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moment, but in virtue of some power to make | duelist in Sheridan's comedy of the rivals, who or keep them so. What sort of power was it affecting to have no fear whatever of his adthat has made or kept them so? Sovereign versary, is, nevertheless, careful to admonish power it could not be, according to the honor- Sir Lucius to hold him fast. able gentlemen from Pennsylvania and New Hampshire:* and if sovereign power is unequal to such a purpose, less than sovereign power is yet more unequal to it. The laws of Spain and France could do nothing-the laws of the territorial government of Missouri could do nothing towards such a result, if it be a result which no laws, in other words, no sovereignty, could accomplish. The treaty of 1803 could do no more, in this view, than the laws of France, or Spain, or the territorial government of Missouri. A treaty is an act of sovereign power, taking the shape of a compact between the parties to it; and that which sovereign power cannot reach at all, it cannot reach by a treaty. Those who are now held in bondage, therefore, in Missouri, and their issue, are entitled to be free, if there be any truth in the doctrine of the honorable gentlemen; and if the proposed restriction leaves all such in slavery, it thus discredits the very foundation on which it reposes. To be inconsistent is the fate of false principles-but this inconsistency is the more to be remarked, since it cannot be referred to mere considerations of policy, without admitting that such considerations may be preferred (without a crime) to what is deemed a paramount and indispensable duty.
It is here, too, that I must be permitted to observe, that the honorable gentlemen have taken great pains to show that this restriction is a mere work of supererogation by the principal argument on which they rest the proof of its propriety. Missouri, it is said, can have no power to do what the restriction would prevent. It would be void, therefore, without the restriction. Why then, I ask, is the restriction insisted upon? Restraint implies that there is something to be restrained: But the gentlemen justify the restraint by showing that there is nothing upon which it can operate! They demonstrate the wisdom and necessity of restraint, by demonstrating that with or without restraint, the subject is in the same predicament. This is to combat with a man of straw, and to put fetters upon a shadow.
Let us take it for granted, however, that they are in earnest in their doctrine, and that it is very necessary to impose what they prove to be an unnecessary restraint: how do they support that doctrine?
The honorable gentleman on the other side* has told us as a proof of his great position, (that man cannot enslave his fellow man, in which is implied that all laws upholding slavery are absolute nullities,) that the nations of antiquity, as well as of modern times, have concurred in laying down that position as incontrovertible.
He refers us in the first place to the Roman law, in which he finds it laid down as a maxim: "Jure naturali omnes homines ab initio liberi nasebantur." From the manner in which this maxim was pressed upon us, it would not readily have been conjectured that the honorable gentleman who used it had borrowed it from a slave-holding empire, and still less from a book of the Institutes of Justinian, which treats of slavery, and justifies, and regulates it. Had he given us the context, we should have had the modifications of which the abstract doctrine was in the judgment of the Roman laws susceptible. We should have had an explanation of the competency of that law, to convert, whether justly or unjustly, freedom into servitude, and to maintain the right of a master to the service and obedience of his slave.
The gentlemen must, therefore, abandon either their doctrine or their restriction-their argument or their object for they are directly in conflict, and reciprocally destroy each other. It is evident, that they will not abandon their object, and of course, I must believe, that they hold their argument in as little real estimation as I myself do. The gentlemen can scarcely be sincere believers in their own principle. They have apprehensions, which they endeavor to conceal, that Missouri, as a State, will have power to continue slavery within its limits; and, if they will not be offended, I will venture to compare them, in this particular, with the
* Mr. Roberts, Mr. Lowrie, and Mr. Morril.
The honorable gentleman might also have gone to Greece for a similar maxim and a similar commentary, speculative and practical.
