duties performed,—a thing which the State governments might neglect or refuse to do.
The State governments have evidently no more right to interfere to prevent the citizen's enjoyment of the rights and privileges intended to be secured to him by the general government, than the general government has to interfere to prevent his enjoyment of the rights and privileges intended to be secured to him by the State governments. For example, the State governments have no more right to prevent his going into the post-offices, custom-houses, and court-houses, which the general government has provided for his benefit, than the general government has to prevent his travelling on the highways, or going into the schools, or court-houses, which the State governments have provided for his benefit.
This proposition seems to us so manifestly true as to need no elaboration. And yet, if either of these governments can reduce him to slavery, it can deprive him of all the rights and privileges which the other government is designed to secure to him. In other words, it can deprive that other government of a citizen, and thus abolish that other government itself, so far as that citizen is concerned. Certainly a State government has no more power to do this wrong towards the national government, than the national government has to do a similar wrong towards a State government. In short, neither government has any constitutional power to deprive the other of a citizen, by making him a slave.
Furthermore, each of these two governments has an equal right to defend their common citizens against being enslaved by the other. If, for example, the general government were to attempt to enslave its citizens within a State, the State government would clearly have the right to defend them against such enslavement; because they are its citizens as well as citizens of the United States. And, for the same reason, if a State government attempt to enslave its citizens within the United States, the general government clearly has the same right to resist such enslavement, that the State government would have in the other case; because they are citizens of the United States, as well as of the State.
This power of each government to resist the enslavement of their common citizens by the other, is clearly a power necessary for its self-preservation; a power that must, of necessity, belong to every government that has the power of maintaining its own existence. It must, therefore, as much belong to the general as to the State governments.
Still further: The principal, if not the sole object of our having two governments for the same citizen, would be entirely defeated, if each government had not an equal right to defend him against enslavement by the other. What is the grand object of having two governments over the same citizen? It is, that, if either government prove oppressive, he may fly for protection to the other. This right of flying from the oppression of one government to the protection of the other, makes it more difficult for him to be oppressed, than if he had no alternative but submission to a single government. This certainly is the only important, if not the only possible, advantage of our double system of government. Yet if either of these two governments can enslave their common citizen, and the other has no right to interfere for his protection, the principal, if not the only, benefit of our having two governments, is lost.
But our governments, instead of regarding this great and primary motive for their separate existence, have hitherto ignored it, and acted upon the theory, that it is the duty of each to go to the assistance of the other, when the latter finds its own strength inadequate to the accomplishment of its tyrannical purposes. This we see in the case of fugitive slaves. When a citizen of the United States, reduced to slavery by a State government, or by a private individual with the consent and co-operation of the State government, makes his escape beyond the jurisdiction and power of the State government, the United States government pursues him, recaptures him, and restores him to his tyrants. Thus the citizen, instead of finding his security in the double system of government under which he lives, finds in it only a double power of oppression united against him. What grosser violation of all the rational and legitimate purposes of our double system of government can be conceived of than this?
If these views are correct, it is just as much the constitutional duty, and just as clearly the constitutional right, of the general government to protect the people of the United States against enslavement by the State governments, as it is the constitutional duty and right of the State governments, to protect the same people against enslavement by the general government. The general government is as much set as a guard and a shield against enslavement by the State governments, as the latter are as guards and shields against enslavement by the former.
This view, too, of the object to be accomplished by our double system of government,—viz., the greater security of the citizen against the oppression of his government,—presents, more clearly perhaps than has before been done, the necessity that the general government should determine for itself, independently of the State governments, who are its own citizens, and who are entitled to its protection; for otherwise the general government could have power to protect against a State government only those whom the State government should consent to have thus protected against itself. It would be an absurdity to say that the general government was established to protect the people against the State governments, and yet that it is left to the State governments themselves to say whom the general government may thus protect. To allow the State governments the power to say whom the general government may, and whom it may not, protect against themselves (the State governments), would be depriving the general government of all power to protect any. It would be like allowing a man to protect, against a wolf, all lambs except those whom the wolf should choose to devour.
The conclusion necessarily is, that the general government must determine for itself, independently of the State governments, who are its citizens, and whom it will protect; and, if the general government makes this determination, it can, under the constitution of the United States, make no other determination than that all the native and naturalized inhabitants of the United States are its citizens, and entitled to its protection.
[Back to Table of Contents] X.
There is still another point of great practical importance to be considered. It is this: If those now held in bondage in this country are, in the view of "the supreme law of the land," citizens of the United States, entitled to the full privileges of citizenship equally with all the other citizens of the United States, then it is not only the constitutional right and duty of both the general and State governments to protect them in the enjoyment of all their rights as citizens, but it is also not merely a moral duty, but a strictly legal and constitutional right, of all the other citizens of the country to go, in their private capacity as individuals, to the rescue of those enslaved.
It is as much a legal right of one citizen to rescue another from the hands of a kidnapper, as to rescue him or her from a robber, ravisher, or assassin. And all the force necessary for the accomplishment of the object may be lawfully used.
When the government fails to protect the people against robbers, kidnappers, ravishers, and murderers, it is not only a legal right, but an imperative moral duty, of the people to take their mutual defence into their own hands. And the constitution recognizes this right, when it declares that "the right of the people to keep and bear arms shall not be infringed;" for "the right of the people to keep and bear arms" implies their right to use them when necessary for their protection.
We claim it as a legal and constitutional right to travel in all parts of our common country, and to perform the common offices of humanity towards all whom we may find needing them. And if, in our travels, we chance to see a fellow-man in the hands of a kidnapper or slaveholder, we claim the right to rescue him, at any necessary cost to the kidnapper. And, if any part of our country be unsafe for single travellers, or small companies of travellers, we claim the right to go in companies numerous enough to make ourselves safe, and to enable us to rescue all whom we may find needing our assistance.
And it is the legal duty of both the United States and all State courts—judges and juries—to protect us in the exercise of these rights.
[Back to Table of Contents] XI.
We call particular attention to the duties of juries in this matter. We believe in that noblest, and incomparably most valuable, of all the judicial opinions ever rendered by the Supreme Court of the United States, in which they declared, by the mouth of John Jay, the first, and great, and honest Chief-Justice, that even in civil suits (as well as criminal) juries have a right to judge of the law as well as the fact.
