A Report of the Debates and Proceedings in the Secret Sessions of the Conference Part 28

In the Ma.s.sachusetts Convention to adopt the Const.i.tution, Gen. HEATH said:

"Slavery cannot be extended. By their ordinance Congress has declared that the new States shall be republican States, and have no slavery."

Colonel BLAND, a member of the Convention from Virginia, said he "wished slavery had never been introduced into America," and that "he was willing to join in any measure that would prevent its extending farther." To allow it in new States would not prevent its extending farther, and therefore it was prohibited in such States.

Doctor RAMSAY, a member of the Convention of South Carolina, in his History of the United States, says:

"Under these liberal principles, Congress, in organizing colonies, bound themselves to impart to their inhabitants all the privileges of coequal States.... These privileges are not confined to any particular country or complexion.

They are communicable to the emanc.i.p.ated slave, for in the new State of Ohio, slavery is altogether prohibited."

This compact, then, applies to State as well as Territorial governments, and was so understood in all sections of the country--northern, central, and southern--when the Const.i.tution was ratified.

Let me now call attention to the very significant proviso to the sixth article. What does the word original mean, and what does the whole article mean with that word in the proviso?

"There shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes, &c.; _Provided, always_, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid."

This means that there shall be neither slavery nor involuntary servitude, except for the purpose of reclaiming such fugitives--and I admit that slaves were intended--as are lawfully claimed in any one of the original States. The very fact of the proviso implies that Congress understood that the right of reclamation could not exist, unless it was excepted.

And of course it could only exist for the purpose excepted. The intention was to grant the right to the original States, but to limit it to them. It is impossible to conceive of a measure for framing the proviso as it is, if that had not been the intention. As the ordinance itself made provision for the formation of new States, such States must have been in the minds of members when acting upon it. If the object had been to authorize the reclamation of slaves escaping to this territory from other States than original States, it is certain the word "original" would have been omitted. It was intended for the purpose of limiting the right.

Now observe that this article, proviso and all, is part of an unalterable compact to which the Const.i.tution has given validity.

n.o.body pretends Congress has ever had the power to alter it. Mr.

TOOMBS denies any such power in express terms. A law which Congress cannot alter has substantially the force and effect of a const.i.tutional proviso. This, then, is the only law for the reclamation of fugitive slaves in the five States of the northwest territory; and there can be no other, the Const.i.tution having made it perpetually valid.

Such obviously is the meaning and legal effect of the fugitive slave provision in the ordinance. And the meaning of that, derived as it is not merely from the consent of the Federal and State conventions, but from their concurrent action, necessarily fixes the meaning of the provision on the same subject in the Const.i.tution, and shows how it must have been understood. As the two were parts of the same compromise, of course neither was understood to be inconsistent with the other. The provision in the Const.i.tution is in these words:

"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

So far as this describes, or was understood to describe, persons held to service or labor as slaves, it necessarily must also have been understood to apply only to the original States. This follows from what has already been shown. And it must have been so understood for another reason, because it was only "in" and "under" the laws of those States that persons could be held to service or labor as slaves. Under the laws of the Territories and new States, their being so held was forever prohibited. Hence, none but those escaped from one of the original States could ever be legally liable to reclamation, according to the understanding and intention of the original parties to this compact. This manifestly was the meaning of "the fathers," when the ordinance and Const.i.tution were framed and ratified.

The two provisions must be construed together. That in the ordinance was intended for the Territories and new States, and that in the Const.i.tution for the original States. If that in the Const.i.tution had been intended for the Territories, it would have read, "escaping into another State or into the Territory," and that in the ordinance would have been entirely omitted. The proviso to the prohibition in the Missouri Compromise in 1820 is a striking confirmation of this. That was copied, word for word, from the ordinance of 1787, or original compromise, except subst.i.tuting for the words "in any one of the States," the words "in any State or Territory of the United States,"

as follows:

"_Provided, always_, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive," &c. And in the compromise of 1820:

"_Provided, always_, That any person escaping into the same from whom labor or service is lawfully claimed in any State or Territory of the United States, such fugitive," &c.

Why say "in any State or Territory of the United States," instead of "in any one of the original States," as in the ordinance of 1787, unless the Congress of 1820 understood the latter to limit the right of recovering fugitive slaves to the original States, and meant by the Missouri bill to extend it to all the States and Territories? They did extend it, but in palpable violation of the "spirit of the compact of the fathers," and of the "policy of 1787."