He next refers us to Magna Charta. I am somewhat familiar with Magna Charta, and I am confident that it contains no such maxim as the honorable gentleman thinks he has dis covered in it. The great charter was extorted from John, and his feeble son and successor, by haughty slave-holding barons, who thought only of themselves and the commons of England, (then inconsiderable,) whom they wished to enlist in their efforts against the crown. There is not in it a single word which condemns civil slavery. Freemen only are the objects of its protecting care. "Nullus liber homo," is its phraseology. The serfs, who were chained to the soil-the villeins regardant and in gross, were left as it found them. All England was then full of slaves, whose posterity would by law remain slaves as with us, except only that the issue followed the condition of the father instead of the mother. The rule was "Partus sequitur patrem"-a rule more favorable, undoubtedly, from the very precariousness of its application, to the gradual extinction of slavery, than ours, which has been drawn from the Roman law, and is of sure and unavoidable effect.
* Mr. King.
Still less has the petition of right, presented to Charles I., by the long Parliament, to do with the subject of civil slavery. It looked merely, as Magna Charta had not done before it, to the freemen of England-and sought only to protect them against royal prerogative and the encroaching spirit of the Stuarts.
As to the bill of rights, enacted by the Convention Parliament of 1688, it is almost a duplicate of the petition of right, and arose out of the recollection of that political tyranny from which the nation had just escaped, and the recurrence of which it was intended to prevent. It contains no abstract principles. It deals only with practical checks upon the power of the monarch, and in safeguards for institutions essential to the preservation of the public liberty. That it was not designed to anathematize civil slavery may be taken for granted, since at that epoch, and long afterwards, the English government inundated its foreign plantations with slaves, and supplied other nations with them as merchandise, under the sanction of solemn treaties negotiated for that purpose. And here I cannot forbear to remark that we owe it to that same government, when it stood towards us in the relation of parent to child, that involuntary servitude exists in our land, and that we are now deliberating whether the prerogative of correcting its evils belongs to the national or the State governments. In the early periods of our colonial history, every thing was done by the mother country to encourage the importation of slaves into North America, and the measures which were adopted by the Colonial Assemblies to prohibit it, were uniformly negatived by the crown. It is not therefore our fault, nor the fault of our ancestors, that this calamity has been entailed upon us; and notwithstanding the ostentation with which the loitering abolition of the slave trade by the British parliament has been vaunted, the principal consideration which at last reconciled it to that measure was, that by suitable care, the slave population in their West India islands (already fully stocked) might be kept up and even increased without the aid of importation. In a word, it was cold calculations of interest, and not the suggestions of humanity, or a respect for the philanthropic principles of Mr. Wilberforce, which produced their tardy abandonment of that abominable traffic.
Of the declaration of our independence, which has also been quoted in support of the perilous doctrines now urged upon us, I need not now speak at large. I have shown on a former occasion how idle it is to rely upon that instrument for such a purpose, and I will not fatigue you by mere repetition. The selfevident truths announced in the declaration of independence are not truths at all, if taken literally; and the practical conclusions contained in the same passage of that declaration prove that they were never designed to be so received.
The articles of confederation contain nothing on the subject; whilst the actual constitution recognizes the legal existence of slavery by various provisions. The power of prohibiting the slave trade is involved in that of regulating commerce, but this is coupled with an express inhibition to the exercise of it for twenty years. How then can that constitution which expressly permits the importation of slaves, authorize the national government to set on foot a crusade against slavery?
The clause respecting fugitive slaves is affirmative and active in its effects. It is a direct sanction and positive protection of the right of the master to the services of his slave as derived under the local laws of the States. The phraseology in which it is wrapped up still leaves the intention clear, and the words, "persons held to service or labor in one State under the laws thereof," have always been interpreted to extend to the case of slaves, in the various acts of Congress which have been passed to give efficacy to the provision, and in the judicial application of those laws. So also in the clause prescribing the ratio of representation-the phrase, "three-fifths of all other persons," is equivalent to slaves, or it means nothing. And yet we are told that those who are acting under a constitution which sanctions the existence of slavery in those States which choose to tolerate it, are at liberty to hold that no law can sanction its existence !
It is idle to make the rightfulness of an act the measure of sovereign power. The distinction between sovereign power and the moral right to exercise it, has always been recognized. All political power may be abused, but is it to stop where abuse may begin? The power of declaring war is a power of vast capacity for mischief, and capable of inflicting the most wide-spread desolation. But it is given to Congress without stint and without measure. Is a citizen, or are the courts of justice to inquire whether that, or any other law, is just, before they obey or execute it? And are there any degrees of injustice which will withdraw from sovereign power the capacity of making a given law?