We also believe with the United States House of Representatives, who, in 1804, by a vote of 73 yeas to 32 nays, resolved to impeach Samuel Chase, one of the Justices of the Supreme Court of the United States, for, as they said, "endeavoring [in the trial of John Fries for treason] to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, involved in the verdict, which they were required to give," and declared such conduct "irregular," and "as dangerous to our liberties as it is novel to our laws and usages;" and that on "the rights of juries [to determine the law, as well as the fact] ultimately rest the liberty and safety of the American people."
We believe more than this. We believe that jurors, under our constitution, not only have the right to judge what the laws are, and whether they are consistent with the constitution, but that they have all the ancient and common-law right of jurors to judge of the justice of all laws whatsoever, which they are called upon to assist in enforcing, and to hold all of them invalid which conflict with their own ideas of justice. And that they are under no legal or moral obligation to hold valid every iniquitous statute, which they may suppose the letter of the constitution can possibly be interpreted to cover. It is their duty, as it is the duty of congresses and judges, to strive to see how much justice, and not how much injustice, the constitution can be made to authorize.
We believe that juries, and not congresses and judges, are the palladium of our liberties. We do not at all admit, as is now almost universally assumed to be the fact, that the people of this nation have ever given their rights and liberties into the sole keeping of legislators and judges. We hold that the assumption of the supreme court of the United States to decide, authoritatively for the people of this country, what their rights and liberties are, and what is the true meaning of the constitution, is an assumption of absolute power—an entire and flagrant usurpation—authorized by no word or syllable of the constitution; and that it should not be submitted to for a moment, unless we all of us design to be slaves.
We believe, too, that the practice of selecting jurors by judges and marshals, the servile and corrupt instruments of the government, who will of course select only those known to be favorable to the tyrannical measures of the government, is as utterly unconstitutional, as it necessarily must be destructive of liberty. We believe that juries should be, in fact, what they are in theory, viz., a fair epitome or representation of "the country," or people at large; and that to make them so, they must be selected by lot, or otherwise, from the whole body of male adults, without any choice or interference by the government, or any of its officers; and that when selected, no judge or other officer of the government can have any authority to question them as to whether they are in favor of, or opposed to, the laws that are to be put in issue.
In short, we believe it to be the purpose of our systems of government to maintain in force only those principles of justice which the people generally can understand, and in which they are agreed; and not to invest one portion of the people, either minority or majority, with unlimited power over the others.
Evidently the only tribunal known to our constitution, and to be relied on for the maintenance of such principles, is the jury.
We, therefore, hold that all legislative enactments and judicial opinions should be held subordinate to that general public conscience, which is presumed to be represented in the jury-box, by twelve men, taken indiscriminately from the whole people, and capable of giving judgments against persons or property only when they act with entire unanimity. And we believe it to be the primary and capital object of our constitutions thus "to get twelve honest men into a jury-box," to do justice, according to their own notions of it, between man and man, and to see that only such measures of government shall be enforced as they shall all deem just and proper.
We believe that, under this system of trial by jury, it will be safe for one human being to go to the rescue of another from the hands of kidnappers, ravishers, and slaveholders. We believe, also, that a government, so powerful and so tyrannical as to restrain men from the performance of these primary duties of humanity and justice, ought not to be suffered to exist.
[Back to Table of Contents] XII.
Turning now from our constitution, as it is in theory, and looking at our government, as it is in practice, what do we find? Do we find our national government securing to all its citizens the rights which it is constitutionally bound to secure to them? No. It does not know, nor even profess to know, foritself, who its own citizens are. It does not even profess to have any citizens, except such as the separate States may see fit to allow it to have. It dares not perform the first political duty towards the people of the United States individually, without first humbly asking the permission of the State governments. It ventures timidly, and hat in hand, within each State, as if fearful of being treated as an intruder, and obsequiously inquires if the State government will be pleased to allow "the supreme law of the land" the privilege of having a few citizens within the State, to save it from falling into contempt, and becoming a dead letter? Shamefacedly confessing its own barrenness, it simply offers itself as a dry nurse to any political children whom the States may see fit to commit partially to its care. Some of the States, confiding in its subserviency and desire to please, graciously suffer the forlorn and harmless creature to busy itself in various subordinate services, such as carrying letters, &c., for all their citizens. Others, less gracious towards it, or less disposed to allow their citizens the luxury of such a servant, give it strict orders to do nothing for these, those, and the others of their people—the exceptions amounting, in some States, to one half of the whole population. And the submissive creature follows these instructions to the letter, living, as it does, in perpetual fear lest the slightest transgression, on its part, should be followed by its summary dismissal from the political household. The only dignity left it is its name. It still calls itself the United States Government; fancies it has citizens of its own, whom it protects; plumes itself, in the eyes of the world, on its greatness and strength; talks contemptuously, and even indignantly, of those governments that suffer their subjects to be oppressed; and ostentatiously proffers its protection to those of all lands who will accept it. Yet all the while the affrighted and imbecile thing sees its own citizens snatched away from it, at the rate of a hundred thousand per annum, by the State governments, and dares neither lift its finger, nor raise its voice, to save one of them from the auctioncer's block, the slave-driver's whip, the ravisher's lust, the kidnapper's rapacity, or the ruffian's violence. The number of its living citizens (to say nothing of the dead) of whom it has thus been robbed, amounts at this day to some four millions; and the number doubles in every twenty-five years. Nevertheless, its greatest anxiety still is lest its servility and acquiescence shall not be so complete as to satisfy these kidnappers of its citizens. The only symptom of courage it dares ever exhibit, as against a State, is when it attempts some rapacious or unequal taxation, or commits the unnatural crime of pursuing its own flying citizens, not to protect them, but to subject them again to the tyranny from which they have once escaped.
[Back to Table of Contents] XIII.
While the government of the nation is thus prostrate and degraded, the people of the nation—at least that portion of them who show themselves in political organizations—instead of being alive to the authority of "the supreme law of the land," and the rights of the people under it, are divided into four wretched, infamous factions, all of whom agree in the political absurdity, that the status of a man, relative to "the supreme law of the land," is fixed by some subordinate law; that the rights of a man under the constitution of the United States are fixed by the constitutions and laws of the separate States. All of them agree, therefore, that the States may convert at least four millions citizens of the United States into property, with their posterity through all time. All of them agree in, and proclaim, the inviolability of property in man, within the United States, where alone the United States government has any jurisdiction of the question; and disagree with each other only as to the inviolability of property in man, outside of the United States, where the United States have no political jurisdiction at all.
[Back to Table of Contents] XIV.
We repeat that the United States has no political jurisdiction at all, outside of the United States. By this we mean that it has no political jurisdiction over people inhabiting the new countries west of the United States, which the United States has hitherto assumed to govern, under the name of "Territories." And we feel bound to make this assertion good.