Originally the Southern States committed themselves to the policy of slavery restriction, by a compact in the nature of a contract for a consideration. By their own votes, they relinquished all pretence of right to any slaves beyond the jurisdiction of the original States.

Slaveholders, as such, voluntarily shut themselves out of the new States, in consideration of the right of recovering their fugitive slaves in whatever part of America they might take refuge. The object, as I have clearly shown, was to secure to slavery in the original States the right of recovering fugitives, whether their escape should be from one of those States to another, or to the Territories and new States; but to make that the limit, both of the right of recovery on one side, and of the obligation to permit or allow it, on the other.

It follows, then:

_First_: That as between the new States of Ohio, Indiana, Illinois, Michigan, and Wisconsin, no right of reclamation exists, or can exist, there being no power in Congress, as the South admit, to alter the compact in the ordinance of 1787, which denies this right.

_Second_: That no person, escaping from those States into any other State or Territory, can be reclaimed as a fugitive slave, because no person can be held as a slave under their laws.

_Third_: That no slave escaping from the slave States of Missouri, Arkansas, Texas, Louisiana, or Florida, into Ohio, Indiana, Illinois, Michigan, or Missouri, can be lawfully reclaimed as a fugitive slave, because Missouri, Arkansas, Texas, Louisiana, and Florida are not _original_ States.

_Fourth_: If slaves escape from any State or Territory other than the original States, into the States of the northwestern territory, no lawful power can touch them. The moment they reach those States they become free, because labor or service cannot lawfully be claimed of them in an original State.

_Fifth_: After the Missouri Compromise of 1820, slaves escaping from Arkansas and Missouri, for example to Kansas, Nebraska, Iowa, and Minnesota, could be reclaimed, but escaping to Illinois, Wisconsin, Michigan, Indiana, and Ohio, they could not be. And the Congress of 1820 so understood it. The particular in which the Missouri proviso was altered in copying from the ordinance of 1787, is proof enough of this.

But did the framers of the Government intend to distinguish in this manner between new and original slave States? Certainly not; and the reason is, they did not mean to have any new slave States. Otherwise they certainly did mean to make this distinction, for nothing can be clearer than that Louisiana and Missouri cannot go to Ohio to recover fugitive slaves within the meaning of this "compact of the fathers;"

while Georgia can. Manifestly we have departed from the system devised by the fathers in allowing Missouri, Texas, Arkansas, Louisiana, and Florida to be admitted with slavery, which explains, and nothing else can, this anomalous condition of things.

There can be no escape from these conclusions, but to deny that the ordinance has ever had any validity under the Const.i.tution; which would be scarcely less than to deny that the Const.i.tution itself had ever been a valid instrument. Having the like unequivocal sanction of national authority, and expressing alike in the words of Mr. Toombs, "the collective will of the whole," they must stand or fall together.

Originally the territory was not divided by the line of 36 30', or by any other line giving part to freedom and part to slavery. It was all secured, and by consent of the South, to freedom. There is nothing, therefore, in the original compromise, to justify the remark of the Editor of the Boston _Courier_ in a recent number of that paper, that "below the line of 36 30', the South have the right of prescription."

Freedom has an older prescriptive right to all the Territories. The line established by the compromise, between slavery permitted and slavery prohibited, was the boundary line between the then existing States and the Territory of the United States; or the line between exclusive national jurisdiction and the jurisdiction of the States. It is an erroneous a.s.sumption, therefore, that the free States, by the introduction of slavery south of 36 30', as well as north of it, would receive more than a fair share or moiety of rights and privileges, as between States or parties ent.i.tled to equal privileges.

The idea that the extension of slavery under the Federal Government can be claimed by anybody south or north as a right, is wholly inadmissible. The _Courier_ will hold the following declarations from Mr. WEBSTER to be good authority, if others do not:

"Wherever there is a foot of land to be staid back from becoming slave territory, I am ready to a.s.sert the principle of excluding slavery." "We are to use the first and last, and every occasion which offers, to oppose the extension of slave power."