But sovereignty is said to be deputed power. Deputed-by whom? By the people, because the power is theirs. And if it be theirs, does not the restriction take it away? Examine the constitution of the Union, and it will be seen that the people of the States are regarded as well as the States themselves. The constitution was made by the people, and ratified by the people.
Is it fit, then, to hold that all the sovereignty of a State is in the government of the State? So much is there as the people grant: and the people can take it away, or give more, or new model what they have already granted. It is this right which the proposed restriction takes from Missouri. You give them an immortal constitution, depending on your will, not on theirs. The people and their posterity are to
be bound for ever by this restriction; and | another and a different act in its place. The upon the same principle, any other restriction proposition contained in the clause is universal may be imposed. Where then is their power in one sense only. It is particular in another. to change the constitution, and to devolve new It is universal as to the power to admit or sovereignty upon the State government? You refuse. It is particular as to the being or thing limit their sovereign capacity to do it; and to be admitted, and the compact by which it is when you talk of a State, you mean the people to be admitted. The sophistry consists in exas well as the government. The people are the tending the universal part of the proposition source of all power-you dry up that source. in such a manner as to make out of it another They are the reservoir-you take out of it universal proposition. It consists in confoundwhat suits you. ing the right to produce or to refuse to produce a certain defined effect, with a right to produce a different effect by refusing otherwise to produce any effect at all. It makes the actual right the instrument of obtaining another right with which the actual right is incompatible. It makes, in a word, lawful power the instrument of unlawful usurpation. The result is kept out of sight by this mode of reasoning. The discretion to decline that result, which is called a universal proposition, is singly obtruded upon us. But in order to reason correctly, you must keep in view the defined result, as well as the discretion to produce or to decline to produce it. The result is the particular part of the proposition; therefore, the discretion to produce or decline it, is the universal part of it. But because the last is found to be universal, it is taken for granted that the first is also universal. This is a sophism too manifest to impose.
But discarding the machinery of syllogisms as unfit for such a discussion as this, let us look at the clause with a view of interpreting it by the rules of sound logic and common sense.
The power is "to admit new States into this Union;" and it may be safely conceded that here is discretion to admit or refuse. The question is, what must we do if we do any thing? What must we admit, and into what? The answer is a State-and into this Union.
The distinction between federal rights and local rights, is an idle distinction. Because the new State acquires federal rights, it is not, therefore, in this Union. The Union is a compact; and is it an equal party to that compact, because it has equal federal rights?
It is said that this government is a government of deputed powers. So is every government-and what power is not deputed remains. But the people of the United States can give it more if they please, as the people of each State can do in respect to its own government. And here it is well to remember that this is a government of enumerated, as well as deputed powers, and to examine the clause as to the admission of new States, with that principle in view. Now assume that it is a part of the sovereign power of the people of Missouri to continue slavery, and to devolve that power upon its government-and then to take it away -and then to give it again. The government is their creature-the means of exercising their sovereignty, and they can vary those means at their pleasure. Independently of the Union, their power would be unlimited. By coming into the Union, they part with some of it, and are thus less sovereign.
Let us then see whether they part with this power.
If they have parted with this portion of sovereign power, it must be under that clause of the national constitution which gives to Congress "power to admit new States into this Union." And it is said that this necessarily implies the authority of prescribing the conditions, upon which such new States shall be admitted. This has been put into the form of a syllogism which is thus stated:
Major. Every universal proposition includes all the means, manner, and terms of the act to which it relates.
Minor. But this is a universal proposition. Conclusion. Therefore, the means, manner, and terms are involved in it.
of the great objects of the Union. The Union |
The argument that the compact may be forced, shows that the federal predicament is changed. The power of the Union not only acts on persons or citizens, but on the faculty of the government, and restrains it in a way which the constitution no where authorizes. This new obligation takes away a right which is expressly "reserved to the people or the States," since it is no where granted to the government of the Union. You cannot do indirectly what you cannot do directly. It is said that this Union is competent to make compacts. Who doubts it? But can you make this compact? I insist that you cannot make it, because it is repugnant to the thing to be done.