Where does the constitution grant congress any power to govern any other people than those of the United States? Even the war-making power would not authorize us to hold a conquered people in subjection indefinitely, but only so long as they should remain enemies, or refuse to do justice. The treaty-making power is no power to make treaties adverse to the natural rights of mankind. It, therefore, includes no power to buy and sell mankind, with the territories on which they live. It no more implies a power, on our part, to purchase foreign people, and govern them as subjects, than it implies a power to sell a part of our own people to another nation, to be governed as subjects.
The only other power which can be claimed as authorizing such a government, is granted in the following words:
"The congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory [land] or other property, belonging to the United States."
Here is no grant of general political power over people, either within or without the United States; but only a power to control and dispose of, as property, the land—for "territory" is but land—and other property, belonging to the United States.
To make this idea more evident, let us divide the provision into two parts, and read them separately as follows:
1. "The congress shall have power to dispose of the territory [land] or other property, belonging to the United States."
Here plainly is no grant of political power over people.
2. "The congress shall have power to make all needful rules and regulations respecting the territory [land] or other property belonging to the United States."
Here is plainly no more grant of political power in connection with the land, than in connection with any "other property" belonging to the United States.
The power to "make all needful rules and regulations respecting land or other property belonging to the United States," is no grant of general political power over people.
The power granted is only such a degree of power over land and other property belonging to the United States, as may be necessary to secure such land and other property to the uses of the United States.
That this power is not one to establish any organized government over people, is proved by the fact that the power is certainly as ample in regard to "territory and other property," within any of the United States, as to territory and other property, outside of the United States. If, therefore, the power included a power to set up an organized government or territory outside of the United States, it would equally include a power to set up an organized government within each State, to the exclusion of the State authority, wherever the United States had "territory or other property" within a State. But nobody ever dreamed that the power authorized any such political monstrosity as this.
There is nothing in the language of the constitution, that implies that the land or other property spoken of, is outside of the United States. And as ours is distinctly a government of the United States, and not of other countries, the legal presumption is that the land and other property—more especially the land—belonging to the United States, is to be found within the United States, and not in other countries.
The United States have no rightful ownership of the unoccupied lands west of the United States. It is against the law of nature, and therefore impossible, that they should have any such ownership. Land is a part of the natural wealth of the world, created for the sustenance of mankind, and offered by the Creator as a free gift to those, and those only, who take actual possession of it. And actual possession means either actually living upon it, or improving it, by cutting down the trees, breaking up the soil, throwing a fence around it, or bestowing other useful labor upon it. Nothing short of this actual possession can give any one a rightful ownership of wilderness lands, or justify him in withholding it from those who wish to occupy it. Governments, which are but associations of individuals, can no more acquire any rightful ownership in wild lands, without this actual possession, than single individuals can do so. Until such lands are wanted for actual use, they must remain free and open for anybody and everybody, who chooses, to take possession of, and occupy them. Governments have no more right to assume the ownership of these lands, and demand a price for them, than they have to assume the ownership of the atmosphere, or the sunshine, and demand a price for them. They have no more right to claim the ownership of such lands, than of the birds and quadrupeds that inhabit them; or than they have to claim property in the ocean, and to demand a price of all who either sail upon it, or take fish out of it.
It is no answer to say that our government bought these lands of France or Mexico, for neither France nor Mexico had any rightful property in them, and could, therefore, convey no rightful title to them. Even in lands purchased of the Indians, the United States acquire no rightful property, except only in such as the latter actually cultivated, or occupied as habitations. Those which they merely roamed over in search of game, they had no exclusive property in, and could accordingly convey none.
The United States, therefore, have no rightful property in wild lands, even within the United States. Still less, if possible, have they any such property in wild lands outside of the United States.
There is nothing in the constitution that implies that the United States have any property in wild lands, either within or without the United States. "The territory [land] or other property belonging to the United States," spoken of in the constitution, must be presumed to be such land and other property as the United States can rightfully own; and not such as they may simply assume to own, in violation of the law of nature, and the natural rights of mankind.
There is just as much authority given to congress, by the constitution, to assume the ownership of the atmosphere, both within and without the United States, and "to dispose of, and make all needful rules and regulations respecting" it, as there is for their assuming such a power over wild lands, either within or without the United States.
This power granted to congress must be construed consistently, and only consistently, with the law of nature, if that be possible, and with the general purposes of the government. It must, therefore, if possible, be construed as applying to occupied, instead of wild lands, and to those lying within, rather than to those lying beyond, the geographical limits of the United States. And this is possible. "The power to dispose of, and make all needful rules and regulations respecting the territory [land] and other property belonging to the United States," and lying and being within the United States, is a power constantly needed in carrying on the daily operations of the government. It is needed in regard to every post-office, court-house, custom-house, or other real or personal property, whether absolutely owned, or temporarily occupied, by the United States. The power applies as well to lands and buildings temporarily leased, as to those absolutely owned; because a lease is a partial ownership.
The constitution specially provides that "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, dockyards, and other needful buildings, congress shall have power to exercise exclusive legislation." But inasmuch as the States might not give their consent—and could not even be expected to give their consent—to this "exclusive legislation" over all the "places" which the United States might purchase (or lease) for post-offices, court-houses, and "other needful buildings," it was necessary that congress, instead of a "power to exercise exclusive legislation" over such "places," should have power—without excluding the general jurisdiction of the States—"to make all needful rules and regulations respecting the territory [land, "places"] or other property" thus owned or occupied by the United States, in order to secure them to the uses, for which the United States designed them. Without such a power, the United States eould not establish even a post-office, without first getting the consent of the legislature of the State in which it was to be established.
We have, therefore, no need—in order to find "territory" [land, "places"] for this power to apply to—to assume that the United States, in violation of the law of nature, are the owners of wild lands, either within or without the United States. Still less have we need to assume that our government has power to exercise absolute political authority over peoples outside of the United States, in violation of the natural right of all men to govern themselves.
Peoples living outside of the United States, are, to us, foreign nations, to all intents and purposes. And it is of no importance whether those peoples are many or few; whether those countries are thinly or densely populated; whether the countries are contiguous to, or distant from the United States. In either case they are alike independent of us. Whether they are well, or ill governed, or have no government at all, is, politically speaking, no concern of ours.
Peoples settling on the lands west of the United States, are therefore, so far as we are concerned, independent nations, over whom we have no more political jurisdiction, than over the people of Canada, or England, or France, or Japan. Whether they have any organized governments at all, is no affair of ours, any more than whether the Indian tribes have, or have not, organized governments.