"I have to say, that while I hold with as much integrity, I trust, and faithfulness, as any citizen of this country, to all the original amendments and compromises in which the Const.i.tution under which we now live was adopted, I never could, and never can persuade myself to be in favor of the admission of other States into this Union as slave States with the inequalities which were allowed and accorded to the slaveholding States then in existence by the Const.i.tution. I do not think that the free States ever expected, or could expect, that they would be called upon to admit further slave States.... I think they have the clearest right to require that the State coming into the Union, shall come in upon an equality; and if the existence of slavery be an impediment to coming in on an equality, then the State proposing to come in should be required to remove that inequality by abolis.h.i.+ng slavery or take the alternative of being excluded. I put my opposition on the political ground that it deranges the balance of the Const.i.tution."

Wherever there is a foot of land to be staid back from slavery! Every occasion to be used to oppose the extension of the slave power! New States to abolish the inequality of slavery, or be excluded! I suppose Northern conservatives of the cla.s.s referred to have endorsed those doctrines and declarations of Mr. WEBSTER a thousand times, as sound, national, conservative, and const.i.tutional. But no Republican, so far as I know, has ever proposed to go an inch beyond the line of policy they indicated. The Chicago, or Republican Platform, certainly does not. And yet that same line of policy, when advocated by Republicans, is denounced as unsound, sectional, radical, and unconst.i.tutional.

We have a great deal said about the equality of the States; of the new with the original States. This is said to be a fundamental doctrine of the Const.i.tution.

It is claimed that citizens of the slaveholding States have an equal right in the Territories with the citizens of the non-slaveholding States; and I admit they have. But it is also claimed that they have the same right to the protection of property in slaves as property in cotton. This I deny. There is no such doctrine of State equality in the Const.i.tution, nor was any thing like it contemplated by its framers. On the contrary, the Const.i.tution denied this doctrine by clear implication, certainly for the first twenty years. It withheld from Congress the power to prohibit the importation of slaves into the "existing" States till 1808, while their importation into the Territories and new States might be prohibited at once. Ohio was admitted in 1802. Congress had power to prohibit the importation of slaves into that State from that time, and did do it in effect by the very terms and conditions of her admission, which required that her Const.i.tution and Government should not be repugnant to the ordinance of the 13th of July, 1787, which interdicted slavery. But Congress had no power to prohibit the importation of slaves into Georgia till after 1808. Georgia and Ohio, therefore, in this respect, were not political equals from 1802 to 1808.

Nor have the States been all political equals in the sense claimed, since 1808. It will surprise many to be told that there is nothing in the Const.i.tution about State equality, and especially nothing that affirms the equality of the new with the original States, even after 1808. And yet this is true. The only pa.s.sages which refer to the new States, except impliedly in the importation clause, are these: "New States may be admitted by Congress into the Union; but no new State shall be formed or erected within the jurisdiction of any other State." There is nothing, certainly, in this language to show that the new States were to be admitted on an equality, or an equal footing with the original States.

And yet provision was made, when the Const.i.tution was framed, for the admission of all the new States to be formed in United States Territory then possessed, "on an equal footing with the original States." But it was a footing of equality which was in nowise inconsistent with an absolute denial of the right to establish the inequality of slavery. And this is proved by the only compact in the English language contemporaneous with the Const.i.tution which touches the subject, namely, that part of the fifth article of compact in the ordinance of 1787 which I have already quoted. There can be no shadow of claim that any thing else secured, or pretended to secure, the right of new States to admission into the Union on an equal footing with the original States. That, I admit, did. It is, to repeat it, in these words:

"Whenever any of said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States in all respects whatever, and shall be at liberty to form a permanent Const.i.tution and State Government; _provided_ the Const.i.tution and Government so to be formed, shall be republican in conformity to the principles of these articles," the 6th, which prohibited slavery, included.

And this is all there is, contemporaneous with the Const.i.tution, on the subject of the equality of the States. The very instrument, then, which secured the admission of new States, on an equal footing with the original States, itself provided that they were never to tolerate slavery.