Will the gentlemen tell us that it is the quantity of slaves, not the quality of slavery, which takes from a government the republican form? Will they tell us (for they have not yet told us) that there are constitutional grounds (to say nothing of common sense) upon which the slavery which now exists in Missouri may be reconciled with a republican form of government, while any addition to the number of The effect of such a compact would be to its slaves (the quality of slavery remaining the produce that inequality in the Union, to which same) from the other States, will be repugnant the constitution, in all its provisions, is adverse. to that form, and metamorphose it into some Every thing in it looks to equality among the nondescript government disowned by the conmembers of the Union. Under it, you cannot stitution? They cannot have recourse to the produce inequality. Nor can you get before- treaty of 1803 for such a distinction, since inhand of the constitution, and do it by anticipa-dependently of what I have before observed on tion. Wait until a State is in the Union, and that head, the gentlemen have contended that you cannot do it: yet it is only upon the State the treaty has nothing to do with the matter. in the Union that what you do begins to act. They have cut themselves off from all chance of a convenient distinction in or out of that But it seems, that although the proposed treaty, by insisting that slavery beyond the old restriction may not be justified by the clause United States is rejected by the constitution, of the constitution which gives power to admit and by the law of God as discoverable by the new States into the Union, separately consid-aid of either reason or revelation; and moreered, there are other parts of the constitution over that the treaty does not include the case, which, combined with that clause, will warrant and if it did could not make it better. They it. And first, we are informed that there is a have therefore completely discredited their own clause in this instrument which declares that theory by their own practice, and left us no Congress shall guarantee to every State a re- theory worthy of being seriously controverted. publican form of government; that slavery This peculiarity in reasoning of giving out a and such a form of government are incompati-universal principle, and coupling with it a pracble; and finally, as a conclusion from these tical concession that it is wholly fallacious, has premises, that Congress not only have a right, indeed run through the greater part of the but are bound to exclude slavery from a new arguments on the other side; but it is not, as I State. Here again, sir, there is an edifying in- think, the more imposing on that account, or consistency between the argument and the the less liable to the criticism which I have measure which it professes to vindicate. By here bestowed upon it. the argument it is maintained that Missouri cannot have a republican form of government, and at the same time tolerate negro slavery. By the measure it is admitted that Missouri may tolerate slavery, as to persons already in bondage there, and be nevertheless fit to be received into the Union. What sort of constitutional mandate is this which can thus be made to bend, and truckle, and compromise as if it were a simple rule of expediency that might admit of exceptions upon motives of countervailing expediency. There can be no such pliancy in the peremptory provisions of the constitution. They cannot be obeyed by moieties and violated in the same ratio. They must be followed out to their full extent, or
There is a remarkable inaccuracy on this branch of the subject into which the gentlemen have fallen, and to which I will give a moment's attention without laying unnecessary stress upon it. The government of a new State, as well as of an old State, must, I agree, be republican in its form. But it has not been very clearly explained what the laws which such a government may enact can have to do with its form. The form of the government is material only as it furnishes a security that those laws will protect and promote the public happiness, and be made in a republican spirit The people being, in such a government, the fountain of all power, and their servants being periodically responsible to them for its exercise, the consti
treated with that decent neglect which has at least the merit of forbearing to render contumacy obtrusive by an ostentatious display of the very duty which we in part abandon. If the decalogue could be observed in this casuistical manner, we might be grievous sinners, and yet be liable to no reproach. We might en-persist in all our habitual irregularities, and still be spotless. We might, for example, continue to covet our neighbors' goods, provided they were the same neighbors whose goods we had before coveted-and so of all the other commandments.