The fact that any of these peoples were once citizens of the United States, does not affect the question. We acknowledge and maintain the natural right of all men to renounce their country. And when our people leave their country, by making their permanent homes beyond its limits, they do renounce it. And if they ever wish to come into the Union, they must be admitted as States, the same as any other nation, that should wish to come into the Union, would have to do.
For these reasons we have, constitutionally, no political jurisdiction whatever over those countries west of the United States, which we are in the habit of governing under the name of "Territories."
[Back to Table of Contents] XV.
If any of our citizens are carried off by force into those countries, and there held as slaves, we have the right, by force of arms, if need be, to compel their restoration, the same as if they had been carried into any other country. And that is all the political power which our constitution gives us over slavery in those countries. We have no more power to assume general political jurisdiction there, in order to prevent our people being carried there as slaves, than we have to assume similar jurisdiction over any other parts of the earth, in order to prevent our people being carried into them as slaves.
[Back to Table of Contents] XVI.
Whether, therefore, property in man be, or be not, lawful in the United States, we have no general political jurisdiction over it outside of the United States. And we have no more jurisdiction over it in the territories, or countries west of the United States, than we have in any other territories or countries in the world, outside of the United States.
[Back to Table of Contents] XVII.
If any portion of our people are, in the view of our constitution, lawful property within the United States, then, constitutionally speaking, their owners have the right to carry them out of the United States into any other part of the world, and there hold them, or lose them, according to the laws that prevail there. If, on the other hand, no part of our people are, in the view of the constitution, lawful property within the United States, then, constitutionally speaking, we are bound to prevent any of them being carried out of the country as slaves, no matter what part of the world they may be carried to. And this is all we have to do with slavery outside of the United States.
[Back to Table of Contents] XVIII.
Neither has congress any authority to determine the question whether new States shall be admitted into the Union as slaveholding or as non-slaveholding States. All new States admitted into the Union must come into it subject to the constitution of the United States as "the supreme law." If this "supreme law" declares one man to be the property of another, then, constitutionally speaking, he is and must be such property as much in the new States as in the old; and congress has no power to prevent it. If, on the other hand, that supreme law declares that there is no property in man, then congress has no power to set aside this supreme law in favor of any new State, any more than in favor of any of the old ones.
[Back to Table of Contents] XIX.
Finally, even if it were admitted that congress has power under the constitution to govern countries outside of the United States, under the name of "territories," still the law of property, as established by the constitution within the United States, would necessarily be the law of those territories; for the constitution would be as much the supreme law of the territories as it is of the United States. If, therefore, the constitution makes a man property within the United States, it would necessarily make him property in the territories. If, on the other hand, the constitution makes every man free within the United States, it would necessarily make every man free in the territories.
[Back to Table of Contents] XX.
Whether, therefore, we have or have not political jurisdiction over the "territories," so called, the whole question of slavery, so far as our government is concerned, must be settled by determining whether the constitution of the United States, "the supreme law of the land," does or does not make a man a slave within the United States. If it does make him a slave anywhere within the United States, it makes him a slave everywhere within the United States—in old States and new States—and also in the territories, if our government has political jurisdiction over the territories. If, on the other hand, the constitution makes everybody free within the United States, it makes everybody free also in the territories, if our government has jurisdiction there.
[Back to Table of Contents] XXI.
In short, we have one "supreme law" on this point, extending over all the States, and over any other countries (if any others there be) subject to the jurisdiction of the constitution. And when we shall have determined whether that supreme law makes a man property or not, either in Massachusetts or Carolina, we shall have determined it for all other localities, whether States or territories, within which the constitution now is, or ever shall be, the "supreme law."
[Back to Table of Contents] XXII.
There is, therefore, no room or basis under the constitution for the four different factions that now exist in this country, in regard to slavery, either in the States, or in the territories. There is room only for this single question, viz.: Does the Constitution of the United States, "the supreme law of the land," make one man the property of another? All who take the affirmative of this question, and intend to live up to that principle, are bound, in consistency, to unite for the maintenance of it in all the States, and in all the territories (if the government has jurisdiction in the territories). All those who take the negative of the same question, and intend to live up to that principle, are bound, in consistency, to unite their forces for carrying that principle into effect throughout the United States, and throughout the territories (if congress has jurisdiction over the territories). And there is no middle ground whatever, on which any man can consistently stand, between these two directly antagonistic positions.
We ask all the people of the United States to take their position distinctly on the one side or the other of this question, at the ensuing election; and not to waste their energies or influence upon any of the frivolous and groundless issues, which divide the four different factions now contending for possession of the government.
[Back to Table of Contents] XXIII.
Of all these factions, the Republican is the most thoroughly senseless, baseless, aimless, inconsistent, and insincere. It has no constitutional principles to stand upon, and it lives up to no moral ones. It aims at nothing for freedom, and is sure to accomplish it. The other factions have at least the merits of frankness and consistency. They are openly on the side of slavery, and make no hypocritical grimaces at supporting it. The Republicans, on the other hand, are double-faced, double-tongued, hypocritical, and inconsistent to the last degree. We speak now of their presses and public men. Duplicity and deceit seem to be regarded by them as their only available capital. This results from the fact that the faction consists of two wings, one favorable to liberty, the other to slavery; neither of them alone strong enough for success; and neither of them honest enough to submit to present defeat for their principles. How to keep these two wings together until they shall have succeeded in clutching the spoils and power of office, is the great problem with the managers. The plan adopted is, to make, on the one hand, the most desperate efforts to prove that their consciences and all their moral sentiments are opposed to slavery, and that they will do every thing they constitutionally can, against it; and, on the other, to make equally desperate efforts to prove that they have the most sacred reverence for the constitution, and that the constitution gives them no power whatever to interfere with slavery in the States. So they cry to one wing of their party, "Put us in power, and we will do every thing we constitutionally can for liberty." To the other wing, they cry, "Put us in power. You can do it with perfect safety to slavery—for constitutionally we can do nothing against it, where it is."
It is lucky for these Jesuitical demagogues that there happen to be, bordering upon the United States, certain wilderness regions, over which the United States have hitherto usurped jurisdiction. This gives them an opportunity to make a show of living up to their professions, by appearing to carry on a terrific war against slavery, outside the United States, where it is not; while, within the United States, "where it is," they have no political quarrel with it whatever, but only make a pretence of having very violent moral sentiments.