The new States, then, neither were to have, nor have they, any political equality which the prohibition violates, as Southern gentlemen contend. Certainly those formed and admitted under the plan of Government devised by the fathers, have not. In this sense they are not political equals. The original States were, from the beginning, and have ever been, political equals in this and every sense. Not, however, because the Const.i.tution says they are, for it says nothing on the subject; but because they were independent sovereignties, and as such, made a compact which united them under one Federal Government, with discriminating restrictions upon the subject of slavery, or upon any other subject. But the fact that the evil and inequality of slavery existed in the original States, and was tolerated from necessity, was no reason why it should be allowed in the Territories and new States, where it did not and need never exist.

So the power of the Territories and new States was sufficiently restricted to secure equality in personal rights and freedom to all the "inhabitants." Of course it cannot be pretended that the mere fact that one or more States had established, and had power to perpetuate slavery, secured to new States the right to establish and perpetuate the same enormity, as a necessary result of State equality. That would make the right or power of one State, resulting from State equality, necessarily coextensive with tolerated evil in another. Manifestly "the fathers" had no such idea as this. Theirs was the common sense and rational idea that a moral and political evil which existed in the old States, and could not be removed, need not for that reason be tolerated in new States.

The Const.i.tution guarantees to each State a republican form of Government merely; but the ordinance of 1787 provides that the "Const.i.tution and Government of each new State shall be republican."

Why this difference? In the original States slavery existed, or in most of them; and so far they were anti-republican in fact and practice, though republican in form. The framers of the Const.i.tution, having no power to abolish this anti-republican inst.i.tution of slavery in those States, did nothing more than guarantee them Governments republican in form. But having the power to exclude it from the new States, they did exclude it, and provided that their const.i.tutions and governments should be republican. That this was the reason for the difference may be inferred from the remark of LUTHER MARTIN, a distinguished member of the Federal Convention, that "slavery is inconsistent with the genius of republicanism," and of General HEATH in the Ma.s.sachusetts Convention, that "Congress has declared that the new States shall be republican and have no slavery." No other reason can be given. Thus republicanism in fact, and not in form merely, was made a condition of admitting new States. This is part of the unalterable compact to which validity was given by the Const.i.tution.

The Const.i.tution, therefore, while it guarantees a republican form of government, does in fact, by giving validity to the ordinance, guarantee republican governments to the new States. This is another very significant fact harmonizing perfectly with all the other facts in the original plan for extending the Union by admitting States from Territories.

The States are all equals, or not, according to the terms of their admission. The original States became members of the Union upon the single condition of ratifying the Const.i.tution, which left them at liberty to tolerate slavery or not. But the States formed in the only Territory which belonged to the United States at the time the Const.i.tution was framed, were admitted on condition that slavery should be perpetually interdicted within their limits, and as parties to an unalterable compact to that effect.

Slavery was regarded, South as well as North, when the Const.i.tution was adopted, as a moral and political evil. This had been the general sentiment of the country many years before, and continued to be long after that period. The representatives of the extensive district of Darien in Georgia, on the 12th of January, 1775, spoke of slavery as "founded in injustice and cruelty, and highly dangerous to our liberties." JEFFERSON p.r.o.nounced it "an injustice and enormity." The present Chief Justice of the United States, Mr. TANEY, who acted many years ago as counsel of Rev. Mr. GRUBER, who was indicted in the State of Maryland for preaching a sermon on the evils of slavery, spoke as follows in his defence:

"Mr. GRUBER did quote the language of our great act of National Independence, and insisted on the principles contained in that venerated instrument. He did rebuke those masters who, in the exercise of power, are deaf to the call of humanity, and he warned them of the evils they might bring upon themselves. He did speak in abhorrence of those who live by trading in human flesh, and enrich themselves by tearing the husband from the wife, the infant from the bosom of the mother, and this was the head and front of his offending. So far is he from being the object of punishment in any form of proceeding, that we are prepared to maintain the same principles, and to use, if necessary, the same language here in the Temple of Justice, and in the presence of those who are the ministers of the law."

"A hard necessity, indeed, compels us to endure the evils of slavery for a time. While it continues it is a blot on our national character; and every real lover of freedom confidently hopes that it will be effectually, though it must be gradually, wiped away, and earnestly looks for the means by which the necessary object may be best obtained.

And until it shall be accomplished, until the time shall come when we can point, without a blush, to the language held in the Declaration of Independence, every part of humanity will seek to lighten the galling chain of slavery, and better, to the utmost of his power, the wretched condition of the slave."

Mr. JOHNSON, of Maryland:--Where did you get that?