tution of the Union takes for granted, (except | fundamental laws of Lycurgus, having for its so far as it imposes limitations,) that every such object the encouragement of that very spirit. exercise will be just and salutary. The intro- Attica was full of slaves-yet the love of liberduction or continuance of civil slavery is mani- ty was its characteristic. What else was it that festly the mere result of the power of making foiled the whole power of Persia at Marathon laws. It does not in any degree enter into the and Salamis? What other soil than that which form of the government. It presupposes that the genial sun of republican freedom illumiform already settled, and takes its rise not from nated and warmed, could have produced such the particular frame of the government, but men as Leonidas and Miltiades, Themistocles from the general power which every govern- and Epaminondas? Of Rome it would be sument involves. Make the government what perfluous to speak at large. It is sufficient to you will in its organization and in the distri- name the mighty mistress of the world, before bution of its authorities, the introduction or Sylla gave the first stab to her liberties and the continuance of involuntary servitude by the great dictator accomplished their final ruin, to legislative power which it has created can have be reminded of the practicability of union beno influence on its pre-established form, whether tween civil slavery and an ardent love of libmonarchical, aristocratical, or republican. The erty cherished by republican establishments. form of government is still one thing, and the law, being a simple exertion of the ordinary faculty of legislation by those to whom that form of government has intrusted it, another. The gentlemen, however, identify an act of legislation sanctioning involuntary servitude with the form of government itself, and then assure us that the last is changed retroactively by the first, and is no longer republican!
If we return home for instruction upon this point, we perceive that same union exemplified in many a State, in which "liberty has a temple in every house, an altar in every heart," while involuntary servitude is seen in every direction. Is it denied that those States possess a republican form of government? If it is, why does our power of correction sleep? Why is the constitutional guaranty suffered to be inBut let us proceed to take a rapid glance at active? Why am I permitted to fatigue you, the reasons which have been assigned for this as the representative of a slaveholding State, notion that involuntary servitude and a repub- with the discussion of the "nuga canora lican form of government are perfect antipa- (for so I think them) that have been forced into thies. The gentleman from New Hampshire* this debate contrary to all the remonstrances has defined a republican government to be that of taste and prudence? Do gentlemen perceive in which all the men participate in its power the consequences to which their arguments and privileges: from whence it follows that must lead if they are of any value? Do they where there are slaves, it can have no existence. reflect that they lead to emancipation in the A definition is no proof, however, and even if old United States-or to an exclusion of Delait be dignified (as I think it was) with the name ware, Maryland, and all the South, and a great of a maxim, the matter is not much mended. portion of the West from the Union? My It is Lord Bacon who says "that nothing is so honorable friend from Virginia has no business easily made as a maxim;" " and certainly a here, if this disorganizing creed be any thing definition is manufactured with equal facility. but the production of a heated brain. The A political maxim is the work of induction, and State to which I belong, must "perform a luscannot stand against experience, or stand on tration "-must purge and purify herself from any thing but experience. But this maxim, or the feculence of civil slavery, and emulate the definition, or whatever else it may be, sets fact States of the North in their zeal for throwing at defiance. If you go back to antiquity, you down the gloomy idol which we are said to will obtain no countenance for this hypothesis; worship, before her senators can have any title and if you look at home you will gain still less. to appear in this high assembly. It will be in I have read that Sparta, and Rome, and Athens, vain to urge that the old United States are exand many others of the ancient family, were ceptions to the rule-or rather (as the gentlerepublics. They were so in form undoubtedly men express it), that they have no disposition -the last approaching nearer to a perfect to apply the rule to them. There can be no democracy than any other government which exceptions by implication only, to such a rule; has yet been known in the world. Judging of and expressions which justify the exemption of them also by their fruits, they were of the the old States by inference, will justify the like highest order of republics. Sparta could exemption of Missouri, unless they point exscarcely be any other than a republic, when a clusively to them, as I have shown they do not. Spartan matron could say to her son just march- The guarded manner, too, in which some of ing to battle, "Return victorious, or return no the gentlemen have occasionally expressed more." It was the unconquerable spirit of themselves on this subject, is somewhat alarmliberty, nurtured by republican habits and in- ing. They have no disposition to meddle with stitutions, that illustrated the pass of Ther- slavery in the old United States. Perhaps not mopylæ. Yet slavery was not only tolerated-but who shall answer for their successors? in Sparta, but was established by one of the Who shall furnish a pledge that the principle once ingrafted into the constitution, will not grow, and spread, and fructify, and overshadow
* Mr. Morril.