Outside of the United States, where slavery is not, and where the United States really have no jurisdiction, the battle is made, by these men, to appear to be a real battle of statutes, at least, if not of principles. Within the United States, where slavery is, and where the United States have jurisdiction, the contest is plainly a mere contest of hypocrisy, rhetoric, and fustian, and a selfish struggle for the honors and spoils of office.
In this warfare, in which it is understood that slavery is not to be hurt, the weapons employed are mostly absurd, bombastic, and fraudulent watchwords, in preference to any constitutional principles, that might be dangerous to the object assailed. Among the watchwords are these: "Freedom National, Slavery Sectional;" "Free Labor and Free Men;" "Non-extension of Slavery;" "Down with the Slave Oligarchy," &c., &c. All these, as used by the Republicans, are either simple absurdities, or fair-sounding falsehoods.
Take, for example, "Freedom National, Slavery Sectional." This is both an absurdity and a falsehood, on its face; for how can freedom be national, so long as any section of the nation can be given up to slavery? "Freedom National," to have any sense, implies a paramount law for freedom pervading the whole nation; and is inconsistent with the idea that slavery can be legal in so much even as a section of the nation. But, in the mouths of the Republicans, "Freedom National, Slavery Sectional," means simply that, for territory outside of the United States, there is a paramount national law, that requires, or at least permits, liberty; while, within the United States, this national law is, or legally may be, overborne by local or sectional laws; and thus the entire territory of the nation be given up to "sectional slavery."
If there be any territory, within the United States, in regard to which this assumed national law of freedom is paramount, it can be, at most, only the District of Columbia, and a few places occupied as forts, arsenals, &c., over which congress have "exclusive legislation,"—places which are but as pin-points on the map of the nation.
And yet this false, absurd, self-contradictory, and ridiculous motto, which really means nothing for freedom, but gives up the whole nation to slavery, if the sections (States) so choose, has already had a long life, as expressing one of the cardinal principles of the Republican faction.
The motto, "Free Labor and Free Men," in the mouths of the Republicans, is as false and Jesuitical as "Freedom National, and Slavery Sectional." In the mouths of honest men, it would imply that they were intent upon giving freedom to labor and men, that now are not free. But in the mouths of Republicans, it only means that they are looking after the interests of the labor and the men, that are already free; and that, as for the the labor and the men, that are not free, they may remain in bondage for ever, for aught the Republicans will ever do to help them out of it.
This false, heartless, and infamous watchword—for it deserves no milder description—has also had a long life, as expressing a cardinal principle of the party.
But "The Non-Extension of Slavery" is the transcendant principle of these pretended advocates of liberty. It is in this sign they expect to conquer. What does it mean, or amount to? Does it mean the non-extension of slavery in point of time? No; for slavery may be extended through all time, without obstruction from them. Does it mean that slavery shall not be extended to new victims? No; for they consent that it may be extended to all the natural increase of the existing slaves, until at least the 850,000 square miles, now occupied by slavery, shall be filled with slaves to its utmost capacity.
What, then, is the extension to which they are so violently opposed? Why, it is only this: If a slave is carried by his owner from one place to another, that is an extension of slavery!
To continue a man and his posterity in slavery through all time, in one locality, is no extension of slavery, within the Republican meaning of the term. But to remove him from that locality to another, is an "extension of slavery" too horrible for these devotees of liberty to think of.
But these Republicans, either foolishly or fraudulently, encourage the idea, that if slavery can but be confined within the space it now occupies, it will soon die out; whereas, in truth, so far as mere space is concerned, it probably has enough already for it to live and flourish in for two, three, or five hundred years.
"Down with the Slave Oligarchy," would, to the minds of most men, convey the idea of an intention to overthrow the power of the slaveholders, by annihilating their right of property in their slaves. But in the creed of the Republicans, "Down with the Slave Oligarchy" means no such thing. It means only that the slaveholders shall not have so much influence in the administration of the national government, and especially that they shall not have so large a share of the national offices, as they have hitherto had the address to secure! And these wise Republicans imagine they can overthrow the slave oligarchy, and destroy their influence in the government, at the same time that they (the Republicans) maintain the inviolability of the three or four thousand millions of dollars of property in men, on which the slave oligarchy rest, and whence all their influence is derived.
But suppose the slave oligarchy can be overthrown, after this plan of the Republicans, what right have the latter, as consistent men, acting under the constitution, and pledged to its support, to attempt to overthrow the slave oligarchy, so long as they (the Republicans) concede that the oligarchy are not violating the constitution, by holding their fellow-men as property? According to the Republican interpretation of the constitution, the slave oligarchy are just as good citizens of the United States, exercising only their constitutional rights, as are the Republicans themselves. Indeed, there would be nothing inconsistent in the entire slave oligarchy being members of the Republican faction, in full communion. There is nothing in the political creed of the latter, that really need stick at all in the throats of the former; and the Republicans themselves, or, at least, a large portion of them, would, no doubt, be very much delighted by such an accession to their numbers.
"The Suppression of the Slave Trade" appears to be becoming one of their party watchwords. But, if southern juries will neither indict, nor convict, how is the slave trade to be suppressed? and how can the Republicans ask or expect southern juries to indict, or convict, for bringing slaves from Africa, so long as they (the Republicans) concede the right of property in four millions of native Americans? There is plainly no consistent way whatever, of suppressing the slave trade, except by giving freedom to the slaves already in the country, and all that may be brought in, and thus putting an end to the slave market. And there is, probably, no other possible way of suppressing it. Certainly, there is no other possible way of suppressing it, unless by such an enormous expenditure as the nation will never be likely to incur. "The Suppression of the Slave Trade" may, therefore, fairly be set down as another of the fraudulent watchwords of the Republican faction.
Still another specimen of the hypocrisy of this faction, is to be found in its name. It has taken to itself the name of Republican. They are great sticklers for the constitution, and many, or most, of them "strict constructionists," at that. The word, "Republican," is found but once in the constitution, and we are bound to presume that this constitutional party have chosen their name with reference to the signification of that word in the constitution. But do they propose "to guaranty to every State in this Union a republican form of government?"—a government that shall secure to all the citizens of the United States, within the States, the protection of the laws? And do they propose that the United States government shall ascertain for itself, independently of the State governments, who its own citizens are, within the States, that it may fulfil this guaranty to them? Not at all. So far from it, they hold, in the language of the Chicago platform, that—
"The maintenance inviolate of the rights of the States, and, especially, the right of each State to order and control its own domestic institutions, according to its own judgment exclusively, is essential to that balance of power, on which the perfection and endurance of our political faith depend; and we denounce the lawless invasion, by armed force, of any State or Territory, no matter under what pretext, as among the gravest of crimes."
This means, if it means any thing, that the "Slave Oligarchy," or any other body of men, however small, who may chance to get the power of a State into their hands, may reduce anybody and everybody, black and white, to slavery, without interference from the general government; and that for private persons to go to the rescue of their fellow-men, from these robbers, ravishers, and kidnappers, would be "among the gravest of crimes."
This is giving to slavery more than it ever asked. Even the Dred Scott judges themselves set up no such claim for it as this. Their opinion admits that whites are citizens of the United States, and, because they are such, cannot be enslaved by the States. Those judges are, in fact, "non-extensionists," and have a much better claim to that title than the Republicans; for they conceded that slavery could not be extended beyond the limits of a single race; whereas the Republicans acknowledge no such, or any other, limit to slavery in the States; or what is the same thing, to slavery in the United States.
We believe that no body even of southern men, respectable either for numbers, or as representatives of southern sentiment, have ever attempted to carry this doctrine of State Rights to such lengths, in behalf of slavery, as it is here conceded to them by the pretended friends of liberty. In fact, these men have been attempting, for years, to rival, at least, if not to outdo, even southern men, in their advocacy of this trumpery doctrine of "State Rights." And they have at length succeeded in absolutely outdoing them. And their motive has been, that they might gain the reputation of being champions of liberty at the north, and at the same time avoid the necessity of performing any service for liberty at the south, where alone any real service was needed.
It is of no avail, as a defence for the Republicans, to say, that, in another resolution, at Chicago, they declared—
"That the maintenance of the principles promulgated in the Declaration of Independence, and embodied in the federal constitution, is essential to the preservation of our Republican institutions; that the federal constitution, the rights of the States, and the union of the States, must and shall be preserved; and that we re-assert 'these truths to be self-evident,—that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.' "
It is of no avail that they declare these principles, in one breath, when, in the next, they declare the unlimited right of the States to reduce men to bondage. That they should assert such opposite principles, only proves what unblushing hypocrites and liars they are; and that they are ready to assert any principles whatever, from the extreme of liberty, to the extreme of slavery, if they can thereby conciliate or deceive the two opposite wings of their faction, and keep them together until their object of gaining possession of the government of the country shall be attained.
We have recently been told, on high Republican authority, that slavery is a "five-headed enormity." Well, be it so. How do the Republicans propose to combat this "five-headed enormity?" We think we have shown that they propose to combat it only by an imposture, that is at least twelve-headed. This twelve-headed imposture consists of these twelve separate impostures, to wit:—
1. The imposture of "Freedom National, and Slavery Sectional." That is to say, national freedom outside of the nation, and sectional slavery all over the nation itself, if the separate sections (States) shall so choose.
2. The imposture of "Free Labor and Free Men." That is to say, seeking the interests alone of the labor and the men, that are already free; and leaving the labor and the men, that are not free, to their fate.
3. The imposture of "Non-Extension of Slavery." That is to say, extending slavery through all time, and to as many new victims as the States respectively may choose; and "non-extending" it only by not removing the slaves from one place to another; but confining them within the narrow precincts of 850,000 square miles, where it is to be presumed, they will soon die out from compression, suffocation, or some other equally probable cause.
4. The imposture of "Down with the Slave Oligarchy." That is to say, maintaining the slaveholders' right of property in their slaves, but depriving them of the political influence which that property naturally gives them.
5. The imposture of "The Suppression of the Slave Trade." That is to say, the suppression of the slave trade by statutes, which slaveholding juries are expected to execute; the suppression of the slave trade, while the slave markets are kept open; the suppression of the slave trade in native Africans, while maintaining the slavery of native Americans.
6. The imposture of a party, calling itself "Republican," and professing to be a strictly constitutional party; and yet refusing to perform the only duty which the constitution enjoins under the specific name of "Republican."
7. The imposture of declaring that the constitution of the United States can be "the supreme law of the land," and yet have no effect in fixing the political status of the people.
8. The imposture of "State Rights." That is to say, the imposture of declaring that the States can reduce everybody, or anybody, to slavery, and thus deprive them of all rights under the national government; and yet the national government have no right to interfere for their protection.
9. The imposture of assuming that a government, which purports to be distinctly the government of the United States, and of no other country or people on earth, should have (as the Republicans claim) so much more political power over countries and peoples outside of the United States, than it has over those within the United States.
10. The imposture of assuming that the Republicans or any body else can make great conquests for liberty, and at the same time do nothing at all to the injury of slavery.
11. The consummate imposture of supposing that rhetoric, and fustian, and bombast, are the only weapons necessary to rid the earth of tyrants.
12. The transcendent imposture of supposing that the Republican party itself is, or ever has been, any thing else than an imposture.
We could probably find still other "heads" of this Republican imposture, if we had leisure and inclination to search for them. But, however many we might find, we should undoubtedly find them all filled with the same kind of emptiness as those we have enumerated.
But infidelity to their own convictions of the true character of the constitution of the United States, in its relation to slavery, is the crowning inconsistency, hypocrisy, and crime of large numbers, at least, of the Republican faction.
There is no reason to doubt that very large numbers of that wing of the party, which is sincerely favorable to liberty, including a due proportion of their public men, believe that the constitution of the United States is not only free itself from the stain of slavery, but that it gives liberty to all "the people of the United States," "any thing in the constitutions or laws of the States to the contrary notwithstanding."
Of the public men, who hold this belief, there is much evidence before the public, tending to prove—probably sufficient rationally to prove—that William H. Seward is one; that such has been his belief for many years; and that he has intended to avow it, and act upon it, so soon as he could do so with safety to his political aspirations. Nevertheless, such was the unprincipled character of the faction on whom he relied for his aggrandizement, and such the unprincipled character of the man himself (notwithstanding he has been supposed to combine more ability, courage, and integrity, than any other man of the faction) that, on the 29th of February last, he was weak and wicked enough, in view of his political exigencies, not only to ignore all constitutional opinions favorable to liberty, but virtually to ignore all the moral sentiments he had ever professed on the subject. With a deliberate heartlessness, so monstrous as to be disgusting, he treated of four millions of human beings—having the same natural rights with himself—and having also, in his own estimation (as we think) equal political rights with himself, under the constitution he had sworn to support—we say he heartlessly treated of these four millions of men, and their posterity, as so much capital—not, perhaps, the best form of capital—but whether, or not, the best form of capital, was for the owners to judge, and for experience to determine. And if, before this experiment should be closed, anybody should presume to recognize them as men, and attempt to convert them from capital into men; or recognize them as citizens of the United States, and go to their rescue (as any one, on the hypothesis of their being such citizens, might legally do) such a person, said Mr. Seward, must necessarily, and may justly, be hung.
Thus this shameless man stood out, and stripped himself before the eyes of all people, and labored, in their presence, to cover himself all over with this moral and political filth, in order to deaden the hated odors of liberty, humanity, and justice, which he feared might be still clinging to him, as relics of his former professions (and principles, if he ever had any), and thereby fit himself, if possible, to become the candidate of his faction. And the infamous character of the faction itself is to be inferred from the fact, that all this self-defilement, on his part, was unsuccessful to secure for him their confidence. They feared that at least the smell of liberty might still be upon him; and, therefore, fixed their choice upon one, who, if not more clear of all real love for freedom, was at least less suspected of any such disqualification.
What we have supposed to be true of Mr. Seward, we have good reason to believe to be also true of several, perhaps many, other Republican members of congress, viz., that, believing the slaves in this country to be, in the view of the constitution of the United States, full citizens of the United States, equally with themselves, they nevertheless, for the sake of gaining power, publicly acknowledge and declare their enslavement to be constitutional, and that the general government has no authority to liberate them.
We think the friends of liberty, in every congressional district, should look sharply after their representatives on this point. We do not wish to send men to congress, who will belie the constitution, they swear to support. We do not even wish to send them there to give us essays on the moral nature of slavery. We understand that matter already. But, as John Brown would say, we want men there, who, believing the constitution gives liberty to all, will put the thing through.
We understand the reasons given, in private, by these men, why they do not declare that slavery is unconstitutional, and that the general government has power to abolish it, to be, That the people are not ready for it! That the Republicans must first getpossession of the government! That is to say, these men must persist in their false asseverations, that the general government has no power to abolish slavery; that they, if placed in possession of that government, never will abolish it; but will, on the contrary, sustain it in the States where it is—they must persist in these asseverations, until they get the general government into their hands; then, as they wish it to be inferred, they will avow the fraud by which they obtained their power; will take it for granted that the people are ready to be informed what the constitutional law of the country really is; and will proceed to put it into execution, by giving liberty to all!
Spirits of Hampden, and Pym, and Sidney, and Elliot; of Otis, and Jefferson, and the Adamses! Did you, in the full possession of freedom of speech and the press; with steam and electricity to carry your words to the people; with boundless wealth, the moral sentiments of the world, and the constitutional law of your countries, on your side—did you, under such circumstances as these, resist tyranny, by asserting it to be legal, and swearing that you would support it, where it prevailed? and declaring that you would only oppose its extension into new regions? Did you do all this under the pretence that the people were not ready for the truth? that you must get possession of all the high places of power, before you could do or say any thing for freedom? and that, when you should have obtained these places, you would declare the frauds and perjuries you had committed to gain them? and would then become traitors to tyranny, and faithful to freedom? Was it by such ways as these, that you prepared the hearts of the people to stand by you in the great struggles which you saw before you? Or did you not rather, in the midst of poverty; with feeble means of communication and concert; and with dungeons and scaffolds before your eyes, proclaim, with all your strength, that tyranny, in its veriest strongholds, was but an usurpation? confident in the truth, that, next to the law of nature, the constitutional law of your countries was the strongest weapon you could use in behalf of liberty? and that fraud, and falsehood, and perjury were instruments as useless and suicidal as they were base?
Tell us, also, are the men we now have among us, the Sewards, and Chases, and Sumners, and Greeleys, and Lincolns, and Hales—are these, and such men as these, your legitimate successors? If they are, why have not mankind spit upon your memories?
[Back to Table of Contents] XXIV.
It is abundantly evident, from what has now been said, that the constitution of the United States, "the supreme law of the land," must necessarily fix the status of every individual, within the United States, either as a free person, or a slave; and that it must do this, "any thing in the constitution or laws of any State to the contrary notwithstanding." It is also abundantly evident that, if any person be made free by that supreme law, he is free everywhere under that law; and that, if any one be made a slave by that law, then, constitutionally speaking, he is a slave everywhere under that law; and his owner may carry him, and hold him, as property, wherever he pleases, within the United States, free of all responsibility to the constitutions or laws of the States.
It is also evident that, if the United States constitution itself makes a man slave, the general government, no more than the State governments, can give him his freedom.
The real issue, then, before the country, is, whether slavery is lawful everywhere within the United States, with no power, either in the general or State governments, to prohibit it, without an amendment to the constitution of the United States? or whether it be unlawful everywhere, within the United States, and it be the duty of both the general and State governments to prohibit it?
We entreat all, who act politically under the constitution of the United States, to keep this issue distinctly in view, and to hold all men and all parties strictly to it; and to give no vote, and no word of sympathy or support, to any man, or body of men, who either evade it, or hesitate, or equivocate about it. Above all, give no vote or support to those public men, who give their rant, declamation, and pretended moral sentiments to liberty, and, at the same time, give over to slavery the constitution of the country, and their oaths to support it. These men are practically the best supporters of slavery there now are in the country. They do it a service, which no other men can. From the confidence reposed in their professions, they have power to deceive honest men as to their rights and duties under the constitution, and thus hold them back from any direct assault, political or otherwise. And this power they are exerting to their utmost for the security of slavery. The open friends of slavery have nearly or quite lost all power of this kind. They have also deprived themselves of nearly all moral sympathy and support. By their indiscreet and head-long zeal for slavery, they long ago disgusted everybody but themselves. They have now succeeded in disgusting even themselves, especially in the north. Their ranks are broken, their minds disaffected, and both their moral and political power in a great measure wasted away. Should any one of the factions, into which they are divided, succeed in filling the executive department of the government, that acquisition will give them no real power in the country. Their possession of that department, therefore, is not a thing to be dreaded. Better, far better, that the presidency should be in the hands of an open, but powerless enemy of liberty, than in those of a powerful, but false, perjured, and traitorous friend.
We, therefore, entreat that all, who give their votes at all, at the ensuing election, will give them unequivocally for freedom. It will not be necessary that they should wait for, or that there should be, any national nomination of candidates. It will be sufficient that, in each State, electoral candidates be named. If any of them should be chosen, they can give their votes (as the constitution contemplated they would give them), for the persons they shall think most worthy.
But if, as is very likely to be the result, no one of these electoral candidates should be chosen, the votes given for them will nevertheless not have been thrown away. The great object is to procure the defeat of the Republicans. If defeated on the sixth of November, the faction itself will be extinct on the seventh. Those of its members who intend to support slavery, will then go over openly into its ranks; while those who intend to support liberty, will come unmistakably to her side. She will then know her friends from her foes. And thenceforth the issue will be distinctly made up, whether this be, or be not, a free country for all? And this one issue will hold its place before the country, until it shall be decided in favor of freedom.
"The House of Representatives shall be composed of members, chosen every second year by the people of the several States; and the electors in each State shall have the requisite qualifications for electors of the most numerous branch of the State legislature."—Art. I., sec. 2.
If, instead of going to the rescue of a fellow-citizen, whom we see set upon by a robber, ravisher, kidnapper, or murderer, we connive at the crime, either by declaring the act legal, or encouraging the idea that it can be committed with impunity, we thereby make ourselves accomplices in the crime. By this rule, if the persons enslaved in this country are, in the view of the United States Constitution, citizens of the United States, equally with the other citizens of the United States, and we nevertheless connive at and encourage their enslavement, either by declaring it legal, or by holding out the hope that it can be done with impunity, we are, not merely in the view of the moral law, but in the view of the constitution of the United States, criminal accomplices in their enslavement.
This being a case, in which a State was a party, it was tried by jury in the Supreme Court of the United States. From the preliminary remarks of the Chief-Justice, it will be seen that the judges were unanimous in the opinion given. He said:
"It is fortunate on the present, as it must be on every occasion, to find the opinion of the court unanimous. We entertain no diversity of sentiment; and we have experienced no difficulty in uniting in the charge, which it is my province to deliver. . . . .
"It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact, it is province of the jury, on questions of law, it is the province of the court, to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law, as well as the fact, in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are the best judges of facts, it is, on the other hand, presumable that the court are the best judges of law. But still both objects are lawfully within your power of decision." (State of Georgia, vs. Brailsford; III. Dallas, Rep. 1.)
This was in the year 1794.
This question of the power of congress to govern countries outside of the United States, has been twice before the supreme court of the United States. In both cases, although the court declared that "the possession of the power was unquestioned," their efforts to show in what part of the constitution the power was to be found, seemed to be very unsatisfactory, even to themselves.
In the first case, the court said:—
"In the meantime, Florida continues to be a territory of the United States, governed by virtue of that clause in the constitution, which empowers congress 'to make all needful rules and regulations respecting the territory, or other property of the United States.'
"Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts, that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern, may be the inevitable consequence of the right to acquire, territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned." (Am. Ins. Co. vs. Canter; I. Peters, 542.)
Here three possible sources of the power are suggested; but which one of the three is the true source, the court seem wholly unable to decide. It would seem to have been much more in keeping with judicial propriety and integrity, to have definitely determined the source of the power, before declaring that "whichever may be the source whence the power is derived, the possession of it is unquestioned." How the court can say that "the possession of a power is unquestioned," so long as they are unable to determine in what part of the constitution the power is to be found, is, to say the least of it, very mysterious. Nothing, evidently, short of that infallible discernment, which supreme courts assume to possess, could authorize them to affirm thus positively the existence of a power, the source of which they could not discover.
We assume that it has already been shown that the first of these suggestions, viz., that the power to govern territory, outside of the United States, is included in "the power to dispose of, and make all needful rules and regulations respecting the territory, or other property belonging to the United States," is wholly unfounded.
The second suggestion, viz., that the power "may result necessarily from the facts that the territory is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States," assumes the whole point in dispute, which is—whether territory and people, outside of the United States, are "within the power and jurisdiction of the United States."
The third suggestion, viz., that "the right to govern, may be the inevitable consequence of the right to acquire, territory," again assumes the whole point in dispute, which is—whether the United States have the right to acquire—that is, to purchase—territory and peoples outside of the United States.
It is plainly against the law of nature, and therefore impossible, for governments to acquire any rightful ownership of wilderness lands, and withhold them from, or demand a price for them of, those persons, who wish to take actual possession of them, and cultivate them. As it is impossible for any nation to have any rightful property in wild lands, it is impossible for one nation to convey any such ownership to another. It is, therefore, impossible that the United States can "acquire"—that is, purchase—any such ownership.
It is also against nature, and therefore impossible, that any government should own its people, as property, and have the right to dispose of them, as property. It is, therefore, impossible that the United States can "acquire," by treaty, any ownership of people outside of the United States, or consequently any right to govern them.
In the case of Dred Scott, the same question came again before the court. And the court (19 Howard, 443) cited and adopted the opinion previously given, viz., that "whichever may be the source whence the power is derived, the possession of it is unquestioned." But they offered no new argument in its support, except the intimation (p. 447) that the power to admit new States into the Union might "authorize the acquisition of territory, not fit for admission at the time, but to be admitted as soon as its population and situation entitle it to admission."
But there would be just as much reason in saying that, because A has the right to admit B as a partner in business, therefore he has a right to buy him, and hold him as a slave, until he is fit to be admitted as a partner.
The court confess (p. 446) that—
"There is certainly no power given by the constitution to the federal government to establish or maintain colonies, bordering on the United States, or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its own territorial limits in any way, except by the admission of new States. . . . No power is given to acquire a territory to be held and governed permanently in that character."
But they say (p. 447) that—
"It [the territory] is acquired to become a State, and not to be held as a colony, and governed by congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State, upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the government, and not for the judicial; and whatever the political department of the government shall recognize as within the limits of the United States, the judicial department is also bound to recognize, and to administer in it the laws of the United States," &c. &c.
This pretence of the court, that although the United States have no power to buy territory, and govern it as a colony for ever, they nevertheless have a right to buy it and govern it as a colony, until congress, in the exercise of its discretion, shall see fit to admit it as a State, is an entire fabrication and fraud. There is nothing whatever, in the constitution, that requires congress ever to admit a territory as a State. And if congress have authority to buy territory, and govern it as a colony at all, they have a right to hold it, and govern it as a colony for ever.
The truth is, that all our constitutional law on this subject—that is to say, all the constitutional law that has been practically acted upon by congress—instead of being found in our own constitution, is found only where nearly all the rest of our constitutional law is found, viz., in the tyrannical practices of other governments; and especially in the tyrannical practices of the English Government. Because other governments usurp the ownership of wild lands, and demand a price for them, our government does the same. Because other governments have colonies, and govern them against their will, our government usurps authority to do the same. And because other nations claim to own their colonies as property, and assume to sell them as such, our government claims the right to buy any that may be in the market. When, in truth, it has no more right to buy the people of other nations, than to sell those of our own.
